The burden that an unfair dismissal can create for families across the country can be quite devastating. Although employment can end for a variety of different reasons, you should be aware of when you are entitled to approach the Fair Work Commission regarding a wrongful or unfair dismissal. We’ll be taking you through unfair dismissals in Australia, and whether or not you may be able to apply.
The world of employment law and unfair dismissals are difficult to navigate, so it’s always best to consult with experienced employment lawyers in Perth if you would like to discuss your individual situation in detail.
What is an unfair dismissal?
An unfair dismissal can be defined as a termination of employment in an unreasonable, unjust or harsh manner. The Fair Work Commission also may consider it an unfair dismissal if the dismissal was not a genuine redundancy case. If the employee was working for a small business, the dismissal must be done in accordance with the Small Business Fair Dismissal Code, otherwise, it can be seen as an unfair dismissal in Australia.
How does the Fair Work Commission consider the dismissal?
Assessing whether the dismissal was justified can be difficult, and the Fair Work Commission looks at if there was something regarding the employee’s conduct or work capacity that made for a fair reason to dismiss them. They will examine whether or not the employee was made aware of this reason and if they had an opportunity to respond.
Another question they will consider is, did the employer provide the employee with any previous warnings in relation to their performance being unsatisfactory? After considering all other relevant matters, the Fair Work Commission will come to a conclusion on whether that dismissal can be considered as unfair.
Who can apply for an unfair dismissal case?
It is important to note here that not all employees or workers can apply for an unfair dismissal. If you have been terminated by your employer, forced to stand down as a result of the actions of the employer, and have been working for the minimum employment period, you are eligible to apply to the Fair Work Commission for an unfair dismissal.
The minimum employment period is considered as at least 12 months if the person is employed in a small business. Any business that has less than 15 employees who are employed on a regular basis is considered a small business. If you are employed in a larger business, this minimum employment period is at least 6 months.
In order to make an application, the employees must also be covered by a modern award, or covered by an enterprise agreement, or receive an annual income rate which is lower than the high-income threshold.
When do I make the application to the Commission?
If you know that you are eligible to make an application to the Fair Work Commission, you must apply within 21 calendar days from when the dismissal takes effect. It’s best to contact the Commission as soon as possible if you believe that you have been unfairly dismissed.
What are the employer’s obligations?
Once an employment relationship comes to an end, the employer should provide the following in the employee’s final payslip:
- Any accrued annual leave and entitlements to long service leave you have with the business
- Any pay in lieu of the notice of termination
- Any outstanding wages or other forms of remuneration that may still be owing
- Any redundancy pay or other entitlements if the employee was made redundant and is qualified
One of the ways that the Commission can assist is by helping you to gain reinstatement after your unfair dismissal in Australia. If they deem it as not appropriate for your circumstances, they may instead create an order that requires a compensation payment. This payment is currently capped at 26 weeks worth of pay.
If you believe you have been unfairly dismissed from work, you should talk to an employment lawyer who can help to build your case for an unfair dismissal claim. They can help you to understand your legal rights and guide you through the process from start to finish, allowing you to submit your application with confidence.
The contents of this blog are not intended to be sound substitutes for legal advice. You should not rely on this information as legal advice and instead should always speak to an accredited lawyer for professional advice on your situation.