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Have you been unfairly dismissed?

 

In these uncertain times it is worthwhile knowing the various duties and laws that govern our employment sector in Australia.

One protection some Australian workers have is the statutory unfair dismissal laws applying across every State in Australia in the Fair Work Act (FWA).

The FWA unfair dismissal laws apply to you if: -

  • you work for either a large corporation/company or a small business (employs fewer than 15 people)  
  • you have worked there either full-time or part-time for at least 6 months or
  • if a small business you will need to have worked there at least 12 months either in a full-time or part-time capacity and 
  • you are either be under an award (even if you get paid more than the award) or
  • enterprise agreement (in your industry) or
  • earn under the income threshold (currently at $153,600 as of 1st July 2020). 

In order to claim unfair dismissal under the FWA you must have been: - 

  • dismissed/terminated at your employer’s own initiative or
  • you were forced to resigned because of conduct, or a course of conduct, engaged by your employer towards you or your work and
  • that dismissal/termination was harsh, unjust, or unreasonable or
  • the dismissal/termination was not consistent with the Small Business Fair Dismissal Code* and
  • the dismissal/termination was not a case of genuine redundancy.

 

Note * a person’s dismissal is consistent with the Small Business Fair Dismissal Code if:                  

(a)  immediately before the time of the dismissal/termination or at the time the person was given notice of the dismissal (whichever happened first), and the person’s employer was a small business employer; and                   

(b)  the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

 

What does Harsh, unjust, or unreasonable mean?

Various factors are considered to determine whether you dismissal/termination was harsh, unjust or unreasonable such as: -

  1. whether there was a valid reason for the dismissal related to your capacity or conduct (including its effect on the safety and welfare of other employees); 
  2. whether you were was notified of that reason for the dismissal;
  3. whether you were given an opportunity to respond to any reason related to your capacity or conduct;
  4. any unreasonable refusal by your employer to allow you to have a support person present to assist at any discussions relating to dismissal;  
  5. if the dismissal related to unsatisfactory performance by you—whether you had been warned about that unsatisfactory performance before the dismissal;
  6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; ;
  7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; or
  8. any other matters that the Fair Work Commission will consider as relevant.

 

Are there time limits to claim unfair dismal under the FWA?

Yes, if you think unfair dismissal applies to you the application to the Fair Work Commission MUST be lodged with 21 days after the dismissal took effect. Although in some instances where exceptional circumstances exist an extension can be made.

Remedies can include:

Reinstatement and reappointment to the same position or other terms no less favorable to you or compensation for lost wages (capped at half the high-income threshold (see above figure). However, will not cover shock, distress, or humiliation.

 

Other areas of law that govern unfair dismissal at law and decided in Court can include: -

  • Employment discrimination law
  • Common law wrongful dismissal, where you wage exceeds the threshold, or you do not qualify due to contract terms or terms of employment (see our next post). 
  • Unfair contract law where you signed a contract and you think the terms were unfair.

See other blogs for more details on these avenues, however there are limits you cannot initiate multiple claims regarding the same employer conduct and dismissal claim.

If you or someone you know has been dismissed unfairly, contact Rep-Revive Criminal & Employment Lawyers ® for a free initial consultation.

 

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