Do you think you’ve been unfairly dismissed from your job? Are you unsure of your rights and entitlements in Australia?

Unfair dismissal is an unlawful act of employment termination due to it being an unfair action on the employee by the employer. It occurs when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. This could occur when an employer breaches a term of the employee’s contract, or when they fail to follow the correct procedures when terminating an employee. The national fair work system entitles almost all of Australian employees to be protected from unfair dismissal. The decision of whether a dismissal is considered unfair is made by the Fair Work Commission.

When Does it Apply?

In Australia, unfair dismissal applies when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. An employee may make an unfair dismissal remedy application to the Fair Work Commission for a decision as to whether the dismissal was valid or not. The Fair Work Act 2009 (Cth) protects employees from being dismissed from their job unfairly. To be eligible for an unfair dismissal remedy application, the employee must have been employed for at least 6 months with their employer and the dismissal must not have been for a valid reason such as serious misconduct or operational requirements.

How to Make a Claim

Making a claim for unfair dismissal is a process that must be done in accordance with the relevant legislation. In Australia, this is handled by the Fair Work Commission. The first step is to make an application for a Remedy Order. To do this, you must provide details of your dismissal, including your name, contact details, the date of your dismissal, and the reason or reasons given by your employer. You also need to explain why you believe the dismissal was unfair. This can include details of any warnings or reprimands given by your employer prior to dismissal, and any other relevant information. Once your application is submitted, the Fair Work Commission will assess it and decide whether or not to grant you a Remedy Order. If the order is granted, you will then have the right to compensation or reinstatement to your job.

Exceptions to Unfair Dismissal

In some cases, an employee may not be able to make a claim for unfair dismissal because of certain exceptions to the law. These exceptions include:

• If the employee is a casual employee who does not have a regular pattern of hours or ongoing employment

• If the employee is employed in a small business with fewer than 15 employees

• If the employee was dismissed for a valid reason such as misconduct, poor performance or redundancy

• If the employee was employed for less than 6 months (or 12 months in some cases)

• If the employee was employed by a private company and the dismissal related to certain political or industrial activity

• If the employee was dismissed due to taking part in certain types of industrial activities such as taking part in strikes or industrial action.

Who Can Make a Claim?

In Australia, any employee who has been employed for more than six months can make an unfair dismissal claim. This includes full-time, part-time, casual and even fixed-term employees. Independent contractors are ineligible to make a claim.

The Fair Work Act 2009 protects employees from being dismissed in an unfair manner. It outlines the requirements for an employee to be eligible to make a claim for unfair dismissal. This includes that the employee must have been employed for a minimum period of six months (or twelve months if the employer is a small business) as well as meeting other criteria.

Employees who have been dismissed can apply to the Fair Work Commission to review their dismissal and determine whether it was unfair. If it is found to be unfair, the employee may be eligible for compensation or reinstatement.

Eligibility for Compensation

Under Australian law, an employee who has been unfairly dismissed may be eligible for compensation. The amount of compensation that is awarded will depend on the individual circumstances of the case. Compensation may include lost wages and entitlements, such as annual leave and long service leave. It may also include the cost of any medical treatment related to the dismissal, as well as other additional financial losses. In certain circumstances, the Fair Work Commission may also order that the employer pay a penalty or damages, or that they reinstate the employee.

The Fair Work Commission Process

The Fair Work Commission (FWC) is the independent national workplace relations tribunal. It is responsible for dealing with unfair dismissal claims in Australia.

The FWC will assess each claim on its own merits and decide if the dismissal was in fact unfair. If it is determined that the dismissal was unfair, the FWC will then make a determination as to what compensation the employee should receive.

The process of making a claim to the FWC begins with the employee submitting a completed application form. It is important to include all relevant information and evidence in your claim. The FWC will then assess the evidence and decide whether or not the dismissal was indeed unfair.

If a claim is successful, the FWC may order a range of remedies, such as reinstatement, payment of compensation or both. Where reinstatement is ordered, it is important to note that the employer must comply with the FWC’s order and must not take any action that may be detrimental to the employee’s rights.

The FWC will also provide advice on options for resolution and may assist parties in reaching an agreement. If no agreement can be reached, then the FWC may hold a hearing where both parties can present their cases and evidence before a decision is made.

Preparing for the Hearing

When preparing for an unfair dismissal hearing, it is important to consider the following: the facts of the case, the applicable law, and the potential outcomes. The employee should be aware of the process and understand their rights and responsibilities. They should also be ready to provide evidence that supports their case. Additionally, they should be prepared to answer questions posed by the employer or the Fair Work Commission panel. To ensure a successful outcome, employees should have a clear understanding of their rights and a plan for how they will present their case. It is also important to gather any relevant documentation, such as emails, letters, contracts, or other evidence that can be presented to support their case. By taking the time to prepare for an unfair dismissal hearing, employees can give themselves the best chance of achieving a successful outcome.

What Factors are Considered in an Unfair Dismissal Case?

When a Fair Work Commission (FWC) member is assessing an unfair dismissal claim, they consider a range of factors to determine if dismissal was fair or unfair. These factors include the employee’s length of service, the reasons for dismissal, the employer’s procedures for dismissing employees, the kind of job involved, and whether any warnings had been given prior to dismissal.

The FWC must also take into consideration the employer’s size and resources. For example, a small business may not have the same resources as a large organisation, which could mean they may not be able to follow the same procedures when dismissing an employee.

Employers must also ensure that they do not discriminate against any employee. This means that any decisions made regarding their dismissal must be fair and non-discriminatory.

The FWC will also assess any relevant industrial instruments (such as Awards or enterprise agreements) that apply to the employment relationship to determine if the employer has acted in accordance with these instruments.

Lastly, the FWC will consider any other relevant matters that may have contributed to the unfair dismissal. This includes any external factors, such as changes in the industry or economic conditions that may have affected the employer’s decision.

Rights and Responsibilities of Employers and Employees in an Unfair Dismissal Case

When an employee makes an unfair dismissal claim, both the employer and the employee have certain obligations and rights that must be taken into account. Employees have a right to a fair process and employers have a responsibility to provide it. This includes providing the employee with information about the reason for their dismissal, and giving them the opportunity to respond before making a decision. The employer must also show that they have acted reasonably in all the circumstances.

Employees also have a duty to take reasonable steps to mitigate any loss they may suffer due to their dismissal. This means they must make reasonable attempts to find another suitable job. The Fair Work Commission may also consider if an employee has taken appropriate steps to resolve any issues they had with their employer prior to making a claim.

Employers, on the other hand, must ensure they comply with all relevant laws and regulations when dismissing an employee, including those related to procedural fairness, natural justice and the reasons for dismissal. Employers must also provide an employee with information about their rights and the process for making a claim for unfair dismissal. If an employer fails to meet these obligations, the employee may be able to make a successful claim for unfair dismissal.

Examples of Recent Cases Involving Unfair Dismissals in Australia

In Australia, there are several recent examples of cases involving unfair dismissals. In 2018, the Fair Work Commission found in favor of a former employee of the Commonwealth Bank of Australia who was dismissed for making a complaint about a colleague’s behaviour. The Commission found that the dismissal was unfair because the bank had not followed its own internal policies and procedures for investigating complaints.

In another case, an employee who was dismissed for taking extended leave to care for her mother was also found to have been unfairly dismissed. The Fair Work Commission found that the employer had failed to consider the employee’s personal circumstances, and had not given her any opportunity to respond to the allegations against her.

More recently, a casual employee of a large retail store in Western Australia was found to have been unfairly dismissed after he was dismissed without warning for taking too many rest breaks. The Fair Work Commission found that the employer had failed to follow its own policies and procedures in relation to rest breaks and had not adequately explained why the employee had been dismissed.