Employment Law

Unfair Dismissal

Dismissal refers to when an employee’s position with a business or company has been terminated by the initiative of the employer.

Mendis & Gibson Lawyers

Unfair Dismissal Lawyers Essendon and Melbourne CBD

Dismissal refers to when an employee’s position with a business or company has been terminated by the initiative of the employer. In some cases, dismissal may be determined as unjust, unreasonable, or harsh. It may be determined by the Fair Work Commission whether a dismissal does satisfy the conditions of an ‘unfair dismissal’, and in these cases compensation and/or reinstatement may be available to the employee.

Mendis & Gibson Lawyers

Have I been unfairly dismissed?

In order for an unfair dismissal application to be successful, the Commission must determine that your dismissal was unjust, unreasonable, or harsh. If you believe your employer has dismissed you for unfair reasons, then you may be eligible to make an application. If you believe this is the case, or you are unsure, then promptly seek legal advice.

Mendis & Gibson Lawyers

What is the application process?

Firstly, there are some requirements to be satisfied to be deemed eligible to make an unfair dismissal application, and exclusions do apply. This means that not everyone has an automatic right to make an unfair dismissal application to the Fair Work Commission.

The following employees are eligible to make an application:

Employees must have been employed with a business or company for at least 6 months
For small business of less than 15 people, employees must have been employed for at least 12 months
An employee’s dismissal must not be a case of genuine redundancy
Employees who were forced into resigning their position by their employer
Employees whose annual earnings are less than the high-income threshold ($153,600 as at 1 July 2020)
Employees who are covered by an award or enterprise agreement

An application to the Fair Work Commission must be made within 21 days of dismissal, and evidence will need to be produced to the Fair Work Commission to prove that dismissal was unfair. If an application is made outside the 21-day time frame, the Commission must be satisfied that there were exceptional circumstances that resulted in the delay.

Each case is to be assessed by the Fair Work Commission on its own facts, and the Commissioner must take into consideration certain factors in determining whether a dismissal may be classified as unjust, harsh, or unreasonable.

Mendis & Gibson Lawyers

Can I make an application if I am a casual employee?

Casual employees are often subjected to different terms and conditions of employment compared to full-time or part-time employees.

Casual employees may only apply for unfair dismissal if their employment has been regular and systematic, and if there is a reasonable expectation of ongoing employment.

Mendis & Gibson Lawyers

What factors does the Fair Work Commission take into consideration when making a decision?

As under section 387 of the Fair Work Act, the Fair Work Commission must consider the following:

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)
Whether the person was notified of that reason
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
If the dismissal related to unsatisfactory performance by the person—regardless of whether the person had been warned about that unsatisfactory performance before the dismissal
The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in dismissing the employee
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
Any other matters that FWC considers relevant

The above factors will contribute to the Commission making a decision as to whether an employee was subjected to an unfair dismissal.

Mendis & Gibson Lawyers

What is available to me if I am successful in my application for unfair dismissal?

The two main remedies awarded by the Fair Work Commission in successful applications are reinstatement or compensation.

Compensation is the preferred remedy. Compensation endeavours to put the employee in the same position they would have otherwise been in had the dismissal not occurred. How much the Commission will award in compensation is determined on the usual earnings of an individual employee.

Mendis & Gibson Lawyers

What happens if I am unsuccessful in my application?

It is important to be prepared for the possibility of your application being unsuccessful. The Fair Work Commission may dismiss an application on the following grounds:

In the most serious cases, the Commission may have costs ordered against you if the Commission is satisfied that the application is without frivolous and without reasonable cause, or whether it should have been obvious that the application had no real prospect of success.

Employment Law