Unfair dismissal occurs where a dismissal is harsh, unjust or unreasonable and the other requirements of the Fair Work Act 2009 (Cth) are met. Eligibility depends on factors including coverage by the national workplace relations system, the minimum employment period and whether the employee is covered by an award or enterprise agreement or earns below the high-income threshold. Casual employees may qualify where the relevant requirements are met. Our employment lawyers can assess the circumstances and explain whether an application is available.
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, seek advice promptly. An unfair dismissal application generally must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. You can consider discussing a resolution with your employer, but negotiations do not extend the application deadline. Depending on the circumstances, the Commission may order reinstatement or compensation if a claim succeeds.
Employers can defend an unfair dismissal claim in a number of ways. The most common defences to an unfair dismissal claim are:
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.
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 businesses are not automatically exempt from unfair dismissal laws. Employers with fewer than 15 employees may rely on compliance with the Small Business Fair Dismissal Code where it applies. A 12-month minimum employment period also applies to small business employees. Advice can assist with assessing the relevant requirements and the circumstances of the dismissal.
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.
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:
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.
After an application is lodged, the Fair Work Commission provides it to the employer and requests a response. The employer can explain its position and raise any objections about whether the application can proceed. The parties should follow the Commission’s directions and keep copies of the relevant documents.
The Commission may arrange conciliation to help the parties explore a resolution. This is commonly conducted by telephone with a conciliator. The parties can explain their positions and discuss possible settlement terms. If agreement is reached, the terms should be clearly recorded.
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.
After considering the evidence and arguments, the Commission makes a decision on the application and any remedy. The decision explains the findings and any orders made. A lawyer can advise on the outcome and whether any available review or appeal steps should be considered.
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.
We assist clients across Melbourne and surrounding areas with unfair dismissals. Select your suburb below to learn more about our services in your area.
Abbotsford, Aberfeldie, Airport West, Albion, Alphington, Altona, Ascot Vale, Attwood, Avondale Heights, Beveridge, Braybrook, Broadmeadows, Brunswick, Brunswick East, Brunswick South, Brunswick West, Bulla, Bundoora, Campbellfield, Carlton, Carlton North, Caroline Springs, Clifton Hill, Coburg, Coburg North, Collingwood, Coolaroo, Craigieburn, Dallas, Deer Park, Diggers Rest, Donnybrook, Doreen, Eaglemont, East Melbourne, Epping, Essendon, Essendon Fields, Essendon North, Essendon West, Fairfield, Fawkner, Fitzroy, Fitzroy North, Flemington, Footscray, Gladstone Park, Glenroy, Greenvale, Hadfield, Ivanhoe, Ivanhoe East, Jacana, Kalkallo, Kealba, Keilor, Keilor Downs, Keilor East, Keilor Park, Kensington, Kingsbury, Kingsville, Lalor, Laverton, Maidstone, Maribyrnong, Meadow Heights, Melbourne, Mernda, Mickleham, Mill Park, Moonee Ponds, Niddrie, North Melbourne, Northcote, Oak Park, Oaklands Junction, Parkville, Pascoe Vale, Pascoe Vale South, Point Cook, Preston, Reservoir, Richmond, Roxburgh Park, Seddon, Somerton, South Morang, St Albans, Strathmore, Strathmore Heights, Sunbury, Sunshine, Sunshine North, Sunshine West, Sydenham, Tarneit, Thomastown, Thornbury, Tottenham, Travancore, Tullamarine, Wallan, West Footscray, West Melbourne, Wollert, Yarraville, Yuroke.
Copyright © 2020 Pera Lawyers Pty ltd (ACN 646 048 419) as trustee for the Pera Trust trading as Pera Lawyers (ABN 454 994 910 21) - All Rights Reserved.
LIABILITY LIMITED BY A SCHEME APPROVED UNDER PROFESSIONAL STANDARDS LEGISLATION