Unfair Dismissal Disputes
Unfair Dismissal: Helping Employees and Employers
The end of an employment relationship, whether you are the one losing your job or the one making the difficult decision to terminate, is a significant and often stressful event. Australia’s workplace laws are designed to ensure this process is handled fairly for all parties.
One of the key protections is the ability for an eligible employee to make an “unfair dismissal” claim. Understanding what this means and the process involved is crucial for both employees who feel they have been wronged and employers who need to ensure their actions are legally compliant.
What is an Unfair Dismissal?
An unfair dismissal occurs when an employee is terminated, and the Fair Work Commission finds that the dismissal was “harsh, unjust or unreasonable”.
These terms have specific meanings:
Harsh: The dismissal was disproportionate to the employee’s conduct. For example, terminating an employee with a long and unblemished record for a single, minor mistake.
Unjust: The employee was not guilty of the alleged misconduct they were dismissed for.
Unreasonable: The dismissal was not based on sufficient evidence, or the employer acted unreasonably during the dismissal process (e.g., by not giving the employee a chance to respond to allegations).
To be eligible to make a claim, an employee must generally have been employed for at least six months (or 12 months for a small business) and earn under a set high-income threshold, or be covered by a modern award or enterprise agreement.
The claim process: key steps
If an employee believes they have been unfairly dismissed, a formal process is followed through the Fair Work Commission.
The 21-day time limit: This is the most critical first step. An unfair dismissal application must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. This deadline is extremely strict and rarely extended.
The application: The employee (the Applicant) lodges a formal application, outlining why they believe their dismissal was unfair.
The employer’s response: The employer (the Respondent) is notified of the claim and must provide a formal response, defending their reasons and the process they followed.
Conciliation: This is the most common stage for resolving disputes. Both parties attend a private, informal conference, usually by phone, with an independent conciliator from the Commission. The conciliator’s job is to help the parties try to reach a mutually agreed settlement, which often involves financial compensation.
Conference or hearing: If the matter doesn’t settle at conciliation, it may proceed to a more formal stage, such as a conference or a hearing before a Commission Member, who will make a binding decision. The most common outcomes are reinstatement (which is rare) or capped financial compensation.
How We Can Help
Whether you are an employee seeking justice or an employer defending your actions, navigating the Fair Work Commission requires expert guidance. We provide tailored advice and representation to both sides of an unfair dismissal claim.
For Employees: If you believe you have been unfairly dismissed, we can:
Quickly assess the merits of your claim and advise you on your rights.
Ensure your application is lodged correctly and within the strict 21-day deadline.
Represent you during the conciliation process, negotiating for a fair outcome.
Advise you on any settlement offers and the next steps if your case doesn’t resolve.
For Employers: If you have received or been threatened with an unfair dismissal claim, we can:
Help you prepare a clear and effective formal response to the application.
Advise you on compliance with the Small Business Fair Dismissal Code.
Represent you at conciliation, aiming for a pragmatic and cost-effective resolution.
Defend your position vigorously if the matter proceeds to a formal hearing.
Disclaimer: The content of this article is intended to provide general information only and does not constitute legal advice. You should seek tailored legal advice for your specific circumstances before taking any action.