Is it hard to win unfair dismissal?

Is it hard to win unfair dismissal

Employers often get away with terminating their employees on a whim. They can make a solid excuse with redundancy and get unsuspecting employees kicked out. When you have been unfairly dismissed from your workplace, it simply means that you have been wronged by your employer and deserve either compensation or reinstatement. You can still file for an unfair dismissal claim if you involuntarily resign due to a hostile working environment. In this case, it is called constructive dismissal.

No employee appreciates the pain and aftermath of unfair dismissal. It doesn’t only rob you of your due compensation but also places a taint on your professional image. It is therefore highly imperative that you understand what you are up against when you make an application for unfair dismissal.

Do you understand what constitutes unfair dismissal in the workplace? Were you forced to resign from your workplace due to hostile conditions? Do you want to file for an unfair dismissal case? Keep reading to understand what unfair dismissal truly is and whether you can win a case against your employer.

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Unfair dismissal: the Employee’s Nightmare

According to the Fair Work Commission (Fair Work Act s.394), an unfair dismissal occurs when an employee is dismissed, and:

  • The dismissal was harsh, unjust, or unreasonable. And;
  • The dismissal was not a case of genuine redundancy. And;
  • Where the employee was employed by a small business (with fewer than 15 employees), the dismissal was not consistent with the Small Business Fair Dismissal Code.

What constitutes a ‘harsh’ dismissal?

  • The dismissal is an extreme response to the situation.
  • The dismissal has a very big (‘disproportionate’) impact on the employee’s economic and personal situation.

For example, a dismissal of a hardworking employee over one-time lateness caused by a faulty brake will be judged as harsh. This is because the response is extreme an extreme reaction to the situation.

What constitutes an ‘unjust’ dismissal?

  • The employee is not guilty of the action or behaviour the employer used as the reason to dismiss them.

For example, if an employee who is efficient and hardworking at their job is dismissed for underperformance, such an action is deemed unjust.

What constitutes ‘unreasonable’ dismissal?

  • The evidence does not support the decision to dismiss the employee.

If your employer claims you are incompetent at work. But they cannot produce any tangible evidence to support their so-called claims, then it is an unreasonable dismissal.

You must have been dismissed to bring a claim for unfair dismissal. However, the one exception is when you have experienced a constructive dismissal. This is when you had to involuntarily resign due to the hostile treatment from your employer or co-workers.

When you file for unfair dismissal, your employer is given a chance to respond. If your employer disputes that a dismissal took place, you must prove that it did. That is the core part of your unfair dismissal claim.

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Who is Eligible to Apply for Unfair Dismissal?

The Fair Work Commission prescribes that an employee is eligible to make an application for unfair dismissal remedy if they:

  • Work for a national system employer. Most employers in Australia are national system employers. Therefore, most workers are national system employees. AND;
  • Work for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business). AND;
  • Earn less than the high-income threshold. The high-income threshold is a limit set by the Fair Work Regulations 2009. Employees who earn more than this limit are usually not eligible for protection from unfair dismissal under the Fair Work Act. The exception is if an award or agreement covers them. As of July 2022, the high-income threshold is $162,000. AND;
  • If a casual employee, they worked on a regular and systematic basis before their dismissal. And they have a good reason to believe this would have continued.

The law also protects employees who earn more than the high-income threshold if:

  • An award covers their employment. OR;
  • An enterprise agreement applies to their employment.

What can help you win your unfair dismissal case?

  • Keep evidence: You need to have a vault of relevant evidence that speaks to your stellar performance and disputes your employer’s views about you. If you have been unfairly dismissed due to absenteeism from the workplace, you should have a solid explanation that is covered in the employee handbook.
  • Research and learn: Winning an unfair dismissal case is not a walk in the park. Your long years of professional dedication can be ruined by a termination. Reach out to your social circle and get information on what dealing with unfair dismissal looks like. You can also decide to study more about the topic online to gain a better understanding of what you are up against. Our blog is a great place to start.
  • Document incidents and conversations: It is crucial to document any incidents or conversations related to your dismissal. Keep a detailed record of dates, times, locations and individuals involved in relevant events. This can include instances of unfair treatment or any other actions that led to your dismissal. These records can serve as evidence to support your claims and provide a clear timeline of events. Be sure to keep these documents secure and accessible for future reference.
  • Gather witness testimonies: Consider reaching out to those who witnessed the events leading to your dismissal or can provide relevant information. This could be colleagues, supervisors or other individuals. Witness testimonies can add credibility to your claims and provide firsthand accounts of the circumstances surrounding your dismissal. Ensure that the witnesses are willing to support your case and are prepared to provide statements or testify if required. Their testimonies can strengthen your position and help establish the validity of your claims.
  • Preserve electronic evidence: In today’s digital age, electronic evidence can play a vital role in unfair dismissal cases. Preserve emails, text messages or any other electronic communication that is relevant to your case. Such evidence can provide valuable insight into the circumstances surrounding your dismissal and can corroborate your claims. Take steps to ensure that electronic evidence is properly saved and can be retrieved if needed during Fair Work Commission proceedings.
  • Seek help: An unfair dismissal claim can be tricky. It often requires several requirements that can be confusing to the layman. To ensure you don’t end up worsening your predicament with the wrong moves, reach out to a reliable workplace advisor such as A Whole New Approach (AWNA). Our team can help gauge your eligibility for an unfair dismissal application and guide you through the process of getting compensation.

By doing the above, you can strengthen your position and increase your chances of winning an unfair dismissal case. Remember, every case is unique. So it is essential to seek advice from an expert who can provide you with tailored guidance and strategic insights that can maximise your chance of success.

Is it hard to win a case of unfair dismissal?

The short answer is no. You can win your unfair dismissal case if you have been dismissed unjustly, unreasonably, or harshly. And if you can prove it beyond all reasonable doubt. Winning a case of unfair dismissal depends on the employee’s ability to prove the employer’s unjust and malicious intent to terminate their employment. 

You must ensure you are eligible for an unfair dismissal application and apply using Form F2. This must be done within 21 days of your dismissal, or else you will have your claim rejected. We have lodged thousands of unfair dismissal applications on behalf of employees only, so we know what is needed. We are here to help if needed.

Winning an unfair dismissal case is largely determined by the kind of representation you choose. While you might want to represent yourself, this is an unwise decision. You need to bear in mind that there are legal ropes that will cause you to stumble. The process can also bring up a range of emotions, which could adversely affect your claim. Professional assistance can help you stay level headed and ease your anxiety about what to do.

Also, be careful not to complicate your unfair dismissal claim by sending an appreciation note to your employer after a constructive dismissal. This will make it difficult to prove you were forced to resign. Your employer may take advantage of such an innocuous note to deny you your due compensation.

Reasons to consider lodging an unfair dismissal claim

If you have been unfairly dismissed from your job, it is important to understand why lodging an unfair dismissal claim may be beneficial. Filing a claim can seem complex and overwhelming. But it can also lead to rewarding outcomes. Here are six reasons to consider filing an unfair dismissal claim:

Protect your professional reputation: An unfair dismissal can negatively impact your employment history and future job prospects. That is why clearing your name by challenging your unfair dismissal is crucial. By doing so, you can possibly reach a settlement where your employer allows you to resign rather than be dismissed. A settlement could also see your employer provide you with a reference. If that is not possible, your unfair dismissal claim could be heard by the Fair Work Commission. And if your dismissal is deemed unfair, it can help restore your reputation.

Hold your employer accountable: Pursuing an unfair dismissal claim can make your employer morally responsible for their actions. And it may require them to provide financial compensation. By making your employer pay, they are more likely to recognise that their behaviour has consequences. There’s no better way of sending this message than winning at the Fair Work Commission and forcing them to pay.

Cost-effective resolution: Compared to other options, unfair dismissal claims through the Fair Work Commission offer a relatively cost-friendly process. Many companies and firms provide fee-based advice and representation, with some offering “no win, no fee” options. This accessibility allows more people to pursue justice without incurring a significant financial burden.

Swift resolution: Upon filing an unfair dismissal request, the Fair Work Commission arranges a private conference facilitated by an independent conciliator. These informal conferences aim to resolve disputes without having a formal hearing. Around 78% of unfair dismissal claims are settled during these conferences, which typically occur within three to five weeks of filing. If not settled, formal hearings may take several months, still ensuring a faster process compared to court proceedings.

Terms of settlement: In some cases, an agreement may be reached between the employee and employer before a formal hearing. The terms of this agreement are typically recorded in a document called “Terms of Settlement” or “Deed of Release.” It outlines the understanding between the parties without assigning guilt or responsibility. These documents often include essential clauses that benefit employees. This includes confidentiality and non-disparagement clauses to ensure both parties can move forward.

Advocate for justice and accountability: Lodging an unfair dismissal claim not only seeks justice for yourself but also holds your employer accountable for their treatment of employees. Every person has the right to a fair and impartial investigation before any dismissal decision is made. By challenging unfair dismissals, you contribute to a broader work environment where employers think twice before unfairly dismissing employees.

While we are not legal professionals, we are experienced workplace advisors ready to support you in filing for unfair dismissal. If you have questions about your workplace rights or the process of filing a claim, feel free to reach out to us on 1300 766 700 for confidential and free advice.

Is it hard to win unfair dismissal? - AWNA

Examples of successful unfair dismissal claims

To give you an idea of how the Fair Work Commission rules on unfair dismissal claims, here are a few examples of recent cases. 

Unfairly dismissed for serious misconduct

An unfair dismissal case where the employee contested their dismissal for serious misconduct is Helen Robertson v Imperial Mushrooms Pty Ltd [2021]. The employee worked as a mushroom picker for Imperial Mushrooms. This job required her to use a knife to harvest mushrooms. And she was required to return the knife to a specific place at the end of each shift, so her employer could conduct an inventory check.

During an inventory check in August 2020, it was discovered that the employee had not returned her knife. This caused concern about potential contamination. Imperial Mushrooms had to inspect all the mushrooms she had picked that day, which took approximately three hours. 

A few days later, the employee was stood down from her job. And finally, she was summarily dismissed for serious misconduct. The reasons for her dismissal included causing serious risk to health and safety. Also, risk to the company’s reputation and profitability, and failure to comply with lawful instructions.

Fair Work Commission rules on the unfair dismissal claim

The Fair Work Commission found that there was not a valid reason for dismissal, finding faults with several of Imperial Mushroom’s claims. It concluded that the employee’s misplacement of the knife was not deliberate, but unintentional. And that it did not pose any risk to health and safety. Nor to the viability or profitability of the employer.

The Fair Work Commission also found that Imperial Mushrooms had used a “severely flawed” procedure to determine if the employee should be dismissed. And that the employee’s dismissal was a “grossly disproportionate” measure to take. Her dismissal was therefore ruled to be harsh, unjust and unreasonable.

As a result, the Fair Work Commission awarded the employee the maximum unfair dismissal payout. It considered various factors. This included Imperial company’s viability, Ms. Robertson’s years of service and unblemished record, the lack of alternative employment and income since her dismissal, and the unintentional nature of her misconduct. 

The Fair Work Commission ordered Imperial Mushrooms to pay the employee $19,200. This was equivalent to half of the employee’s annual salary.

Unfairly dismissed for poor performance

An unfair dismissal case where the employee contested their dismissal for poor performance is McCallum v Everstone Pty Ltd [2022]. This case highlighted the importance of an employer providing an adequate warning prior to dismissing an employee for poor performance.

In July 2021, the employee had been dismissed by Everstone for a number of reasons relating to her unsatisfactory performance. The company told the Fair Work Commission that she had a bad attitude and was rude to customers over the phone, having been the subject of many customer complaints. The employee was also dismissed because she could not touch type or multi task. For example, she would choose not to take phone calls while undertaking an order. And lastly, the employee failed to follow her supervisor’s directives.

However, the employee told the Fair Work Commission that Everstone failed to highlight any of these performance issues at the time that she was dismissed. The company had told her that “there was nothing wrong, it is just a business decision.” The employee also took issue with the veracity of the performance issues highlighted by Everstone. She claimed that that on only a single occasion was she told to be more considerate about the way she spoke to clients.

Fair Work Commission rules on the unfair dismissal claim

The Fair Work Commission found that the employee was denied procedural fairness. That is, because Everstone had failed to provide her with an adequate warning about her poor performance prior to her dismissal. The Fair Work Commission highlighted the obligations employers have to uphold when providing warnings. This included that a warning must clearly state:

  • In what ways the employee is performing unsatisfactorily.
  • The help or training that can be afforded to the employee to help them improve.
  • The standards required. And;
  • A reasonable time period for the employee to improve and meet such standards.

The Fair Work Commission found that Everstone had only given the employee a “general reminder” and “subtle hints” instead of a warning. And that the company had not outlined to her how she was performing poorly. Nor that she was at risk of dismissal or how she could improve her performance.

Finding the dismissal harsh and therefore unfair, the Fair Work Commission ordered Everstone to pay the employee $7,484.17 in financial compensation.

Unfairly dismissed for abandonment of employment

An unfair dismissal case where the employee contested their dismissal for abandonment of employment is Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019]. This case involved a Canadian welder/metal fabricator who was sponsored by Zadlea under a Temporary Skills Shortage Visa. In June 2018, the welder got into a verbal and physical fight with a co-worker.

After a disagreement about the construction of a steel framework, the co-worker threatened to have the welder deported. The co-worker than pushed the welder and hurled stones at him. The welder told his manager about the altercation and left the worksite. That is, because he did not feel safe to continue working alongside the co-worker. The welder also went to the local police station to report the altercation. 

The welder told his manager that as a result of the fight, he was experiencing stress and anxiety. This caused him to make an appointment with a doctor who advised him to take two weeks leave from work. The welder provided Zadlea with a medical certificate and made a workers’ compensation claim.

While on sick leave, the welder was informed by the Department of Home Affairs that Zadlea had withdrawn its nomination for his visa application. He contacted his manager in relation to this, but was ignored. The welder subsequently made an unfair dismissal claim with the Fair Work Commission. This was because he had been effectively dismissed, as he could not work without a visa.

Fair Work Commission rules on the unfair dismissal claim

Zadlea told the Fair Work Commission that it had not dismissed the welder. The company claimed that the welder had not made contact since the incident with the co-worker. After he was absent for three days without approval, Zadlea argued that the welder had abandoned his employment. And that was why it had withdrawn its visa nomination. Zadlea claimed that it had not received the welder’s medical certificate until after he contacted them about his visa.

However, the Fair Work Commission found that the welder had not abandoned his employment. It stated that the welder could not have done so without Zadlea attempting to make contact with him. The Fair Work Commission said that had Zadlea made contact, it would have found out that the welder was experiencing anxiety due to the workplace fight. And that he was therefore justified in taking sick leave.

The Fair Work Commission also stated that Zadlea could not deem the welder to have abandoned his employment after just three days. It highlighted that employers are beholden to take certain measures in such cases. For instance, attempting to make contact and conducting a workplace investigation into the altercation.

The Fair Work Commission therefore ruled that there was no valid reason for dismissal. And that the dismissal was harsh, unjust and unreasonable. It ordered Zadlea to pay the welder $7,022.40 in financial compensation. 

Unfairly dismissed for fighting and assault

An unfair dismissal case where the employee contested their dismissal for fighting and assault is Dewson v Boom Logistics [2013]. This case involved a crane operator, Zeb Dewson, who worked for Boom Logistics in the town of Moranbah in Queensland.

The crane operator’s dismissal took place after Boom Logistics had received a formal complaint from an employee. In the complaint, the employee alleged that several Boom Logistics employees had seriously breached occupational health and safety laws. This was due to a range of inappropriate activity, including physical and verbal assaults, drug use and destruction of personal property.

As a result, Boom Logistics hired a consultant to look into the alleged wrongdoing of its workforce. The consultant concluded that there was a toxic work environment at the company’s Moranbah site. And it was uncovered that the crane operator, Mr Dewson, had headbutted a colleague at a work Christmas party.

The consultant advised Boom Logistics to dismiss Mr Dewson, along with several other troublesome employees. Not long after the consultant delivered his report, a Boom Logistics employee made a complaint about Mr Dewson. Namely, that he had assaulted him twice at the Moranbah work site.

Boom Logistics soon made the decision to dismiss Mr Dewson. It was satisfied that his multiple workplace assaults established a pattern of misconduct.

Fair Work Commission rules on the unfair dismissal claim

Despite Boom Logistics’ evidence against Mr Dewson, the Fair Work Commission disagreed that his dismissal was warranted. It said that the headbutting incident was “indefensible.” However, because the company had not subjected Mr Dewson to any disciplinary action, the incident could not be used to dismiss him.

“Misconduct that might ordinarily provide valid reason for the dismissal cannot be resurrected to provide a basis for dismissal,” the Fair Work Commission stated.

The Fair Work Commission also found fault with Boom Logistics’ process for handling the more recent allegation against Mr Dewson. It found that the process was “inept.” This was because the company had not adequately performed a workplace investigation. Also, because it was undertaken with bias and Mr Dewson was not permitted to have a support person present in meetings discussing his dismissal.

Wrapping up

Dismissal of any sort is painful, but an unfair dismissal tops the chart. This is because you have been unjustly wronged by your employer and deserve compensation. As an employee, you have the right to procedural fairness and your employer should discuss probable reasons for firing you beforehand. However, a case of redundancy is a valid reason for dismissal. If you think there is no true redundancy and believe your employer is lying, then you have a case on your hands.

For your unfair dismissal application to be valid, it must be done within 21 days from the day of the dismissal. There is no time to sit and cry, you need to react proactively if you want a chance at justice. Also, it is not a bad idea to seek professional help. The legal world can be murky for a layman. Having a team to guide you through the process is a great way to achieve the result you desire.

If you strongly believe you have been unfairly dismissed or you were forced to resign from your workplace, the onus lies on you to prove that such dismissal is unjust, unreasonable, and harsh. A Whole New Approach can help you assess the eligibility of your case for an unfair dismissal claim and get you due compensation from your employer. 

We are Australia’s leading workplace mediators and commentators. For over two decades, we have helped over 16,000 Australian workers take action through the Fair Work Commission. With our experience, you can exponentially increase the chances that your unfair dismissal claim will be a success. Plus, we offer a no win, no fee service.

Book a free confidential consultation session with us today, and talk to us at 1300 766 700 to discuss your options. We are a team of dedicated professionals, determined to restore your professional integrity. We work in all states, NSW, Qld, Victoria, Tas, SA, WA, and NT.