Unfair dismissal claims can be complex because when you are mediating your claim with Fair Work Australia you are not only dealing with your termination, but unpaid wages entitlements, redundancy pay, and also discrimination issues.
When you provide instructions to Connect Legal to lodge your unfair dismissal claim, we review your employment circumstances, not limited to your employment contract, your applicable industrial award , whether unpaid wages are owed (e.g overtime , allowances, motor vehicle expenses), whether annual leave or long service leave is owed and we ensure we resolve your claim competently to safeguard your entitlements.
Recently we have received numerous phone calls from employees lodging their own claims and or dealing with a non lawyer , who unfortunately have signed away their entitlements when signing a deed of release. Please be very careful when signing the deeds of release becasue you may be signing away your award, contractual and industrial rights.
THE FAIR WORK ACT 2009
With the introduction of the Fair Work Act 2009 new laws have been enacted to help employees with their unfair dismissal claims and remember you now only have 14 days to lodge your claims.
CAN I MAKE AN UNFAIR DISMISSAL CLAIM?
You will be eligible to make an Application to Fair Work Australia if your position was terminated and:
- You have been employed for more than 6 months and your former employer employs 15 or more employees, or
- You have been employed for 12 months and your former employer employs less than 15 employees, and
- You are employed under a modern award, or
- An enterprise agreement applies to your employment, or
- You earn less than $118, 100.
WHAT WILL FAIR WORK AUSTRALIA TAKE INTO CONSIDERATION IN DETERMINING WHETHER THE DISMISSAL WAS UNFAIR?
A dismissal is unfair if the decision to terminate your employment was harsh, unjust or unreasonable, if it was not a case of genuine redundancy, or it was inconsistent with the Small Business Fair Dismissal Code.
When considering whether a termination of employment was harsh, unjust or unreasonable Fair Work Australia (FWA) will consider:
1. Whether there was a valid reason for the dismissal related to the person's capacity or
conduct (including) its effect on the safety and welfare of other employees) ;
2. Whether the person was notified of that reason ;
3. Whether the person was given an opportunity to respond to any reason related to the capacity or
conduct of the person ;
4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist
at any discussions relating to dismissal ;
5. If the dismissal related to unsatisfactory performance by the person - whether the person had been
warned about that unsatisfactory performance before the dismissa ;
6. The degree to which the size of the employer's enterprise would be likely to impact on the
procedures followed in effecting the dismissal
7. The degree to which the absence of dedicated human resource management specialists or expertise in the
enterprise would be likely to impact on the procedures followed in effecting the dismissal ;
8. and any other matters that FWA considers relevant.
Before an employer can terminate an employee’s position on the grounds of poor performance they must comply with the following:
· Your employer cannot terminate your employment without giving you prior warning. The warning must be a valid reason which relates to your performance or capacity to do the job.
· You must be given a reasonable opportunity to improve your performance before your position is terminated.
· If your employer does not comply with the above criteria you may have rights to file an application to remedy the unfair dismissal.
WHAT IS THE DEFINITION OF DISMISSAL ?
1. Dismissal generally occurs where an Employer has dismissed an employee for performance
based, behavioural and or redundancy reasons. The significant factor is that the employment was
terminated at the initiative of the Employer.
2. Dismissal can include where an employee has resigned but was forced to do so because of the
conduct and or actions of his or her Employer. Forced resignation is commonly referred to
as "constructive dismissal” and on occasions these may be problematic to prove.
3. Demotion can also infer a dismissal if there has been a significant reduction in remuneration or
duties of the Employee.
HOW CAN I MAKE AN UNFAIR DISMISSAL CLAIM?
Your application must be filed with Fair Work Australia within 14 days of your position being terminated.
Before your claim is accepted by FWA they will assess whether or not your application is valid in accordance with the Fair Work Act, therefore, it is important that your application is drafted correctly and sets out your claim effectively.
If your application is not drafted correctly, it may not progress to the next stage of conciliation.
WHAT REMEDIES ARE AVAILABLE TO ME?
If your matter proceeds to a hearing the outcome can be one of the following:
1. Reinstatement; or
2. Compensation of up to six months wages.
At a hearing the following with be taken into consideration in determining a remedy if your claim is successful:
1. How long you have been employed with your former employer;
2. The circumstances leading up to your termination; and
3. Whether you had received any warnings from your former employer;
WHAT HAPPENS AFTER I LODGE MY CLAIM?
After you lodge your application, Fair Work Australia will investigate the details of your claim. If your application is valid, in accordance with the Fair Work Act, your matter will be listed for conciliation.
WHAT IS CONCILIATION?
Conciliation is an informal meeting between you, your former employer and the FWA conciliator. During the conciliation the conciliator may ask questions of you or your employer to provide assistance in resolving the dispute.
Resolving your dispute might include a payment of compensation or an offer of reinstate you to your previous position.
It is advisable to instruct a lawyer to prepare your application and represent you at conciliation for the following reasons:
1. To advise you of what your options are if an offer is made to resolve your claim;
2. To provide advice as to whether the offer made is reasonable;
3. To discuss the risks of rejecting the offer and proceeding to court; and
4. The likelihood of your claim succeeding in court.
HEARINGS & CONFERENCES
If the unfair dismissal application is not withdrawn or does not settle at or before the conciliation, the employer and the employee will each receive written notification from Fair Work Australia advising if the matter will proceed to a conferences or hearing.
» Contact us to arrange a consultation with one of our experienced Solicitors