Unfair Dismissal

Published 24 Jun 2015
Louis Andreatta

If you are a worker whose employment is terminated and you believe your dismissal was harsh, unfair or unreasonable you may entitled to bring a claim against your employer for unfair dismissal. Maclarens Lawyers can advise you as to whether you should bring a claim for unfair dismissal against your employer.

• Your dismissal may be harsh if it was disproportionate response to your work performance or behaviour or in certain circumstances if your dismissal results in acute financial and personal hardship.

• Dismissal may be unjust if the reason for your employment cannot be justified by your employer.

• A dismissal may be unreasonable if you are not afforded natural justice such as a warning or the right of response or if the reason for your dismissal does not justify your dismissal.

If the reason for your dismissal is that your position has become redundant, that is that your employer no longer has a need to have the work you were doing performed, your employment may be validly terminated. However if your employer is a small business it is required to comply with the Small Business Fair Dismissal Code which requires that your employer consult with you and determine whether you may be redeployed.

When should you bring a claim?

A claim must be brought within 21 days of the date of your dismissal. In certain circumstances a Fair Work Commission may permit you to bring a claim after 21 days have expired.

Where do you bring a claim for Unfair Dismissal?

If you are employed in the private sector or by the Commonwealth or a Commonwealth Authority generally, a claim for unfair dismissal will be brought in the Fair Work Commission.

If you are employed by a State Government or a State Government Authority, you may still have a claim but not in the Fair Work Commission.

How to bring a claim for Unfair Dismissal?

The claim forms may be downloaded from the website of the Fair Work Commission. The claim forms can be submitted by post, email or online. Generally, a $65.50 application fee will apply.

The commission will send a copy of your claim to your employer who must respond in writing usually within 7 days of the receipt of your claim.

After that you are invited to attend a Conciliation Conference with a Fair Work Commissioner to see if you can reach agreement and settle your claim.

If you cannot settle your claim, it may proceed to a hearing before the Fair Work Commission.

Some exceptions

You cannot bring a claim for Unfair Dismissal if:

• Your employer did not dismiss you but rather your resigned when you were not forced to do so

• Your employment was for a specific term which has expired

• You are not an employee but rather an independent contractor

• You are in the first 6 months of your employment or 12 months, if you are employed by a small business

Your entitlements on dismissal

Unless your conduct justifies summary dismissal, the law requires that you be given a minimum period of notice of termination or payment in lieu of notice. You may not be entitled to notice of termination if you are guilty of serious misconduct justifying summary dismissal or if you abandon your employment.

• You are entitled to receive outstanding wages

• You are entitled to receive annual leave entitlements which may have accrued

• You may be entitled to pro rata and long service leave

If your position was made redundant, you may be entitled to redundancy pay

Unlawful dismissal

It is against the law for an employer to dismiss a worker for any of the following reasons:

• Race, colour, sex, sexual orientation, age, religious belief, mental or physical disability, marital status, family or carers responsibilities, pregnancy or political opinion

• If you have absent from work because of illness or injury

• Because you are on parental leave to which you are entitled under the law

• If you are absent from work because you are an emergency volunteer worker

• It is unlawful for you to be dismissed if you have commenced proceedings against your employer

How can Maclarens Lawyers help you?

• Maclarens Lawyers can advise you as to whether you should make a claim for unfair dismissal or bring a separate action against your employer if you have been dismissed

• Maclarens Lawyers can advise you as to whether you have received all your entitlements on your dismissal

• Maclarens Lawyers can assist you to bring your claim and represent you at the Fair Work Commission