Unfair Dismissal

For Employees.

Were you given a fair go at work before you were dismissed?

If you were dismissed at work you may have a claim to seek compensation or reinstatement of employment at work under unfair dismissal laws.

We regularly represent employees and employers in unfair dismissal cases at the Fair Work Commission.

In most cases the matter is resolved at a mediation conference.

If the matter is not resolved there are opportunities to settle the matter prior to a hearing or alternatively argue the case in a hearing before the Fair Work Commission.

In many cases clients don’t believe they have a claim. Often issues of procedural fairness are raised to show that even if there is a valid excuse for dismissal the outcome was harsh and unfair.

At the end of the day the primary principle is whether or not you were given a fair go all round.

Can I make a claim for unfair dismissal?

In order to make a claim for unfair dismissal under the Fair Work Act you must meet the following Requirements:

• You were an employee;
• If you work for a small business(under 15 employees) you were employed for at least 12 months;
• If you worked for a business that is not a small business you were employed for at least 6 months;
• You earnt
• You were dismissed (including being forced to resign);
• You have made an unfair dismissal application within 21 days of being dismissed.
• Either your salary was under the high income salary level ($142,000) or you are covered by a modern award or enterprise agreement.

Was I unfairly Dismissed?

Section 385 of the Fair Work Act provides that you are unfairly dismissed if:

• You were dismissed;
• The Dismissal was harsh, unjust or unreasonable;
• If employed by a small business employer, the dismissal was inconsistent with the small business code;
• The dismissal was not a case of genuine redundancy.

Section 387 provides relevant matters to be considered by the Fair Work Commission when deciding if the dismissal was unfair:

• whether there was a valid reason for the dismissal related to the employees capacity or conduct (including its effect on the safety and welfare of other employees);
• whether the person was notified of that reason;
• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
• if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
• the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
• 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
• any other matters that the FWC considers relevant.

What is valid reason?

This means that the reason for dismissal must be well founded. In other words it may be possible to prove that for example your performance was not unsatisfactory.

How much compensation can I claim?

The maximum compensation that can be awarded for unfair dismissal is 6 months pay or capped at $71,000.

Call or email us now for an initial consultation.