Introduction to Unfair Dismissal Claims
Understanding dismissal rights
An employee has been dismissed from their employment when:
- Their employment has been terminated by the employer.
- They have resigned their employment but the resignation was forced by something the employer did.
Unfair dismissal occurs when an employee is dismissed from their job in a harsh, unjust, or unreasonable manner. In Australia, the Fair Work Act 2009 provides a framework to protect employees against such practices. You could be protected under the unfair dismissal or general protections dismissal laws.
It’s crucial to understand that you have rights, and these situations are not beyond your control. Knowing your rights is the first step in addressing unfair dismissal.
Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.
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What is an unfair dismissal?
If you have been terminated from your place of employment and believe your employer has unfairly dismissed you, or you were forced to resign because of something your employer did, you may be able to lodge an application to the Fair Work Commission for compensation. This is called an unfair dismissal claim.
If you have been terminated from your place of employment and believe your employer has unfairly dismissed you, or you were forced to resign because of something your employer did, you may be able to lodge an application to the Fair Work Commission for compensation. This is called an unfair dismissal claim.
Your termination may be considered an unfair dismissal if:
- Your dismissal is deemed to be harsh, unjust or unreasonable.
- Your dismissal was not a case of genuine redundancy.
- You were employed by a small business, but your dismissal was not consistent with the Small Business Fair Dismissal Code.
Who can apply?
The Fair Work Commission is limited by law in the unfair dismissal claims that it can deal with – this is called its ‘jurisdiction’.
To lodge an application for unfair dismissal you need to:
- Lodge an application within 21 days of dismissal becoming effective.
- Be covered by the national workplace relations system.
- Have already been dismissed by your employer.
- Meet eligibility criteria, including the minimum employment period.
To find out if you are eligible to apply, contact AWNA on 1300 766 700 for a free personal evaluation.
How AWNA Champions Your Cause
At AWNA, we are dedicated to empowering individuals who have been unjustly dismissed from their workplaces. Our commitment is to provide support, guidance, and expert advice to those who may feel overwhelmed and uncertain about their next steps. We specialise in navigating the complexities of Fair Work cases in Australia and advocate for fairness and justice in the workplace.
Our Services in Addressing Unfair Dismissal
- Expert Advice: Our team offers expert advice to help you understand your rights under Australian employment law.
- Representation and Support: We provide representation in negotiations and, if necessary, at Fair Work Commission hearings.
- Mediation and Resolution: We facilitate mediation between you and your employer to seek an amicable and fair resolution.
Understanding the Unfair Dismissal Claim Process
- Eligibility Check: We help you determine if you are eligible to make an unfair dismissal claim.
- Lodging the Claim: We take on the process of lodging a claim with the Fair Work Commission.
- Mediation and Conciliation: We assist in mediation or conciliation sessions to resolve the dispute.
- Hearing and Representation: If required, we represent you at a Fair Work Commission hearing.
- Resolution and Advice: Post-resolution, we offer advice on the next steps and future employment considerations.
Why Choose AWNA for Unfair Dismissal Cases?
- Specialised Knowledge: Our team’s in-depth understanding of Australian Fair Work cases ensures effective handling of your case.
- Proven Track Record: We have a history of successfully assisting individuals in unfair dismissal cases.
- Personalised Support: We offer a personalised approach, ensuring that your specific situation is handled with care and attention.
With AWNA, you're not alone in this journey.
Let us help you turn this challenge into an opportunity for justice and fair treatment.
Frequently Asked Questions
What is considered unfair dismissal
A person is unfairly dismissed if the person can satisfy that the he or she has been dismissed and the dismissal was harsh, unjust or unreasonable. A person is dismissed when the employer showed initiative to terminate the employment relationship, the person is forced to resign, or the person is made redundant, but the redundancy is not genuine. The dismissal can be either harsh, unjust or unfair depending on the circumstances. For example, a person may be unfairly dismissed if the person is terminated effectively for poor performance with no prior warnings after numerous years of continuous service. The criteria for considering harshness can be found in section 387 of the Fair Works Act 2009. If the employer has less than 15 employees, the Small Business Dismissal Code applies.
Is it hard to win unfair dismissal
Between 2018 to 2019, 78% of unfair dismissal matters were resolved at conciliation by mutual agreement. A large majority of the applications were finalised without a formal hearing, with only a small amount (5%) of mattes finalised by a decision issued by a Member of the Fair Work Commission. And of the cases that went ahead to formal hearing, only 1% of the cases in which dismissal were held to be harsh, unjust or unreasonable by a Member of the Commission.
What is the salary cap for unfair dismissal
The high-income threshold for unfair dismissal currently sits at $158,500 as at 1 July 2021. If you earn more than the high-income threshold, you may not be eligible to lodge an unfair dismissal application. However, a person may still make an unfair dismissal application if his or her employment is covered by a modern award, even if the annual earning exceeds the high-income threshold.