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16 December 2020
Being told you are losing your job is difficult to hear.
In this article I will provide an overview of the unfair dismissal application process and what is required for a dismissal to be determined to be unfair.
An employee can apply to the Fair Work Commission for assistance if they believe they have been unfairly dismissed.
To be unfairly dismissed an employee needs to be able to show that they were dismissed.
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An employee is ‘dismissed’ for the purposes of the Fair Work Act when the employee’s employment was terminated on the employer’s initiative or the employee resigned but was forced to do so because of the employer’s conduct.
Only an employee who has completed the minimum period of service for the employer is eligible to make a claim for unfair dismissal.
The minimum period for small businesses – those that employed less than 15 employees at the time of the dismissal – is 12 months continuous service. For all other businesses the minimum period is six months continuous service.
For employers who had less than 15 employees at the time of dismissal they might defend an unfair dismissal claim by showing that they complied with the Small Business Fair Dismissal Code.
You can obtain a copy of this code from the Fair Work Commission’s website.
The following people will not succeed in a claim for unfair dismissal: Employees earning more than $153,600 per annum; independent contractors; employees on fixed-term contracts.
Casual employees will not be able to make a claim unless they were employed on a regular and systematic basis and are able to show they had a reasonable expectation of ongoing employment.
The dismissal will not be deemed to be unfair if the employer can establish the employee’s dismissal was a case of genuine redundancy.
To do this, the employer would need to show they no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
Generally, you will only have 21 days from the date of dismissal to file your application.
The employer might make a jurisdictional objection to an unfair dismissal claim if the employer believes that an employee is ineligible to make a claim due to some of the requirements set out above.
These jurisdictional objections might be required to be heard at a separate hearing.
The dismissal will be considered unfair if the Fair Work Commission is satisfied that the dismissal was harsh, unjust or unreasonable.
There are a number of factors the commission will consider to make this determination.
Where the Fair Work Commission finds that an employee was protected from unfair dismissal at the time of being dismissed and found the person had been unfairly dismissed, they might order the employee’s reinstatement or compensation.
Unfair dismissal can be a complex area of law. I recommend obtaining legal representation should you need to make, or defend, an unfair dismissal application.
• Patrick Smith is the principal of O’Brien & Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.
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