Most employees will be covered by unlawful termination laws under the Fair Work Act.
However, if you were a contractor to an entity or you were only employed for a specific period of time (and that time has expired), then you will not be covered under the unlawful dismissal laws.
Unlawful reasons for dismissal are expressly stated in the Fair Work Act, and an employer must not terminate an employee for any of those reasons. These unlawful reasons include:
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 unlawful. 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.
The Fair Work Commission will firstly hold a conference in the interest of helping the parties resolve the dispute themselves. The Fair Work Commission will facilitate discussion between the parties to achieve a resolution. In the event the dispute cannot be resolved at the conference, the Fair Work Commission will issue a certificate and the matter may continue.
The matter may then be referred to Arbitration with the Fair Work Commission with the parties’ consent. In Arbitration, the Fair Work Commission will hear the relevant facts and evidence and make a decision about whether the application is successful, or whether the application is to be dismissed.
If the parties do not agree to Arbitration, then they may make an application to the Federal Circuit Court of Australia or the Federal Court of Australia. This application must be made 14 days after the initial conference.
An employee may also decide to discontinue the application by completing the relevant form with the Fair Work Commission.
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. However, unlike unfair dismissal claims, there is no cap on the amount of compensation that may be awarded to the employee if the application is successful.
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