When an employee suspects that their employment has been unfairly or unlawfully terminated, the best course of action is to lodge an unfair dismissal claim. Unfair dismissal claims are applications made to the Fair Work Commission to have them examine the circumstances surrounding the termination and to remedy the unfair dismissal. Ultimately, if successful, lodging an unfair dismissal claim can provide employees with compensation for loss caused by the employer and most importantly, relieve stress on individuals and their families.
What is an unfair dismissal
An unfair dismissal is simply when an employee has been unfairly or unlawfully terminated resulting in the employer breaking the Fair Work Act. Examples of unfair dismissals include:
- Where the employer has terminated the employee due to redundancy, but the redundancy is ingenuine,
- The employer terminated the employee through unfair procedures,
- The alleged reason for termination was due to poor performance, however, the issue of poor performance had not previously been raised with the employee,
- Other employees display a similar performance level to the terminated employee,
- No valid reason for dismissal,
- No notice of the dismissal, or
- The employer refused to allow a human resource/ legal rep for the employee during meetings associated with dismissal.
For an employee to submit an unfair dismissal claim, their relationship with the employer must be within the scope of the Fair work Act 2009 (Cth). This means that the employment was:
- Covered by a modern award or enterprise agreement,
- (If the employment was not covered by a modern award or enterprise agreement), the employee’s salary was less than the ‘High Income Threshold’,
- For longer than 6 months and 12 months if the employer employs less than 15 people,
- Not an apprenticeship or traineeship, and
- Not a contract for a specific time or task.
Furthermore, an employee will be illegible if their dismissal occurred during a probationary period.
It is also important to note that an unfair dismissal does not always have to result from the employer terminating the employee. A person who has resigned may also be eligible to submit an unfair dismissal claim. This is known as constructive dismissal and is where the resignation was due to the unfair conduct of the employee. An example of this is where the employer proposes an ultimatum to the employer stipulating the employee must resign otherwise they will be fired.
Deadline and Fees
The Fair Work Commission has a very strict deadline for when a person must submit an application by. An employee can only lodge an unfair dismissal claim within 21 days. Only in very exceptional circumstances will the commission waive this deadline on claims, therefore, it is critical that an employee submits their claim on time. Otherwise, if an employee is hoping to lodge an application after the deadline they will need to seek further legal advice to determine whether they have an exceptional claim.
Additionally, an employee will need to pay an application fee when lodging a claim. If a person is experiencing significant hardship they can apply to have their application fee waived.
Lodging an unfair dismissal claim requires an application form to be lodged to the Fair Work Commission. This form is available on the Commission’s website and requires a detailed explanation of the circumstances surrounding the dismissal. The employee will need include the following details on the form:
- Provide their contact details along with the details of the employer,
- Details of the employment,
- Reasons provided by the employer for the termination,
- Arguments why they think the dismissal was unfair.
A successful unfair dismissal claim can lead to either one of the following remedies:
- Employment reinstated: the employee will be able to get their job back with the employer and might even receive ‘back pay’ for the period of unemployment caused by the termination.
- Compensation: The employee will receive compensation for loss caused by the unfair termination and this is capped at 6 month pay which is only awarded in serious cases.
- The termination can be converted into resignation, allowing the employee to receive a Statement of Service by the employer and leaving the employee’s future employment opportunities untarnished.
However, if an unfair dismissal claim were to be unsuccessful or if this course of action is not suited an employee’s circumstances, there are various other types of claims that they can make. It should be noted that an employee can only settle for one action as they cannot be compensated twice for the same issue. These alternative actions include:
- Breach of contract claims,
- Discrimination claim,
- Unlawful termination, or
- Adverse action.
Unfair dismissal claims are an important step for anyone who has been unlawfully or unfairly terminated by their employer. As each set of circumstances surrounding unfair dismissals are unique, there will not be a blanket application for all claims. It may be worth seeking further legal advice to determine whether there is a viable claim before embarking on the complex process of lodging an unfair dismissal application to the Fair Work Commission.