Often, being fired from your job can feel humiliating, offensive and unfair. It is a horrible situation to find yourself in, but the good news is that you might be able to do something about it with an unfair dismissal claim.
According to the Fair Work Act 2009, a dismissal is unfair (and therefore unlawful) if it is done in a “harsh, unjust or unreasonable” manner. If you believe you have been fired under such circumstances, you may be eligible to make an unfair dismissal application to the Fair Work Commission.
It is extremely important for both employers and employees to understand their rights and responsibilities under these laws. Read on to learn whether you can make a claim for unfair dismissal and how this application process works.
Am I eligible to make an unfair dismissal claim?
Your eligibility to make an unfair dismissal application is dependent on a number of factors, including:
- Whether you have actually been dismissed
- Whether you are legally considered an ‘employee’ (as opposed to an independent contractor or volunteer)
- Who the employer is
- How many people are employed by your employer
- How long you were employed for
- Your salary
Generally speaking, you are not eligible to make an unfair dismissal application if:
- You are an independent contractor
- You are a volunteer or an intern
- Your employment ended because the period specified in your contract ended
- Have not completed the minimum period of employment, which is six months if the employer employs 15 or more employees or 12 months if the employer has under 15 employees
- Your salary was more than $158,500 per year
Notwithstanding the above, these factors can be more complicated than they appear and exemptions may apply.
For example, if your employer called you an independent contractor but for all intents and purposes treated you as if you were their employee, you may still be eligible to make an unfair dismissal application. Further, if you can show that there were exceptional circumstances that meant you could not lodge your application on time, the Fair Work Commission may grant you an extension.
If you have recently been fired, it is important that you seek urgent legal advice regarding your eligibility so that you can lodge your unfair dismissal claim as soon as possible. Contact Baker Deane & Nutt to speak to one of our expert employment lawyers today.
What constitutes a “harsh, unjust or unreasonable” dismissal?
For a dismissal to be judged as unfair, you will need to prove to the Fair Work Commission that it was either harsh, unjust or unreasonable, or a combination of two or all of these things.
An unfair dismissal application arises in circumstances that are unique and often complex. Accordingly, there is no easy ‘one size fits all’ rule to decide if a dismissal was harsh, unjust or unreasonable, and the Fair Work Commission deals with every matter on a case-by-case basis.
An example of a ‘harsh’ dismissal is when the termination of employment is an excessive, over-the-top or disproportionate reaction to the allegation against you.
A dismissal might be ‘unfair’ if you were not afforded procedural fairness during the investigation process, for example if you were never given the opportunity to give your version of events before the decision was made to terminate your employment, or it was never properly explained to you why you were being fired.
Even if you are given clear reasons for the decision to terminate your employment, the dismissal might still be ‘unreasonable’ if the evidence is insufficient to support the claims or allegations giving rise to your termination.
To find out whether your dismissal was harsh, unjust or unreasonable, it is important that you urgently seek tailored legal advice from a solicitor who is experienced in employment law. Contact Baker Deane & Nutt to speak to one of our experienced employment lawyers about your unfair dismissal claim today.
What is the process of an unfair dismissal application?
After you have lodged your application, your employer will be given the opportunity to lodge their response to your application and provide their reasons why the dismissal was not unfair.
After the response has been received by the Fair Work Commission, the Commission will set a time and date for a conciliation conference, which is usually conducted by telephone. At the conciliation, the Fair Work conciliator will conduct a discussion between you (or your legal representative) and your employer to talk through the issues raised and attempt to reach some kind of settlement or resolution.
If an agreement or settlement cannot be reached during the conciliation, the Commission will set a date for a formal hearing. The hearing will be before a Commission Member, who will act like a judge in court. The Commission Member will hear from witnesses and look at the evidence. After hearing the case, the Commission Member will then make a formal determination whether or not the dismissal was unfair and will issue an order or decision with the outcome.
While the unfair dismissal claim process is designed to be relatively accessible for applicants, it is often complex, daunting and highly emotional for people who have been unfairly fired. It can be very helpful to have an experienced employment lawyer acting on your behalf, and to give you the best chance of a successful outcome. Our expert team at Baker Deane & Nutt have extensive experience acting on behalf of and advocating for unfair dismissal applicants. If you would like one of our team to assist you with your application, please contact us today.
Time limits on unfair dismissal claims
There are strict time limits on unfair dismissal claims. As an employee, you have 21 days from the date of your dismissal to file an application with the Fair Work Commission. If you lodge this application late, the Fair Work Commission will only accept it under exceptional circumstances.
Under Section 394(3) of the Fair Work Act 2009 (Cth), the FWC will consider the following factors when determining whether your situations falls under exceptional circumstances:
- The cause of the delay;
- The grounds for the application;
- If the employee became aware of the dismissal only after it had occurred;
- Any measures taken by the employee to contend the dismissal;
- If the employer would experience prejudice as a result of the claim; and
- Fairness between the employee and other individuals in similar situations.
Typically, once you lodge an application for unfair dismissal and your employer files a response to it, both parties must take part in a Conciliation Conference to attempt to rectify the disagreement surrounding the dismissal.
If you cannot reach a resolution at Conciliation, then a court hearing is required. The Fair Work Commission will review the evidence provided by both parties before deciding whether the dismissal was unfair.
What happens if my unfair dismissal claim is successful?
After the hearing, if the Commission Member decides that the dismissal was unfair, they may order the employer to give you your job back or give you money by way of compensation for your lost wages as a result of your unfair dismissal.
Reinstatement of an employee’s role is a common remedy for unfair dismissal. If it is practical to do so, you will be reinstated into your old job or a similar position with comparable duties, hours and wages. Depending on the circumstances, the employer may also be required to give you back pay from the date of dismissal to the date of the order.
If it is not reasonable for you to be reinstated due to relationship breakdown with your employer, then compensation is an alternative remedy.
When calculating the amount of compensation you are to receive for unfair dismissal, the Fair Work Commission factors the below considerations:
- Any notice of termination payments the employee received upon dismissal;
- Any earnings paid to the employee after the dismissal;
- The duration of the employee’s service with the employer;
- The impact of paying compensation on the feasibility of the employer’s business;
- Any attempts of the employee to alleviate their financial losses; and
- Any additional relevant matters.
Note that this compensation is capped at 26 weeks of the employee’s annual pay. Additionally, the total sum of compensation must not exceed half of the high-income threshold that applies at the date of dismissal. As of July 1 2022, the maximum amount of compensation the Fair Work Commission is permitted to award is $81,000.
If you have been recently fired, we strongly encourage you to contact Baker Deane & Nutt Lawyers today to speak to one of our experienced employment lawyers. Our dedicated team will help you prepare and build a strong unfair dismissal case that will ensure you receive the best possible outcome.
Receive trusted legal support with your unfair dismissal claim
If you feel that you are eligible to make an unfair dismissal claim, then please seek the support of an experienced employment lawyer who can help you navigate the legal complexities and ensure your rights are respected.