The Canberra Times

What are your options when you've been unfairly dismissed from your workplace?

What are your options when you've been unfairly dismissed from your workplace?

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Losing a job can be an incredibly stressful and upsetting experience, especially in today's economic climate. This unpleasant experience is further heightened when an employee feels like they have been unfairly dismissed.

There are many instances in which an employee may feel like their termination has occurred on unjust, harsh or downright unlawful terms. Thankfully, employees who have been dismissed without a valid reason may be protected by the provisions of the Fair Work Act 2009.

If you are unsure about the next steps to take in your unfair dismissal case, you've come to the right place. In today's article, we explore your options when you have been unfairly dismissed from your workplace.

What is unfair dismissal?

The first and most important thing to do if you feel like you have been terminated on unfair grounds is to fully understand the legal definition of unfair dismissal. According to the Fair Work Commission, "unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner".

Under the Fair Work Act 2009 (Cth), you may be eligible to make an unfair dismissal claim if:

You were an employee for a minimum of 6 months or 12 months if you were hired by a small business business of less than 15 employees;

You have recently been dismissed and the dismissal was harsh, unjust or unreasonable; or

You were informed that your dismissal was a redundancy even when that was not the case.

Factors constituting unfair dismissal

When considering whether a dismissal was unfair, the Fair Work Commission takes all of the following factors into account:

- Whether there was a valid reason for the dismissal related to an employee's conduct or capacity;

- If the employee was notified of the reason/s for dismissal;

- If the employee was given the opportunity to respond to that reason;

- If the dismissal was related to unsatisfactory performance after being given prior fair warning;

- Any unreasonable refusal by the employer in allowing the presence of a supporting party for discussions relating to the dismissal;

- The degree to which the size of the organisation would be likely to impact on the procedures followed in making the dismissal; and

- The degree to which the absence of dedicated HR specialists in the organisation would be likely to impact on the procedures followed in the dismissal.

Steps to take if you have been unfairly dismissed

If you have concluded that you have indeed been unfairly dismissed, the Fair Work Commission hears and decides on cases of unfair dismissal. To lodge an application for unfair dismissal, simply follow these steps:

- Apply to the Fair Work Commission within 21 days of your dismissal taking effect. The 21 day period starts the day after the dismissal.

- Pay the fee for your application. The fee for 2022-23 is $77.80 and changes on July 1 each year..

What happens next?

Once the Fair Work Commission has received your application, they will send a copy to your employer and organise a conciliation to help you and your employer discuss the issues at hand. A conciliation is the first step in the unfair dismissal process. Do note that because this process is voluntary, you can choose whether or not you wish to attend the conciliation and the same applies to your employer.

Even if you choose to not take part in the conciliation, your application doesn't stop. Instead, your case moves to a formal hearing, and you may lose the chance for a conciliation at a later stage.

What is the outcome of my unfair dismissal claim?

Depending on the nature of your individual case, the Fair Work Commission may choose to:

- Order your reinstatement; or

- Order of payment of compensation from your employer.

Reinstatement: Do note that reinstatement must be the primary consideration by the Fair Work Commission first and if it is ordered, you must be reinstated to the same position or another position on terms no less favourable to your previous position.

Compensation: If orders of compensation are made, compensation is designed to compensate you in lieu of reinstatement and for loss of income attributed to the unfair dismissal. The amount you will be compensated is determined by:

- Length of your employment;

- Wages lost as a direct result of your dismissal; and

- The effect of an order on the viability of your employer's business.

What if I was employed for less than 6 or 12 months?

If you were employed for less than 6 or 12 months depending on the type of business, you may be eligible for a general protections claim which prohibits employers taking adverse action against a worker (including dismissal) due to:

- Race, religion, skin colour, sex, sexual orientation, age, religious beliefs, political opinion, mental disability, pregnancy, marital status, family/carer's responsibilities or national/social origin.

- Time away due to illness or injury;

- Time away due to parental leave, paid or unpaid;

- Time away due to emergency volunteer work; or

- Complaints being filed against an employer or member of the organisation.

Do note that a general protection claim is not the same as an unfair dismissal claim, but rest assured that there are solutions and legal recourse that you can take if you are dismissed due to one or more of the above factors (even if you have been employed for less than 6 or 12 months).


In a nutshell

Being terminated on unfair grounds is never a pleasant experience. If you feel like you have been unfairly dismissed from your workplace, it is important to work quickly and to lodge your unfair dismissal claim with the Fair Work Commission as soon as possible.

Disclaimer: This article is not intended to be a substitute for legal advice and we always recommend seeking professional legal advice if you have been unfairly dismissed.