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:
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:
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.
Common questions from clients that our employment lawyers answer include:
Employees who believe they have been unfairly dismissed must make an application to the Fair Work Commission within 21 days of the termination of their employment. The 21-day period begins on the day after the termination takes effect. If an employee misses the 21-day time limit, they may still be able to make a claim if they can demonstrate exceptional circumstances that prevented them from lodging the application on time. However, the Fair Work Commission will only consider exceptional circumstances if they are satisfied that the employee took action as soon as it was reasonably practicable to do so.
A genuine redundancy occurs when an employer terminates an employee's employment because the job they were employed to do no longer exists. A redundancy is considered genuine if the employer can demonstrate that:
If the employer can demonstrate that a redundancy is genuine, the employee is not entitled to make a claim for unfair dismissal under the Fair Work Act 2009. In the case of small business employers they must be able to show that they complied with the Small Business Fair Dismissal Code.
The Fair Work Commission does not require applicants to have lawyers and they may self-represent. However, the Commission cannot provide you with legal advice on your matter. You may wish to engage a litigation lawyer who is experienced in unfair dismissal to represent you and advise you about your legal rights. Engaging a litigation lawyer early in the process is often preferrable. Your lawyer may be able to assist you in negotiating a resolution to the dispute without resorting to litigation.
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