Updated: Aug 11
Photo Courtesy: Pouya Hajuebrahimi collected from Unsplash
In the current COVID 19 situation because of the economic downturn, a lot of people are losing their jobs. If you have lost your job because of unfair dismissal, you might have a claim. To find out if you have an unfair dismissal claim against your employer, you need to understand what is unfair dismissal and when you can have the claim for unfair dismissal. It is important to act immediately if you have the claim as you will only have 21 days to claim unfair dismissal before the Fair Work Commission. Following are the 5 important things to know about unfair dismissal:
1. What is unfair dismissal?
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
A person has been dismissed from their employment when:
their employment has been terminated at the initiative of the employer, or
they have resigned from their employment but the resignation was forced by something the employer did.
Section 385 of the Fair Work Act 2009 (Cth) states that a person is unfairly dismissed from his/ her job if:
the dismissal was harsh, unreasonable or unjust;
where the employer states that the termination of employment is due to redundancy, but it was not a genuine redundancy; and/or
in the case of small business employees (i.e. businesses with less than 15 employees), the dismissal was not consistent with the Small Business Fair Dismissal Code.
If you have been unfairly dismissed or sacked by your employer or you were forced to resign from your job because of some action of your employer, you may be able to make an application to the Fair Work Commission for your reinstatement in the job or compensation. This is called an unfair dismissal claim.
The common scenarios where an employee may be unfairly dismissed include
where redundancy is not a genuine redundancy,
where no reason is given to the employee why he or she is dismissed, or
the employee was dismissed for poor performance but never warned that they were performing poorly.
2. What is not unfair dismissal?
It will not be considered as unfair dismissal if you have lost your job in the following circumstances:
if you have been working under a fixed-term contract and that term of that contract expired without the renewal of the contract;
if the termination of your employment is due to your employer making you redundant;
if your job is no longer required to be performed by anyone; and
your employer has complied with any obligations it has under an award or enterprise agreement to consult with you regarding redeployment, or other required matters, before making you redundant.
The Small Business Fair Dismissal Code guides small business owners on when a dismissal is justified; for example, summary dismissal for theft.
A dismissal does not include where a person is demoted in his or her employment without a significant reduction in duties or remuneration and remains employed by the employer.
3. Who can bring unfair dismissal claims?
To bring a claim for unfair dismissal you have to satisfy the following conditions-
You must have completed a continuous period of employment with your employer of at least 6 months (or 12 months if the employer has less than 15 employees).
Your annual earnings (not including superannuation) must be less than the prescribed amount of $133,000, or, if your earnings are over this amount, you must be covered by an award or enterprise agreement.
Casual employees are generally excluded from bringing an unfair dismissal application unless they have systemic hours of employment and an ongoing expectation of work.
Trainees and contractors are also generally excluded from unfair dismissal laws for the same reasons.
4. How can you make an unfair dismissal claim?
You must lodge your applications for unfair dismissal claims with the Fair Work Commission within 21 days of the dismissal. This is a very strict timeframe. The Commission will only allow an application to be heard in rare circumstances if it is not filed under this deadline. You can find the application form for unfair dismissals here.
After you have lodged your application, a representative of the Fair Work Commission will contact you to arrange a conciliation meeting with your former employer, which is held by an independent conciliator from the Commission.
The parties may agree to settle on terms including:
providing an apology,
providing a reference or statement of service,
payment of financial compensation or reemployment.
If conciliation is unsuccessful, a member of the Fair Work Commission will hold a conference or a hearing to resolve a dispute. Conferences are generally private and hearings are held in public. The Commission will let you know which applies to your application by issuing you with a ‘Notice of Listing’. You will require permission to be represented by a lawyer at the conference or hearing if they are not from a union. You can also give evidence to the Commission in the form of witness statements.
5. What are the remedies for unfair dismissal?
If the Fair Work Commission is satisfied that reinstatement is inappropriate, he/she may award compensation to an employee who was unfairly terminated. However, the Commission cannot award compensation for shock, distress or humiliation of the employee.
When determining the amount of compensation that may be awarded, the Fair Work Commission will take into account
the employees’ length of service,
the remuneration the employee would have received, or would have been likely to receive if they had not been terminated,
the efforts of the employee to mitigate the loss suffered because of the termination, such as looking for alternative work,
the amount of remuneration earned by the employee from employment or alternative work during the period between the termination and making the compensation order.
The compensation cap for an unfair dismissal claim is the lesser of the amount of remuneration received by the person, or that they were entitled to receive (whichever is higher) in the 26 weeks before the termination, or half the amount of the high-income threshold immediately before the termination.
We will help you to find the best legal services to solve your employment law problems. Please note that this article is designed to provide you with information. It is not to be considered as legal advice.