Unfair Dismissal Lawyer Melbourne
What is Unfair Dismissal?
Unfair dismissal occurs when an employer dismisses, or terminates an employee from their position in such a way that is considered harsh, unreasonable, or unjust and the dismissal was not due in part to redundancy.
While there are many reasons why an employee can be dismissed it is important to ensure you have truly been dismissed unfairly. Losing one’s job poses several complications to an employee’s life from financial to personal and emotional strife. In order to succeed un an unfair dismissal claim is to ensure that you are not using emotion to base your claim of unfair dismissal. Unfair dismissal should not be taken lightly, as it is a legal process. Only members of Australia’s Fair Work Commission have the ability to determine justification for your claim. However, they do not investigate the claims. Their determination is based off the facts and evidence provided by the employee. If your case does go to a hearing, the burden of proof lies upon the employee.
Am I Eligible to Make an Unfair Dismissal Claim?
Eligibility to make an unfair dismissal claim is considered different than if your dismissal qualifies as an unfair dismissal claim. Eligibility is determined by classification of job role, time performing job, and other factors. In order to be eligible to file an unfair dismissal claim you must fall under the guidelines of the Fair Work Act 2009 (Cth) which state:
- Your employment was covered by a modern award, or enterprise agreement.
- If your employment is not covered under either of these, then your salary does not exceed the “High Income Threshold. Although there are other stipulations that apply which you may still be eligible.
- You have at least 6 months of employment with the company, or 12 months with a small business with fewer than 15 employees.
You are not eligible, if:
- You were an apprentice or trainee.
- You were terminated while in a probationary or qualifying period previously determined prior to employment. If your period is greater than 3 months, and you were terminated after 3 months you may still be eligible.
- You were hired under a contract of employment. However, if employed longer than 6 months you may still be eligible. If your contract of employment was determined by task, rather than time you are not eligible.
Types of Unfair Dismissal Claims
Unfair dismissal can occur for a variety of reasons. Knowing how you were dismissed and whether that reason is justified in making an unfair dismissal claim is the first step in the process. Common situations where you may proceed with an unfair dismissal claim are:
- Dismissal due to redundancy when the position was not made redundant.
- Dismissal did not follow company policy, procedures, or state laws.
- Employee was dismissed for performance, although never given notification of performance concerns leading to termination.
- Employee was not provided support from Human Resources or a legal representative during the dismissal.
- No validity in the dismissal
- Employee was not formally notified of termination, or reason of dismissal.
- Employee was not given the opportunity to respond to reasoning of dismissal.
The list above is not all-encompassing, and it is important to note there are a variety of unique situations where an employee can be unfairly dismissed. If you feel you have been unfairly dismissed the Fair Work Commission (FWC) considers several factors to determine if you were unfairly terminated. As there is a short term to claim unfair termination it is best to seek legal advice as soon as possible after termination.
After discussing your concerns over your termination with a lawyer, they may also be able to provide you additional options to your claim than simply unfair termination. These other claims may entitle you to a higher compensation, as several have uncapped compensation. It is important to seek legal advice prior to commencing with or settling an unfair dismissal claim, as moving forward prior to legal counsel can make ineligible any other claims.
- Breach of Contract Claim: Your employer has breached terms of your employment contract. These terms may, or may not be in writing.
- Adverse Action Claim: All employers are required to provide workplace rights. These rights may come as work schedules, sick time, or vacation pay. Your employer cannot dismiss you if you exercise your right to these workplace rights, or seek to exercise these rights.
- Discrimination Claim: Your employer cannot dismiss you due to personal attributes such as: race, skin colour, gender, sexual preference, social origin, age, physical or mental disability, marital status, religion, family responsibilities, pregnancy, or political opinion.
- Unlawful Termination Claim: Different from Unfair termination in that unlawful termination looks at if the termination was contrary to the law, as opposed to being an unreasonable termination. An example of unlawful termination would be if you were terminated for reporting your company is in violation of the law or regulating groups. In this example you, as an employee, are protected under the Whistle-blower Protection Law enabling you to report violations of your company without reprisal for your actions.
How do you know if you have an Unfair Dismissal Case?
The Fair Work Commission evaluates your claim based on a number of factors, however the following will be the primary factors looked at before looking into unique situations:
- Was your termination justified due to your position and conduct in leading up to the termination.
- Were you notified of the reason for termination?
- Were you given sufficient opportunity to respond to the accused reason for termination.
It is important to note that small businesses, those with fewer than 15 regular employees have slightly different laws in order to protect the small business from unfair dismissal claims.
Small businesses have the ability to dismiss an employee without notice or warning if the employee’s conduct was serious enough to warrant immediate dismissal. Conduct such as theft, violence, or egregious disregard to occupational health and safety procedures would qualify under this law.
How to claim unfair dismissal?
Being dismissed from your company for any reason can be fraught with significant emotional response and undue stress. You may harbour harsh feelings toward your previous employer, as well as make impulsive and possibly irrational decisions.
Trying to determine if you have an unfair dismissal claim can be difficult in these situations, and you don’t have a lot of time to decide how you will proceed.
Unfair dismissal claims must be filed within 21 days of termination. The first thing you need to do is contact the Fair Work Commission who can help you in determining if you have a valid claim to file and the process to file. While the process is straight-forward and can be done via internet or by completing the paperwork and submitting, it is highly suggested you seek legal advice. A lawyer can not only help you with the filing process, but help you determine the potential of your claim, as well as other potential claims you can file.
Once your claim has been filed your previous employer will be notified of the proceedings. The Fair Work Commission will mediate with both parties to attempt a fair resolution. If a resolution cannot be reached, the proceedings will move to an open conference, or a hearing.
Most unfair dismissal cases can be resolved through mediation, and without ever going to court. An experienced lawyer can help from get through this stressful time in your life, and potentially help you avoid the added stress of going to court by reviewing your options, and representing you in mediation.