What is an unfair dismissal?
An unfair dismissal, is a dismissal which is “harsh, unjust and/or unreasonable”. They include terminations by an employer where there is no valid reason or there has been no procedural fairness.
If you believe you have been dismissed in a way which is harsh, unjust or unreasonable, you may be able to make an application for an unfair dismissal remedy to the Fair Work Commission (FWC). It is possible to be reinstated or to receive some compensation for wages and other entitlements. The law on unfair dismissal is complex and it is wise to seek advice about your situation. If you decide to make a claim, don’t delay. Applications must be lodged within 21 days of the dismissal. There is a filing fee, but you can apply to have this fee waived.
Who can apply for an unfair dismissal remedy?
Not every employee can make a claim for unfair dismissal. You are excluded from making a claim if any of the following applies to you:
- you have been working for your employer for less than 6 months; or if your employer is a Small Business Employer*, less than 12 months;
- you are a casual employee (except where you have worked on a regular and systematic basis, with an expectation of ongoing work, for the required amount of time as described above);
- you earn over $142,000 per year and are not covered by an award or agreement. This amount is indexed each year;
- you are employed under a fixed term contract of employment or a training arrangement for a specified period of time or for a specified task and the contract, task or training period has ended;
- you are an independent contractor; or
- your dismissal was a genuine redundancy, as defined in the Fair Work Act.
If you are not eligible to make such application, you may be able to lodge under the General Protection provisions.
*A Small Business Employer is defined as having less than 15 employees.
Constructive dismissal means that even though your employer did not say you were sacked, the employer’s behaviour forced you to leave your employment. Or in other words, the employment relationship ended at the initiative of the employer and not because you voluntarily resigned. This is a very complex area and so it is really important to seek advice before you resign. This is particularly so if you are considering making a claim for unfair dismissal remedy. It is the same process to lodge a claim for constructive dismissal as it is for unfair dismissal.
If you are dismissed for serious misconduct you are not entitled to any notice, or pay in lieu of notice, however you are entitled to be paid any accrued but not taken annual leave. The Fair Work Act 2009 defines “serious misconduct’ as including theft, fraud, committing an assault, being intoxicated at work, behaving in a way that caused serious and imminent risk to the health and safety of a person or to the reputation or viability of the business, or refusing to carry out a lawful and reasonable instruction. If you feel that your instant dismissal was harsh, unjust or unreasonable you may have cause to lodge an unfair dismissal.
Period of Notice
If you are to be dismissed (other than for serious misconduct) your employer must give you a period of notice, or pay you in lieu of notice, as required by your award or agreement or as part of the National Employment Standards, as set in the Fair Work Act 2009. The period of notice will vary depending on your length of service and your age.
If you lodge an application for unfair dismissal remedy, your matter will generally, in the first instance, be conciliated with the assistance of a Fair Work Commission Conciliator. The Working Women’s Centre may be able to offer representation, support and advocacy in dealing with your claim.