You may be entitled to compensation or reinstatement through an Unfair Dismissal Case. Our Lawyers & HR Specialists work together to resolve your employment dispute in a discrete and fair manner

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WHAT IS UNFAIR DISMISSAL?

Being unfairly dismiss or forced to resign because of something your employer did could come as a huge shock and can disrupt your life.

A dismissal case may be considered unfair if:

  • Your dismissal was harsh, unjust or unreasonable
  • Your dismissal was not a case of genuine redundancy
  • You were employed by a small business and your dismissal was not consistent with the Small Business Fair Dismissal Code

 

UNFAIR DISMISSAL FAQ’s

IS THERE A NEED TO SPEAK TO MY FORMER EMPLOYER?

No, there is no need. At Francom HR, we take care of every aspect related to your case, from communicating with your employer to communicating with Fair Work Commission. We represent you to the maximum and ensure that you only discuss the matter with us.

IF I WAS MADE REDUNDANT, CAN I APPLY?

It is common for employers to dismiss employees on the ground of redundancy. However, this can only legally occur if your position was genuinely made redundant. A person’s dismissal can be considered a case of genuine redundancy if:

  • Your employer no longer required your job to be performed as a result of operational or structural change
  • Your employer consulted with you about the redundancy before you were made redundant
  • Your employer was unable to redeploy you within the business or a related business

The law that governs redundancy and unfair dismissal is a complex one; as such, you will only be able to claim unfair dismissal if your dismissal was not a case of genuine redundancy.

I WAS EMPLOYED ON A CASUAL CONTRACT, CAN I APPLY?

As a casual employee, you are eligible to make an unfair dismissal claim if you held:

  • A history of regular schematic work. For example a casual employee with a designed work pattern of 5 hours per week will be eligible to make an unfair dismissal claim
  • A reasonable expectation of ongoing employment
IF I RESIGNED, CAN I STILL MAKE AN UNFAIR DISMISSAL CLAIM?

When a constructive dismissal occurs, an employee is eligible to make an unfair dismissal claim. A constructive dismissal is when the employee resigns because of the conducts or actions of their employer. Examples of constructive dismissal includes:

  • Treating an individual employee different than others
  • Negatively changing an employee’s employment condition without their consent
  • Failing to respond to an employee’s complaints
  • Giving an employee ultimatum by telling them they must resign or be sacked, thereby forcing them to resign.
HOW MUCH AM I LIKELY TO RECEIVE IF MY UNFAIR DISMISSAL CLAIM IS SUCCESSFUL?

There are two general outcomes for unfair dismissal claims: Reinstatement or Compensation. However, reinstatement rarely occurs. The maximum payable compensation is capped at six months’ pay, which will generally only be awarded in serious cases. If the employee is reinstated, they may still be eligible to receive arrears payment for the period of unemployment from the date of dismissal to the date of reinstatement.

IS MY DISMISSAL UNFAIR?

For a dismissal to be unfair, it must be harsh, unjust or unreasonable; in considering whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission must take into account:

  • Conduct: Whether there was a valid reason for the dismissal related to the person’s capacity or conduct
  • Notification: Whether the person was notified of that reason
  • Response: Whether or not the person was given an opportunity to respond to any reason related to the conduct of the person
  • Refusal to bring someone to the dismissal meeting: Any unreasonable refusal by the employer to allow the person have a support person present to assist at any discussions relating to dismissal
  • Unsatisfactory Performance: Whether the person has been forewarned about that unsatisfactory performance ahead of the dismissal
  • Size of business: The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
  • The degree to which the absence of human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal
  • Any other matters the Commission deems relevant.
WHO IS ELIGIBLE TO MAKE UNFAIR DISMISSAL CLAIMS?

Determining whether you are eligible to make an unfair dismissal claim can be confusing. You must meet the following criteria to make an unfair dismissal claim:

  • You must be an employee covered by the National Workplace Relations System
  • You must be dismissed (your employment is terminated at the initiative of the employer; or your employer has forced you to resign because of their conduct)
  • You must have been employed for the minimum employment period (six months – where the employer employs 15 or more employees; or one year – where the employer employs fewer than 15 employees)
  • Your annual rate of earnings must be less than high income threshold or a modern award or enterprise bargaining agreement must govern your employment (in cases of earning more than $142,000 per year)
  • Your dismissal must have been within the last 21 days (unfair dismissal application must be lodged within 21 days of dismissal for it to come into effect)
IS MY DISMISSAL UNLAWFUL?

It is illegal for an employer to dismiss an employee for certain reasons which includes:

  • Race
  • Color
  • Sex
  • Age
  • Sexual preference
  • Marital status
  • Physical or mental disability
  • Pregnancy
  • Religion
  • Political opinion
  • Family or career’s responsibility
  • Social origin
  • Temporary absence from work due to illness or injury
  • Trade union membership or participation in trade union
  • Filing a complaint