Employment Law

Unlawful Dismissal

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

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Unlawful dismissal lawyers Essendon and Melbourne

Dismissal is where an employee’s position with a business or company has been terminated by the initiative of the employer. In some cases, dismissal may occur in unlawful circumstances. Section 772 of the Fair Work Act 2009 expressly states the the unlawful reasons for dismissal, and if a person has been dismissed for any of the reasons within the Act, an application may be made with the Fair Work Commission.

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Are all employees covered by the unlawful dismissal laws?

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.

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Have I been unlawfully dismissed?

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:

If you believe you have been terminated from your employment for any of the above reasons, then an application may be made to the Fair Work Commission.

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What is the application process?

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.

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What is available to me if my application is successful?

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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What happens if my application is unsuccessful?

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.