employee in a harsh, unjust or unreasonable manner.
Unfair dismissal is a complex area of law, and it is essential that you seek advice and assistance from a suitably qualified lawyer.
Unfair dismissal occurs when an employee is dismissed from their job in manner that is judged to be harsh, unjust or unreasonable. Where this occurs, it is incumbent on the employee to file an application with the Fair Work Commission.
The Fair Work Commission will make a finding of unfair dismissal where the employee:
- Has been dismissed
- The Dismissal was harsh, unjust or unreasonable
- The dismissal was not a case of genuine redundancy and
- No exemptions apply
The Fair Work Commission is likely to judge that a dismissal has been harsh, unjust or unreasonable if:
- A valid reason for dismissal relating to the employee’s capacity or conduct has not been provided
- The employee was not provided with the reason for dismissal and given an opportunity to respond
- The employee was not provided with the opportunity to have a support person present at any discussions concerning the dismissal
- The employee has not received previous warnings about the unsatisfactory nature of their performance
The Fair Work Commission can also take into consideration any other factors they consider relevant.
You can apply to the Fair Work Commission if:
- You have been employed by a Small Business in excess of 12 months
- You have been employed by a Large Business in excess of 6 months
To apply, an employee must also:
- Be covered by an Award or Registered Agreement or
- Earn less than the High Income Threshold ($148,700.00 as at 1 July 2019)
A person whose employment has been terminated must apply to the Fair Work Commission within 21 days of the dismissal taking effect (i.e. the final day of employment). It is possible to seek an extension of time however there is no guarantee the extension will be granted by the Fair Work Commission.
Even if you’re successful at the Fair Work Commission, your legal costs will not be payable by the other side. This is not to say that there is no point seeking legal assistance however it is essential that your lawyer provide you with a realistic assessment of what you can expect to achieve with the application.