Unfair Dismissal Claims

The employment relationship between an employer and employee can sometimes be fraught with tension, misunderstandings, and disagreements. Unfortunately, in some cases, this can result in an employee being unfairly dismissed from their job. Unfair dismissal can have a significant impact on an employee's financial security, emotional well-being, and future job prospects. In Australia, there are laws in place to protect employees from unfair dismissal, and it is important for employers and employees to understand their rights in this area. An employment lawyer can advise you on your rights. 

Unfair dismissal occurs when an employee is terminated from their job in a harsh, unjust, or unreasonable manner that is not consistent with the provisions of the Fair Work Act 2009 (Cth). Under the Act, an employee who has been employed for at least six months with an employer (or 12 months in the case of a small business employer) whose annual earnings do not exceed the high-income threshold, can make a claim for unfair dismissal. However, certain employees may be excluded from making an unfair dismissal claim, such as casual employees and employees on fixed-term contracts. 

To be successful in an unfair dismissal claim, an employee must demonstrate that their dismissal was harsh, unjust, or unreasonable. The Fair Work Commission will take into account a range of factors, including the reasons for the dismissal, the procedures followed by the employer, and the employee's length of service and work performance.

Examples of Unfair Dismissal

There are many situations in which an employee may be unfairly dismissed from their job. Some common examples include:

• Dismissal without warning or opportunity to improve: If an employee is fired without any prior warning or opportunity to improve their performance, this may be considered unfair dismissal.
• Discrimination: If an employee is dismissed because of their age, race, gender, or other protected attribute, this may be considered discrimination and therefore an unfair dismissal.
• Retaliation: If an employee is fired in retaliation for exercising their workplace rights, such as making a complaint or participating in a workplace investigation, this may be considered unfair dismissal.
• Procedural deficiencies: If an employer does not follow the proper procedures for dismissing an employee, such as providing notice or conducting a fair and reasonable investigation, this may be considered unfair dismissal.

If you believe you have been unfairly dismissed, there are several steps you can take to seek justice. The first step is to attempt to resolve the issue with your employer through negotiation or mediation. If this is not successful, you can make a claim for unfair dismissal with the Fair Work Commission within 21 days of the date of dismissal. If the Fair Work Commission finds in your favour, you may be entitled to remedies such as reinstatement or compensation. However, it is important to seek legal advice before making a claim to ensure that you have the best chance of success.

Unfair dismissal is a serious issue that can have a significant impact on an employee's life. Employees have rights under the Fair Work Act to protect them from unjust or unreasonable dismissal. If you believe you have been unfairly dismissed, it is important to take action as soon as possible to seek justice. By understanding your rights and taking the appropriate steps, you can ensure that your employment rights are protected and that you receive the compensation you deserve.  

Employers can defend an unfair dismissal claim in a number of ways. The most common defences to an unfair dismissal claim are:

• Valid Reason for Dismissal: If an employer can show that there was a valid reason for the dismissal, this can be used as a defence against an unfair dismissal claim. Valid reasons for dismissal may include poor work performance, misconduct, redundancy, or a genuine operational requirement of the business.
• Procedural Fairness: Even if there was a valid reason for the dismissal, an employer may still be liable for unfair dismissal if they did not follow proper procedures. To defend against an unfair dismissal claim, an employer must be able to demonstrate that they provided the employee with appropriate notice, an opportunity to respond to the allegations against them, and a fair and reasonable investigation.
• Small Business Exemption: Small businesses with fewer than 15 employees are exempt from certain unfair dismissal laws, which can be used as a defence against an unfair dismissal claim. However, this exemption only applies if the dismissal was not harsh, unjust or unreasonable.
• Genuine Redundancy: If an employee was dismissed due to redundancy, an employer can defend an unfair dismissal claim by demonstrating that the redundancy was genuine. This means that the job is no longer required by the business due to a change in operational requirements, and that the employer has made a reasonable effort to find alternative employment for the employee within the business.
• Employee Misconduct: If an employee's dismissal was due to their own misconduct, an employer can use this as a defence against an unfair dismissal claim. However, the employer must be able to demonstrate that the misconduct was serious enough to warrant immediate dismissal, and that they followed proper procedures in conducting the investigation and disciplinary process.

It is important to note that these defences are not absolute, and the Fair Work Commission will consider all the circumstances of the case when making a decision. Employers should always seek legal advice before terminating an employee to ensure they are complying with their obligations under the Fair Work Act.

Generally, the unfair dismissal claims process will be as follows:

Step 1: Lodging the Application

The first step in the unfair dismissal claim process is lodging the application with the Fair Work Commission. The employee must lodge their application within 21 days of their termination, unless exceptional circumstances can be demonstrated. The application must include details of the dismissal, the reasons why the employee believes it was unfair, and any remedies they are seeking.

Step 2: Pre-Conciliation

Once the application is lodged, the Fair Work Commission will contact both the employee and the employer to arrange a pre-conciliation conference. The aim of the conference is to try to resolve the dispute before it goes to a formal hearing. The conference is conducted by a conciliator, who will help the parties to discuss the issues and negotiate a resolution.

Step 3: Conciliation

If the parties are unable to resolve the dispute at the pre-conciliation stage, the matter will proceed to a formal conciliation conference. The conference is usually held by telephone and is attended by the employee, the employer, and a conciliator. The aim of the conference is to reach a settlement that is acceptable to both parties.

Step 4: Hearing

If the matter is not resolved at the conciliation stage, the Fair Work Commission will schedule a formal hearing. The hearing is usually held in person, and both the employee and the employer are given the opportunity to present their evidence and arguments. The hearing is presided over by a member of the Fair Work Commission, who will make a decision based on the evidence presented.

Step 5: Decision

After the hearing, the member of the Fair Work Commission will make a decision on the unfair dismissal claim. The decision may include an order for the employee to be reinstated to their former position or compensation for lost earnings. The decision is final and binding on both parties.