Unlawful terminations claims are very complex because ultimately they are determined by the Federal Magistrates Court (FMC) and in accordance with black letter law. Unlawful Dismissals claims are actually commenced at Fair Work Australia , but if they are unresolved you are require to file a formal application at the FMC. Very few lawyers have actual experience in this jurisdiction and this is where Connect Legal and Mr. Boghossian can greatly assist.
CAN I MAKE AN UNLAWFUL TERMINATION CLAIM?
A Dismissal is Unlawful if an employer terminates and discriminates you on the following grounds
1. Race, Ethnicity, Religion
2. Family or carer commitments, for example discrimination on the basis of your responsibilities in looking after young children, elderly or a disabled people.
3. Age, this encompasses being treated differently because you are deemed too old, too young or middle aged. An example of this is where your employer forces you to retire which is against the law.
4. Sex, being treated unfairly or not being provided with equal opportunities on the basis of being a woman, a man or transgendered. For women, this also includes discrimination on the basis of pregnancy or breast feeding.
5. Sexuality, this includes discrimination on the basis of your sexual preference for example being gay or lesbian.
6. Disability or mental impairment, being treated unfairly due to any physical or mental impairment or disease.
Alternatively, you may bring an unlawful termination claim if your employment was terminated for one of the following reasons:
- temporary absence from work because of illness or injury of a kind prescribed by the regulations;
- trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
- non-membership of a trade union;
- seeking office as, or acting or having acted in the capacity of, a representative of employees;
- the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
HOW CAN I MAKE A CLAIM?
Your application must be filed with Fair Work Australia within 60 days of your position being terminated.
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.
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. The risks of rejecting the offer and proceeding to court; and
4. The likelihood of your claim succeeding in court.
HEARINGS & CONFERENCES
If you unlawful dismissal claim remains unresolved you are then required to file a formal application at the Federal Magistrates Court (FMC). The FMC will conduct a formal hearing, where witness statements are exchanged, cross examination occurs and a judicial decision is provided. This process if very technical and complex and Connect Legal can help you throughout the whole process.