Being unfairly dismissed from your employment can place a lot of stress on you and your family. If your dismissal is harsh, unjust or unreasonable, it can also have an impact on your ability to obtain new employment and maintain your regular lifestyle. You may be eligible to make an unfair dismissal claim. Show
Although we can’t alleviate the stress you may be experiencing, we may be able to help you receive some compensation via an unfair dismissal claim. We may also be able to have your sacking converted to a resignation and have a Statement of Service issued to you which should place you in a better position to find a new employment relationship. However:
What type of claim am I eligible for?You should also be aware that you may have more options available to you than just an unfair dismissal claim. These other types of claims could entitle you to much more compensation, because some of these claims have uncapped compensation. You could have a:
If you have one of these other claims, you need to be careful not to commence or settle an unfair dismissal claim first, as it could prevent you from making the other claim. That is why it’s important to speak to a lawyer before lodging your unfair dismissal application with the Fair Work Commission (FWC). What do I do now? What are the costs involved in an unfair dismissal claim?If you have been terminated and you think the circumstances are harsh, unjust, unreasonable, or in breach of your contract, one of our experienced team’s members can provide you with a preliminary assessment of your circumstances to assist you to decide which path to take. The preliminary assessment does not involve the provision of a comprehensive advice about your circumstances, rather it’s a twenty minute telephone conference with one of our team members at a prearranged time to assist you to decide which path to take. Contact our Employment Law Team today to find out the cost of, and arrange a time for, the preliminary assessment. Unfair Dismissal Laws: Frequently Asked QuestionsPlease read our FAQs below before getting in touch with us. 1. Have I been unfairly dismissed?If your employer has broken the law in dismissing you or they have breached your employment contract, you may be eligible to lodge an unfair dismissal claim under the Fair Work Act 2009 (Cth). Common situations in which a dismissal is deemed unfair:
In unique circumstances, there are also a number of other considerations the Fair Work Commission (FWC) makes when deciding if a dismissal was unfair. If your dismissal does not fall into one of the common situations listed above, and you still believe it to be unfair, you should seek legal advice immediately. 2. Am I eligible to make an unfair dismissal claim?In order to be eligible to make an unfair dismissal claim in NSW, your employment relationship must fall within the scope outlined within the Fair Work Act 2009 (Cth). This means:
You will not be eligible if:
The best way to determine if you are eligible is to take this online quiz: click here 3. If I was made redundant, can I still make an unfair dismissal claim?It is common for employers to dismiss employees on the basis of redundancy and use this as a valid reason for the dismissal. However, this can only legally occur if your position was genuinely made redundant. This means:
The law that governs redundancy and unfair dismissal is complex and, in most cases, requires interpretation from a person or entity that has experience in this area of Employment Law. If you have any doubts about your eligibility you should seek legal advice immediately, as a strict time limit of 21 days does apply. 4. If I resigned, can I still make an unfair dismissal claim?
This is when a ‘Constructive Dismissal‘ occurs. A constructive dismissal is when the employee resigns, because of the conduct or actions of their employer. The single most common situation that this occurs in is when an employer gives their employee an ultimatum by telling them that they must resign or be sacked. Again, this is another complex area of Employment Law that requires legal advice to determine eligibility. 5. What is the difference between unfair dismissal and unlawful termination?An employee who is not eligible to make a claim may still be able to make an Unlawful Termination Claim (also called a General Protections Claim). This type of claim does not look at whether the dismissal itself was unreasonable, unjust or unfair. Instead it looks at whether the reason behind the dismissal was contrary to unfair dismissal laws (unlawful). Common situations in which a termination is deemed unlawful:
6. How much am I likely to receive if my unfair dismissal claim is successful?Generally, there are two outcomes for unfair dismissal claims: reinstatement or compensation. However, reinstatement rarely occurs. The maximum compensation payable is capped at six months pay (read this article) This will generally only be awarded in the most serious of cases. If the employee is reinstated, they may still be eligible to receive “back pay” for the period of unemployment from the date of dismissal to the date of reinstatement. 7. How strict is the 21 day time limit for unfair dismissal claims?Very strict, however, there have been cases where the FWC has extended the time limit, but only in exceptional circumstances. If the time limit has passed and you still want to lodge a unfair dismissal application, you should seek legal advice immediately to determine if your situation might qualify as an exceptional circumstance. If you are going to make a claim, ensure sure you do so within 21 days of your termination 8. What is the first step?The first step you should take is contacting the FWC (http://www.fwc.gov.au – 1300 799 675), who are the national workplace relations tribunal. If it looks like you have a viable unfair dismissal claim, the FWC will advise you to seek legal advice – which is when you get in contact with us. Note: while contacting the FWC should be the first step you take, we still recommend seeking the advice of an Employment Lawyer before you file your claim form. 9. What is a breach of contract claim? (In the context of a dismissal)If your employer, by dismissing you, has breached one or more of the terms of your employment contract (whether or not that contract is in writing) you may have a breach of contract claim. 10. What is an adverse action claim? (In the context of a dismissal)If your employer has dismissed you merely because you exercised, or sought to exercise, a workplace right (e.g. to take sick leave) you may have an adverse action claim. 11. What is a discrimination claim? (In the context of a dismissal)If your employer discriminated against you by terminating you because of one or more of your personal attributes. Your personal attributes include your: race; skin colour; social origin; gender; sexual preference; age; physical or mental disability; marital status; family or carer responsibilities; pregnancy; religion; or political opinion. Recent casesDate of dismissal: January 2021 Date of dismissal: 11 March 2021 |