What is unfair dismissal?
Unfair dismissal occurs when the termination of employment is considered harsh, unjust or unreasonable, it was not a genuine redundancy or if the dismissal did not comply with the Small Business Fair Dismissal Code, in the case of employees of a small business.
Why are unfair dismissal laws in place?
In life there are few things more traumatic than losing employment. It is among the top ten most stressful events you can face. It can have severe impact financially, emotionally and for securing new employment. Unfair dismissal laws have been put in place to help protect workers and provide an avenue to make a claim for losses, clear their name or be reinstated if they have been unfairly dismissed.
The objectives of the unfair dismissal provisions are:
- to establish a framework for dealing with unfair dismissal that balances the needs of business (including small business) and the needs of employees
- to establish procedures which are quick, flexible and informal, and address the needs of employers and employees
- to provide remedies where a dismissal is found to be unfair with an emphasis on reinstatement.
The procedures and remedies (referred to in the second and third dot points above) and the manner of deciding and working out remedies are intended to ensure that a 'fair go all round' is accorded to the employee and employer concerned.
What is the Small Business Fair Dismissal Code?
The Small Business Fair Dismissal Code is for small business employers with less than 15 employees. Claims for an unfair dismissal cannot be made in the first 12 months of employment, after this period the employer needs to follow the code in order to be fair.
If it is a genuine redundancy due to a downturn in business or the position no longer being needed, employees cannot claim for unfair dismissal.
What is the impact of being unfairly dismissed?
Workers generally rely on their pay packet to service their mortgage and car repayments, feed and school their children, set themselves up for retirement and live their day to day lives.
Workers who live week to week with little or no savings are extremely vulnerable if they lose their job. Many could lose everything and face bankruptcy.
The emotional and psychological toll of losing a job can be overwhelming with relationships breaking down due to stress and uncertainty, and self-esteem pushed to an all-time low.
Being dismissed from work, even in bone fide cases, can also have a negative impact on finding a new job. It is always easier to find work when already employed. Being unfairly dismissed for serious misconduct or below par performance can seriously diminish the possibility of finding meaningful employment.
These are some of the reasons why there are strict regulations regarding unfair dismissal.
What are the steps to making an unfair dismissal claim?
The employee needs to send an unfair dismissal application to either the Fair Work Commission or the Industrial Relations Commission of NSW, which will send a copy of the application to the employer.
The employer needs to submit objections to the claim and send these to the Commission and the employee.
A date will be set for a conciliator to try to help the parties resolve the matter by means of a conference.
If that fails it will go a formal hearing or conference to be decided by a member of the Commission.
Does the length of employment impact an unfair dismissal claim?
For large businesses with 15 of more employees a worker must have been employed for 6 months to make a claim.
For small businesses with less than 15 employees a worker must have been employed for at least 12 months to make a claim.
Is there a time limit for making an unfair dismissal claim?
Yes, you need to make a claim with the Fair Work Commission within 21 days from when you were dismissed. The date of dismissal is generally regarded as the last day you attended your workplace.
The Commission may only allow a further period for lodgement in exceptional circumstances.
Is there a fee for lodging an unfair dismissal form?
Yes, you will need to pay a fee to lodge an unfair dismissal application. You can check the Fair Work Commission website to find out the applicable fee.
What is the maximum payout for unfair dismissal?
The maximum compensation payable is the lesser of either six months’ pay or half of the unfair dismissal high income threshold which is capped at $148,770 (July 1, 2019). As such, the
How do I know if I have been unfairly dismissed?
Determining if you have a claim can be complex. Our lawyers can review the circumstances leading up to your dismissal and determine if it is likely to be deemed unfair.
Can I make a claim for unfair dismissal?
If it is deemed that your dismissal was unfair you can make an application to the Fair Work Commission to be reinstated or compensated for losses. Public servants need to lodge forms with the Industrial Relations Commission of NSW.
What should I do if I have been unfairly dismissed?
You will need to fill out and file an unfair dismissal claim form with the Fair Work Commission. The onus is on you to have the evidence to prove your dismissal was unfair. This is where a lawyer with expertise in unfair dismissal can be of assistance. They can review the information provided and ascertain what made the dismissal unfair. The two main points of contention are whether your employer followed the right procedure or if there was a valid reason to dismiss you from work.
How do I prepare an unfair dismissal claim?
Making an unfair dismissal claim is a legal process so you need to take the process seriously and follow the procedures. You will need to fill out the application (Form F2) which can be found on the Fair Work Commission website. You will need to fill out the form with as much detail as possible, mark questions as ‘not relevant’ if they have no bearing on your case and answer every question to prevent your application from being delayed. If you are unsure about the process, Fourtree Lawyers can prepare and lodge the claim for you.
Where do I lodge an unfair dismissal claim?
If you were working in NSW claims can be made through the Fair Work Commission. Public service employees need to make a claim through the Industrial Relations Commission of NSW.
If I am dismissed for serious misconduct can I make a claim?
Yes. You can still make an application if these allegations can’t be substantiated or if the employee did not follow due process.
Do I need to talk to my former employer?
No, copies of unfair dismissal applications will be sent to your employer by the Commission.
Do I need a lawyer for an unfair dismissal claim?
Legal proceedings can be extremely complex and stressful. An experienced lawyer can help you navigate the process, review your case, provide expert advice concerning the likelihood of winning the case and give you the best chance of positive outcome. They will let you know if you have been unfairly dismissed, if you have a case and should lodge an application, what to say on the application form and what is likely to happen.
If you think you have been unfairly dismissed it is important to get legal advice to determine if you can be compensated for losses incurred; clear your name if the allegations are false and/or be reinstated.
What is the proper procedure for dismissal?
An employee needs to be informed, either in writing or verbally, why they are at risk of losing their job.
The employee needs to be given a chance to respond to the warning and rectify the problem, which may include extra training and a clearer understanding of job expectations.
Can an employer object to an unfair dismissal claim?
The Fair Work Commission can only deal with unfair dismissal applications that fall within its powers, also known as its 'jurisdiction'.
If an employer believes that the Commission does not have jurisdiction to deal with the unfair dismissal application, or the person is not eligible to make the application, then the employer can lodge a jurisdictional objection.
What is a jurisdictional objection?
A jurisdictional objection can be lodged by an employer if the applicant:
- was not an employee (e.g. they were an independent contractor or volunteer)
- was not dismissed or resigned voluntarily
- was made genuinely redundant
- earned over the high income threshold and was not covered by a modern award or employed under the terms of an enterprise agreement
- was employed for a specified period, task, seasonal contract or traineeship arrangement, and was dismissed at the end of the period, task, season or arrangement
- was not a national system employee
- was a casual employee and was not regularly and systematically employed and had no reasonable expectation of continuing employment
- made the application against an entity who is not the employer
- made multiple applications regarding the dismissal
- worked for the employer for less than six months, or less than one year if the employer was a small business employer, or
- lodged their application to the Commission outside the specified time limit and there are not exceptional circumstances permitting an extension of time.
By lodging a jurisdictional objection, the employer is saying that the Commission does not have the power to deal with the claim.
What does termination at the employer’s initiative mean?
A termination is at the employer's initiative when:
- the employer's action 'directly and consequentially' results in the termination of employment, and
- had the employer not taken this action, the employee would have remained employed.
There must be action by the employer that either intends to bring the relationship to an end or has that probable result.
The question of whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration. It is important to examine all of the circumstances including the conduct of the employer and the employee.
What is abandonment of employment?
‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment, without proper excuse or explanation, and as a result shows an unwillingness or inability to substantially perform his or her obligations under the employment contract.
This may be termed a ‘renunciation’ of the employment contract.
The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.
Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.
What are the grounds for instant dismissal?
An employee can be dismissed for alleged serious misconduct without notice. These can include theft, fraud, violence, intoxication and serious breaches of occupational health and safety procedures.
Do I need a lawyer to defend an unfair dismissal claim?
Unfair dismissal proceedings can be costly and time consuming. Our experienced lawyers can help you navigate the process by reviewing the case against you and responding to the complaints made.
If you receive a copy of an unfair dismissal claim from the Fair Work Commission, you need to respond to the allegations. It is a legal proceeding and needs to be dealt with accordingly.
Our lawyers can look at the case in hand, review your processes and advise on the best way to go forward. The onus is on you to provide the evidence to object to and hopefully have the claim dismissed.
We are here to help
Our solicitors specialise in Employment Law and represent clients throughout the Hunter, Newcastle, Sydney and across the Central Coast. We have the experience to guide you through often complex workplace issues from beginning to end to ensure you get you the best possible outcome.
If you have a workplace issue or dispute, contact one of our employment law specialists on 1300 529 444 or submit a contact form to arrange a case assessment with one of our solicitors today.
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