Can They Do That? – Unfair Dismissal in Australia
Unfair Dismissal – Now What?!
So, you think you are about to be fired or have just been handed a pink slip. You’re probably thinking, now what? If you believe your untimely firing was harsh, unjust or unreasonable you may have been unfairly dismissed.
Losing your job can be a really difficult and very stressful experience, especially if you loved your job or are in a tight spot financially. If you think you have been fired unfairly or for the wrong reason, you may have rights under unlawful termination laws or unfair dismissal laws.
If you believe you have been unfairly dismissed you need to act fast. This is because all claims of unfair dismissal must be filed with the Fair Work Commission within 21 days of the termination of your employment.
Information regarding how to make an application and costs are located on the Fair Work Commission website.
Once the Fair Work Commission has reviewed your application it will decide whether or not you were unfairly dismissed. If they come to the conclusion your employment was unfair they may order the employer to:
- reinstate you to the same or an equivalent position
- reinstate you and move you to a different part of the organisation
- pay for lost wages between the date of termination and reinstatement
- compensate you instead of getting your job back – this may happen if another employee has been hired or where it is otherwise inappropriate.
When are you protected from unfair dismissal?
An employee of a national system employer (called a national system employee) who has been dismissed is protected from unfair dismissal and eligible to make an application for unfair dismissal remedy if:
- they have completed the minimum period of employment
- they earn less than the high income threshold (which is currently $148,700 per year), or
- a modern award covers their employment, or
- an enterprise agreement applies to their employment.
It is not an unfair dismissal if the dismissal was:
- a genuine redundancy, or
- consistent with the Small Business Fair Dismissal Code (in the case of employees of small business).
A redundancy is not genuine if:
- the operational requirements of the business haven’t changed and the employer still needs your job to be done by someone, or
- the employer hasn’t followed the requirements under the applicable Award or workplace agreement about consulting with the employees, and/or their representatives, about the redundancy, or;
- it would have been reasonable for you to be redeployed within your employer’s business or a business of an associated entity of your employer.
What do I do now?
You have 21 days from the termination of your employment to apply to the Fair Work Commission to make a claim for general protections dispute.
To apply visit the Fair Work Commissions Website.
The Fair Work Commission will set up a conference with your employer to try to resolve the dispute. If the dismissal is not resolved the Fair Work Commission must issue a certificate.
You can then make an application to a court to deal with the matter. This must occur within 14 days of the certificate being issued.
For further help with an employment matter, please contact us at Sharon Givoni Consulting.