Losing your job is often a bitter blow, filled with feelings of indignity, injustice, and disillusionment. However, it’s crucial to know that there might be a way to challenge this adversity: through an unfair dismissal claim.
The Fair Work Act 2009 defines a dismissal as unfair if it’s conducted in a “harsh, unjust, or unreasonable” manner. If your dismissal reflects these terms, you may have the grounds to file an unfair dismissal application with the Fair Work Commission.
Understanding the rules surrounding dismissals is crucial for both employees and employers. In this blog post, we’ll provide a roadmap to explore the ins and outs of making an unfair dismissal claim and the ensuing process.
Unfair Dismissal Claim: Do You Qualify?
Several considerations determine your eligibility for an unfair dismissal claim, such as the nature of your dismissal, your employment status, the identity of your employer, their workforce size, the duration of your employment, and your annual earnings.
Typically, an unfair dismissal claim may not apply if:
- You serve as an independent contractor
- You’re a volunteer or intern
- Your employment contract ended as per its specified period
- Your tenure is less than the minimum required (six months for employers with 15+ employees, and 12 months for those with fewer)
However, these factors aren’t always clear-cut, and certain exceptions may be applicable. For instance, even if you’re classified as an independent contractor but have been functioning as an employee, you might still be eligible for an unfair dismissal claim. The Fair Work Commission may also allow an extension in the submission deadline under extraordinary circumstances.
In case you’re recently unemployed, it’s crucial to promptly consult a professional to assess your eligibility, ensuring a timely unfair dismissal claim. Frontline Employment Defenders are always at your service for support.
Dissecting “Harsh, Unjust or Unreasonable” Dismissal:
To label a dismissal as unfair, you must present evidence to the Fair Work Commission indicating that your job termination was either harsh, unjust, or unreasonable.
Every unfair dismissal application is distinct and often complicated, which means there isn’t a universal guideline to determine whether a dismissal was harsh, unjust, or unreasonable. The Fair Work Commission evaluates each case individually.
To ascertain if your termination fits these categories, it’s vital to consult with seasoned IR/ER paid agents such as Frontline Employment Defenders promptly.
The Journey of an Unfair Dismissal Application:
Once you’ve filed the application, your employer gets a chance to respond, elucidating why they deem the dismissal fair.
Post this response, the Fair Work Commission orchestrates a conciliation conference, usually over a phone call. The objective here is to promote constructive dialogue between you (or your representative) and your employer, aiming at resolution.
If the conciliation fails to reach an agreement, the case moves to a formal hearing under a Commission Member, similar to a judge’s role. This member scrutinizes the evidence and listens to testimonies before passing a final judgment.
Considering the complexities associated, having an experienced employment agent by your side is beneficial. Frontline Employment Defenders is here to provide expert assistance.
Time Limits on Unfair Dismissal Claims:
Unfair dismissal claims come with strict time constraints. As an employee, you have 21 days from the dismissal date to lodge an application with the Fair Work Commission, with late submissions entertained only under exceptional circumstances.
What Happens If You Win?
Should the Commission Member find your dismissal unfair, they can instruct your employer to either reinstate you or compensate for your loss.
The usual resolution for an unfair dismissal is reinstatement. However, if the relationship with the employer is strained beyond repair, financial compensation serves as an alternative. The compensation calculation considers factors like dismissal notice payments, post-dismissal earnings, your service duration, and any efforts made to mitigate financial losses.
Get in touch with Frontline Employment Defenders at 1300 089 353 or visit https://www.fled.com.au today for further assistance.