The Fair Work Act 2009 (Cth) (“Act”) provides eligible employees with protection against unfair dismissal from their employment. This protection comes in the form of remedies which employees may seek (through the Fair Work Commission (“FWC”)) if they feel they have been unfairly dismissed. If you are considering whether or not you have a claim for unfair dismissal, it may be useful to consider the following questions. First, you must consider “Am I eligible to bring an unfair dismissal claim”? Second, you must consider “Was my dismissal unfair”? Finally, you must consider “What remedy do I want”? Below is information which may help you answer these questions and determine whether or not you have an unfair dismissal claim.
- Am I eligible to bring an unfair dismissal claim?
Your eligibility to bring an unfair dismissal claim is determined by:
1.1 Who employs you?
If your employer is a constitutional corporation, that is, it has a company name ending in Pty Ltd or Ltd, you are likely covered by the Act and may be eligible to bring an unfair dismissal claim if you also meet the following requirements.
1.2 How long have you been employed with the employer?
If your employer is a small business employer (employing fewer than 15 people), you must have been employed with that employer for at least one year to be eligible.
If you employer employs over 15 people, you must have been employed with that employer for at least six months to be eligible.
If you have been employed with your employer for the required period of time, you must also meet the following criteria to be eligible to bring an unfair dismissal claim.
1.3 Does a modern award or enterprise agreement cover your employment?
In order to be eligible, your employment must be covered by a modern award or enterprise agreement (subject to the exception below). If you are not sure whether or not your employment was covered by a modern award or enterprise agreement, you can obtain legal advise or you can consult the Fair Work Ombudsmen.
1.4 Did you earn under the high income threshold?
Even if your employment was not covered by a modern award or enterprise agreement, you can be eligible to bring an unfair dismissal claim if you earned under $133,000.00 at the time of your dismissal.
- Was my dismissal unfair?
The Act states that an employee is unfairly dismissed where the employee has in fact been dismissed (which is not always clear) and:
2.1 The dismissal was harsh, unjust or unreasonable
Many unfair dismissal claims are argued on this point as employers and employees often have different opinions about what is harsh, unjust or unreasonable in any set of circumstances. Factors that will determine whether or not a dismissal was harsh, unjust or unreasonable include whether:
- there was a valid reason for the dismissal;
- the employee was informed of that reason;
- the employee was given an opportunity to respond to the reason for dismissal;
- the employee was permitted to have a support person present when discussing the dismissal; and.
- the employee had been previously warned of performance issues and advised of potential consequences.
The above factors are non-exhaustive and the FWC may also take into account any factors it deems relevant in a particular matter.
2.2 The dismissal did not adhere to the Small Business Fair Dismissal Code
The Small Business Dismissal Code (“Code”) states that eligible employers may dismiss employees by following a procedure outlined in the Code. Employees who are dismissed in accordance with the Code will not be able to bring an unfair dismissal claim.
2.3 The dismissal was not a genuine redundancy
If an employee is no longer required, because their job is not required by the employer, the employee may be made redundant. This may not be an unfair dismissal. However, it may be an unfair dismissal if the employer could have reasonably provided the employee with another job within the employer’s operations.
- What remedy do I want?
Generally, there are two remedies that the FWC may provide if you have a successful unfair dismissal claim:
3.1 Reinstatement
Where it is practical to do so, the FWC will order that the employee resume employment with the employer. The FWC may also order that the employer pay the employee an amount for remuneration lost by the employee.
3.2 Compensation
If reinstatement is impractical, the FWC may order an employer to pay an employee compensation. However, the Act places limits on how much compensation can be received.
- Conclusion
The above information serves only as a guide to help you gauge whether or not you may have an unfair dismissal claim. You may require further advice on the substance of your claim and procedures you must follow in the FWC. Please contact us at Lynn and Brown Lawyers to discuss your particular circumstances on 9375 3411.
