Navigating the turmoil of job loss can be overwhelming and often be tinged with feelings of distress and injustice. Yet, it’s important to remember that the law might be on your side – through the avenue of an unfair dismissal claim.
The Fair Work Act 2009 makes it clear that a dismissal could be classified as unfair (and hence, unlawful) if it’s carried out in a manner that is “harsh, unjust or unreasonable.” If this sounds like your situation, you may be eligible to submit an unfair dismissal application to the Fair Work Commission.
To ensure a fair playing field, it’s paramount that both employers and employees understand their legal responsibilities and rights under these regulations. This blog post will help to clarify the process of lodging an unfair dismissal claim, and what follows after.
Eligibility for an Unfair Dismissal Claim:
The ability to file an unfair dismissal claim depends on several criteria such as:
- The nature of your dismissal
- Your formal status as an ’employee’
- The identity of your employer
- The total number of employees at your workplace
- Your tenure duration
- Your annual salary
You may not be able to lodge an unfair dismissal claim if:
- You operate as an independent contractor
- You’re a volunteer or intern
- Your contract expired naturally
- You haven’t completed the minimum employment duration (six months for businesses with 15 or more employees, 12 months for smaller firms)
- Your annual earnings exceed $167,500 as at July 2023
However, exceptions to these rules may apply in certain situations. For example, if you’re labelled as an independent contractor but are treated like an employee, you may still qualify for an unfair dismissal claim. If you’re in the midst of job loss, don’t delay in seeking professional advice about your eligibility for an unfair dismissal claim. Our experts at Frontline Employment Defenders are here to help.
Understanding the “Harsh, Unjust, or Unreasonable” Dismissal Criteria:
To have a dismissal deemed unfair, it must be proven to the Fair Work Commission that it was harsh, unjust, or unreasonable. Each case is unique and complex, and there’s no one-size-fits-all rule for determining whether a dismissal meets these criteria. The Fair Work Commission examines each case individually.
To establish if your dismissal was unfair, it’s vital to get professional advice as soon as possible. Contact our knowledgeable team at Frontline Employment Defenders to discuss your potential unfair dismissal claim.
The Unfair Dismissal Application Process:
After you lodge your application, your employer will have a chance to respond and justify their decision.
Following this, the Fair Work Commission arranges a conciliation conference, usually held via a call. The goal of this meeting is to foster a constructive dialogue between you (or your representative) and your employer, aiming for an agreement that satisfies both parties.
If conciliation fails to reach a resolution, a formal hearing takes place before a Commission Member, who operates in a judicial capacity. They review all the evidence, hear witness testimony, and then make a ruling on the fairness of the dismissal.
Given the emotional stress and intricate nature of unfair dismissal claims, it’s beneficial to have experienced professionals representing you. Our team at Frontline Employment Defenders is ready to stand up for you. If you need help with your application, reach out to us.
Strict Time Frames for Unfair Dismissal Claims:
The window for unfair dismissal claims is strictly limited to 21 days from your dismissal date. Applications submitted after this period are only considered under exceptional circumstances.
What Happens If Your Unfair Dismissal Claim Is Successful?
If the Commission Member rules in your favour, they may order your employer to either reinstate your position or compensate you financially for your losses.
Reinstatement: This is a common outcome for successful unfair dismissal claims. Where feasible, you would be restored to your previous role or a similar one, with the same responsibilities, hours, and pay. Depending on the circumstances, your employer may also be obliged to provide back pay from the date of dismissal.
Compensation: If reinstatement is not a practical solution due to a strained relationship with your employer, monetary compensation is the alternative. Factors considered when deciding on the compensation amount include termination notice payments, income post-dismissal, your length of service, efforts to mitigate financial loss, among others.