Unfair Dismissal Claims - get help from the experts
Not all dismissals are unfair. Sometimes, a dismissal may be for a valid reason. A dismissal that is harsh, unjust or unreasonable will constitute unfair dismissal. If you are pursuing an unfair dismissal claim, Lawpoint’s employment law lawyers can help.
An employer may be required to pay compensation to an employee who has been unfairly dismissed from their job. The amount of compensation payable varies and depends on the amount of lost income suffered by an employee.
In determining whether a dismissal was unfair, s387 of the Fair Work Act 2009 dictates that the Fair Work Commission must consider the following:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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; and
(h) any other matters that the FWC considers relevant.
The following are examples of an unfair dismissal:
(a) a dismissal which is harsh because it is a disproportionate or extreme response to the situation;
(b) a dismissal which is unfair because an employee is dismissed for alleged misconduct which the employee did not engage in;
(c) a dismissal is unreasonable because the objective evidence does not support findings made on which the decision is made to dismiss the employee.
How to Claim Unfair Dismissal Compensation
If you believe that you have been unfairly dismissed, you can make an unfair dismissal claim in the Fair Work Commission (FWC). You must file your claim within 21 days of the date of your dismissal.
Eligibility criteria apply. This includes that the employee must be employed by a private enterprise employer (public sector employees are excluded from eligibility), must have been dismissed and must earn less than the income cap.
Most unfair dismissal cases follow the same procedure:
(a) the claim is lodged;
(b) the employer has an opportunity to lodge a response and make any jurisdictional objections to the claim;
(c) the FWC holds a conciliation conference in an attempt to settle the matter;
(d) if the conciliation conference is unsuccessful, the matter proceeds to a hearing and a decision is made by the FWC.
75% of all unfair dismissal cases settle at conciliation conference. For those that don’t and proceed to hearing, you will have the opportunity to present your evidence and witnesses. The employer will also have the opportunity to present their evidence and witnesses. The FWC will then decide on whether the dismissal was unfair.
If the FWC finds that the dismissal was unfair, they may order the employer to pay unfair dismissal compensation to the employee. The FWC also has the power to order that an employee is reinstated to their position. The amount of compensation will be determined by the FWC.
What to do if you have been Unfairly Dismissed
If you have been unfairly dismissed, there are a few things you should do:
- Keep a record of all relevant documents, such as your employment contract, performance reviews, and any correspondence with your employer.
- Contact a lawyer to discuss your legal options.
- File an unfair dismissal claim with the FWC strictly within the 21 day time limit.
What is the Difference Between Dismissal and Constructive Dismissal?
Actual dismissal and constructive dismissal are two different types of dismissal that can result in an employee being entitled to compensation. However, there are some key differences between the two.
Dismissal occurs when an employee is dismissed at the instigation of an employer. There is usually no doubt that the employee has been dismissed. Constructive dismissal occurs when an employee is forced to resign because of the employer’s conduct. Essentially, the employer’s actions force the employee to resign, even though they weren’t directly fired. This resignation is then treated as a dismissal initiated by the employer.
In order to prove constructive dismissal, the employee must show that the employer’s conduct was so unreasonable that it made it impossible for the employee to continue working. This can be difficult to prove, but it is important to remember that the employee does not have to prove that they were actually directed to resign. They only need to show that the employer’s conduct made working so intolerable or unreasonable, that resignation was the only reasonable option for the employee.
If you have been unfairly dismissed, you may be entitled to unfair dismissal compensation. It is important to speak to a lawyer to discuss your legal options.
Talk to Lawpoint today to learn how our employment lawyers can help you file an unfair dismissal claim with the FWC and represent you at the hearing.
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