Get a lawyer who has helped numerous people to litigate and resolve complex unfair dismissal claims across Australia.

Get a lawyer who has helped numerous people to litigate and resolve complex unfair dismissal claims across Australia.

How this firm can help protect you

How this firm can help protect you

Andrew Anderson, Legal Director, is an award-winning lawyer with a passion for employment law. He is independently recommended as being leading corporate crime, white-collar crime and regulatory investigations lawyers in Australia (Doyle’s Guide, 2020).
Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, Fair Work Commission and multiple other courts dealing with trials and other hearings, Andrew Anderson understands how to succeed in complex and difficult cases.
Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from simple cases right through to complex trials and appeals.
Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Learn more about unfair dismissal claims

1. Specific unfair dismissal claims

For national system employees covered by the Fair Work Commission (FWC), unfair dismissal claims form an important means of seeking redress for being dismissed from work in circumstances that are harsh, unjust or unreasonable. While each case is different, experience shows that people who feel their dismissal from their job often fit into a specific category, although in essence all have a common test whether the dismissal was ‘harsh, unjust or unreasonable’.

Unfair Dismissal: Harsh, Unjust or Unreasonable

Unfair dismissal occurs when an employee is dismissed in circumstances that are concluded to be ‘harsh, unjust or unreasonable’. Unfair dismissal also occurs in cases of non-genuine redundancies.

In order to succeed in an unfair dismissal claim based on the termination being ‘harsh, unjust or unreasonable’, the Fair Work Commission looks at a range of factors, such as whether the reasons for dismissal were valid and whether there was an opportunity to respond or ‘show cause’. Failure by an employer to afford procedural fairness and dismissals that are unwarranted can lead to reinstatement and compensation.

Forced Resignation

When an employee is forced to resign from their job, they are potentially eligible to make an unfair dismissal claim as the termination may be judged to be the decision or initiative of the employer. The may arise when something makes the job ‘impossible’.

In any workplace, decisions or conditions imposed on employees by employers may make it probable that certain employees may not continue in their job. However, if an employer engages in conduct with the intention of seeing certain employees end their employment, it may be possible to pursue an unfair dismissal claim on the basis their resignation was forced and akin to a constructive dismissal.

Not a ‘Genuine Redundancy’

The word ‘redundancy’ has a specific meaning in Australian workplace laws, notably the Fair Work Act 2009 (Cth). In cases where an employer commencing a redundancy process, unfair dismissal claims can arise when if it is not a genuine redunancy.

When an employer ends the employment of one or more employees on the basis their position is redundant, failing to take the appropriate steps to characterise the decision as a redundancy can allow employees to pursue unfair dismissal claims. The steps employers ought to take include consultating with employees, issuing relevant notifications, offering redeployment opportunities if available and paying redudancy entitlements.

Small Business Fair Dismissal Code

If a small business employer follows the Small Business Fair Dismissal Code, then it generally is the case that employees who are dismissed cannot pursue an unfair dimissal claim through the Fair Work Commission.

If a small business employer faces an unfair dismissal claim but can prove it complied with the Fair Work Dismissal Code, then under the Fair Work Act 2009 (Cth) their compliance will mean it cannot be found there was an unfair dismissal. However, non-compliance with the Small Business Fair Dismissal Code opens the door for successful unfair dismissal claims for reinstatement and/or compensation by individuals.

Summary Dismissal (Without Notice)

Summary dismissal occurs when an employer dismisses an employee without notice. Generally, employees are only summarily dismissed if they have engaged in ‘serious misconduct’, such as theft or fraud by an employee.

The reason a summary dismissal may be important is an employer does not have to give notice of the termination, meaning the employer is not liable to pay the employee for any notice period. In cases where an employee is summarily dismissed, they may file an unfair dismissal claim. The employer will then be required to justify its decision and show that procedural fairness was afforded to the person who was summarily dismissed.

Termination on Notice

Employees whose jobs are terminated on notice may pursue unfair dismissal claims. Termination on notice means the employee ought to receive payments under their employment contract, enterprise agreement or award.

Workers covered by the National Employment Standards (NES) are afforded minimum notice periods that apply to the termination of employment. Termination notice periods and conditions may also be separately covered in employment contracts, enterprise agreements or awards. Even if an employee is dismissed on notice, they may still pursue an unfair dismissal claim if their termination was harsh, unjust or unreasonable.

2. Common issues with unfair dismissals

If your job has been terminated and you are considering whether to file an unfair dismissal application, getting informed about the common issues that arise with unfair dismissal claims might be crucial to protecting your interests and avoiding further unfairness.

Below is a list of common issues that people confront when dealing with unfair dismissal claims. While the information about each issue has been created to help people seeking to learn more about these common issues, it cannot – and is not meant to – substitute legal consultation. To get tailored advice about an issue that may be raised in a specific case, contact Anderson Legal.

What is ‘unfair dismissal’?

Under the Fair Work Act 2009 (Cth), ‘unfair dismissal’ can occur in two different ways. One is when the dismissal of an employee is ‘harsh, unjust or unreasonable’. The other is when an employee is subject to a non-genuine redundancy.

Unfair dismissal laws are intended to be straightforward to allow individuals who feel aggrieved by their dismissal to have a simple and clear ability to challenge it. Successful unfair dismissal claims can result in reinstatement, compensation and other ancillary orders such as the restoration of lost pay or ensuring continuity of service. It is possible to resolve unfair dismissal claims prior to them going to a full hearing before the Fair Work Commission.

Unlawful dismissal claim eligibility

In order to be eligible to make an unfair dismissal claim in the Fair Work Commission, it is necessary that the employee meet certain criteria. Failure to meet the criteria can mean there is no ‘jurisdiction’ to hear the claim.

Generally, to be eligible to make an unfair dismissal claim, an employee must (1) satisfy the minimum employment period; (2) be covered by a modern award, enterprise agreement or have an annual income less than the high-income threshold; and, (3) be dismissed by the employer. If an employee meets these criteria, they are likely eligible to file an unfair dismissal claim in the Fair Work Commission. 

Time limits for unfair dismissal cliams

The Fair Work Act 2009 (Cth) specifies that an unfair dismissal application must be filed within 21 days of the day of the employee’s termination of employment, unless extended by leave of the Fair Work Commission.

The requirement that an unfair dismissal claim be filed within 21 days of the day the employee’s employment was terminated is strictly enforced by the Fair Work Commission. Failure to lodge an application within the time limit may mean that the matter cannot be considered on its merits. The 21 day time limit may be extended in exceptional circumstances, however, extensions are not frequently given to applicants.

Unfair dismissal claim process

Once an unfair dismissal application is filed with the Fair Work Commission by an employee, it sets off a process that is mandated by the Fair Work Act 2009 (Cth) and the practice rules of the Fair Work Commission.

After an employee has lodged an unfair dismissal claim, an employer has the opportunity to lodge a response. It may raise jurisdictional objections or defences. Generally, a conciliation conference is then held to try to narrow the issues or resolve the matter (if possible). If there is no resolution at a conciliation conference, the matter may be referred for hearing before the Fair Work Commission At the hearing, the application is determined.

Possible outcomes of unfair dismissal claims

If you have been suspended from work and want to know your rights, it is critical to get informed about what powers employers have to suspend an employee as well as the responsibilities owed to their employees facing such a situation.

Whether an employer may give an employee a direction to not attend work or not perform their job for a period of time will likely depend on a range of factors, such as the conditions set out in their employment contract, enterprise agreement or industrial award. Suspensions from work most frequently occur when a workplace investigation is called for in response to a serious workplace complaint, such as workplace bullying or sexual harassment.

3. Possible Alternatives to Unfair Dismissal Claims

For anybody dismissed from their job, there may be claims or actions to pursue as an alternative to an unfair dismissal application. It is important to understand your options. There can be advantages or disadvantages to particular claims. Getting early advice from an experienced employment lawyer can be crucial to obtaining a just outcome.

Breach of Contract Claims

If your job is terminated in circumstances where it breaches an express or implied term of the employment contract, you may be able to pursue a breach of contract claim. Claims of this kind can result in significant compensation awards.

Breach of contract claims often arise when an employer acts inconsistently with the terms of an employment contract, such that they may be said to have ‘repudiated’ or breached the contract. Examples of when this may occur include changes to core conditions of employment, such as those relating to remuneration, the role performed by an employee or the location of the job. Claims of its kind can carry litigation costs conseqeunces.

Discrimination Claims

If you are subject to discrimination in the workplace, there are a number of possible claims that may be available to litigate, including through human rights and anti-discimination commissions as well as the Fair Work Commission.

Increasingly, instead of seeking to deal with discrimination claims simply through the Fair Work Commission, individuals are seeing the benefits of pursuing claims through human rights and anti-discrimination commissions across Australia. Additionally, people who suffer psychological or psychiatric injuries may also seek to pursue workers’ compensation claims among other types of claims that may be available.

General Protections Claims (Adverse Action)

In Australia, there are certain protections (called general protections) employees have that are designed to prevent an employer from taking adverse action over – such as disciplining or dismissing a worker because they exercise a workplace right.

A general protections claim allows a worker to bring a claim against their employer for taking actions that cause detriment (adverse action) because they exercise a workplace right or for some other protected reason. It is possible for employees to apply for injunctions to stop the decisions or actions taking effect, as well as to pursue compensation and other remedies for the resulting harm or damage caused by the adverse action.

Mutual Agreements and Negotiated Separation

In the context of a dispute about possible dismissal, or following the termination of employment, it may be possible to resolve the matter through mutual agreements and a negotiated settlement. This can avoid lengthy and contested litigation.

Whether initiated by an employer or an employee, mutual separation agreements need to be carefully negotiated. It is crucial to identify the risks and benefits of any litigation versus resolution of a dispute by a mutual agreement and negotiated settlement. Such agreements often contain confidentiality, non-disparagement and waiver of all claims clauses, which can significantly impact the rights and interests of all parties.

Unlawful termination claims

Under the Fair Work Act 2009 (Cth), in addition to the unfair dismissals processes available to employees who are dismissed from their job, it is also possible to pursue unlawful termination claims against employers.

It is unlawful for an employer to terminate an employees employment due to (1) a temporary absence because of illness or injury; (2) trade union membership; (3) filing complaints; (4) discrimination; and, (5) absence for parental leave or activities associated with emergency management. It is important to get advice about whether an unfair dismissal, general protections or unlawful termination claim is best for a specific situation.

If you are considering filing an unfair dismissal application or have a related issue, obtaining early and authoritative advice may be essential to protecting your rights and legal interests. Andrew Anderson has experience in assisting individuals to deal with unfair dismissal claims.

If you need to contact Anderson Legal, you can call the firm on (07) 3505 7070. Alternatively, you can complete our form and we will try to contact you.

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