Legal Steps to Take After Being Unfairly Dismissed

This article outlines the legal steps to take after being unfairly dismissed in Australia, detailing the role of unfair dismissal lawyers and the process for filing claims, seeking compensation, and protecting your rights.

 

1.  Introduction: Understanding Your Rights After Unfair Dismissal

Unfair dismissal refers to a legal claim made by an employee when they have been terminated from their job in a manner which they believe is “harsh, unjust or unreasonable” pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act). In such circumstances the aggrieved employee can file an application with the Fair Work Commission (FWC) seeking certain remedies from the employer. Ultimately, however not every dismissal is unfair and not all employees are eligible to make an unfair dismissal claim.

Being unfairly dismissed can be a challenging experience, but understanding your rights under the FW Act is the first step toward seeking justice.

Chamberlains Law Firm’s National Employment Law Team provides crucial support to help employees and employers navigate the FWC process effectively.

2. What Constitutes Unfair Dismissal?

Defining Unfair Dismissal

Unfair dismissal occurs when an employee believes that they were terminated harshly, unjustly or unreasonably. In assessing whether a dismissal falls within this criteria, the FWC must have regard to:

1. 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);
2. whether the person was notified of that reason;
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
5. if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal;
6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
7. 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; and
8. any other matters that the FWC considers relevant.

Whilst there are a plethora of other criteria taken into account, the above is specifically what the FWC must consider. Some common scenarios that may qualify as unfair dismissal claims include:

• Sham redundancy;
• Terminated for misconduct which did not occur or was not substantiated;
• Retaliation for Whistleblowing;
• Failure to consider redeployment;
• Dismissal for engaging union activities;
• Inconsistent application or non compliance with policies;
• Dismissal due to temporary absence;
• Dismissal for exercising a workplace right;
• Dismissal for social media activity;
• Dismissal for having political beliefs;
• Dismissal for refusing to engage in unsafe work;
• Dismissal for pregnancy or illness;
• Dismissal without consultation.

Legal Protections for Employees

Numerous legal protections exist for employees in the workplace.

All employees in the workplace are entitled to receiving the entitlements contained in the National Employment Standards (NES). The NES contains provisions on maximum weekly hours, requests for flexible working arrangements, parental leave, annual leave, personal/carer’s leave, community service leave, long service leave, public holidays, notice of termination and redundancy pay, and the Fair Work Information Statement.

Additionally, employees who have completed the minimum employment period (6 months for large businesses and 12 months for small businesses) are protected from unfair dismissal. Australian employees are also protected from adverse action in the workplace where this adverse action has occurred in connection for exercising their workplace rights.  For example, joining a union and participating in lawful industrial activities is a right which all Australian employees and contractors are entitled to and they are protected from adverse action if they carry out those industrial activities in accordance with the FW Act.

3. Legal Steps for Unfair Dismissal

Step 1: Assess Your Situation

If you believe you have been unfairly dismissed you should begin to gather all documents and correspondence relevant to your claim.

All letters, email correspondence and documents from your employer concerning the termination and its circumstances are essential in building and supporting your claim.

Additionally, a copy of your final pay slip/entitlements paid out to you is important in assessing whether you were fairly paid when you were dismissed.

Your employment contract and relevant workplace policies are crucial. If your employer has not followed the termination process according to their contract with you and the applicable workplace policies, it can assist in demonstrating that your dismissal was unfair. If you do not have a copy of your contract, we suggest you email your previous employer seeking they provide you with your signed employment contract, which they are obligated to provide upon request.

Step 2: Seek Legal Advice from Unfair Dismissal Lawyers

The importance of consulting Chamberlains’ unfair dismissal lawyers to evaluate your claim and guide you through the process is not to be understated.

Chamberlains’ unfair dismissal specialists and the Workplace Team can advise you on your projected prospects of success in the Fair Work Commission and will provide you with a quote on our services to achieve the best outcome in your situation.

Step 3: File an Unfair Dismissal Claim

From the date of your dismissal, you have twenty-one (21) calendar days to gather relevant documents and file your application with the Fair Work Commission. This timeframe is a very strict deadline so it is important that you act quickly. The twenty-one day time limit is very rarely extended so getting your application filed on time is crucial.

Employees should note that there is a high-income threshold in the FWC. As at January 2025, if you earn over $175,000 per year and you are not covered by a modern award, you will be unable to make an unfair dismissal claim. The high-income threshold is reviewed and updated on the first of July each year.

4. The Role of Unfair Dismissal Solicitors in Your Case

How Solicitors Assist with Claims

If you choose to involve an unfair dismissal solicitor in your claim, substantial guidance and assistance is provided. Chamberlains Workplace Law Team will prepare your application to be submitted with the Fair Work Commission, review and advise you on your previous employers response, negotiate with your previous employer regarding early settlement offers and appear in all conciliations, conferences and hearings in the Fair Work Commission

Advocacy in The Fair Work Commission

Most matters that are brought before the FWC are resolved at a “conciliation conference”. The conciliation is facilitated by a mediator from the FWC who will permit the parties to each make a statement before proceeding to give the parties to privately discuss. The mediator will then move between the two parties and convey any offers and discuss progress. If the parties settle, then the FWC will provide a standard form settlement agreement. The parties will generally negotiate on an amount of compensation or other non-monetary consideration, such as a reference or statement of service.

The conciliation is designed to allow the parties to come to an agreement without having to incur the stress and expense of proceeding to a conference or hearing on the matter. If the parties can come to an agreement then the FWC will provide standard terms of settlement which will provide for the settlement of the matter through compensation or some other non-monetary means, and will also provide strict conditions of confidentiality and non-disparagement.

Conciliation is confidential and does not involve the presenting of evidence or making complex legal submissions. It is not designed to test the law or make a factual finding on what happened, rather the purpose is to amicably resolve the issues so that both parties can move forward with their lives. The conciliator does not act as a judge or arbitrator and does not comment on the merits of any particular argument. Their role instead is to allow the parties to have a productive discussion and work towards a resolution. Conciliation is compulsory before matters can proceed to a hearing, however if it is clear at the conciliation that the parties are either unwilling or unable to come to any resolution, then the matter will be listed for a hearing date.

If the matter fails to settle at a conciliation conference, then the matter will be listed for a further hearing date before a member of the FWC. The hearing will be more formal in nature and similar to a court trial, where the parties will be required to give evidence and there will be an opportunity for the parties to cross-examine witnesses and make legal submissions to the presiding member. If the matter goes to a hearing, then the FWC member will make and publish a formal decision after the hearing.

Chamberlains can assist with representation and advice at all stages of the process. If a matter has progressed to a hearing, then it is essential to get legal support and representation as the hearing will involve complicated questions of law, much the same way a court trial would. Although a hearing is intended to be more informal and cost effective than a court proceeding, it is still a specialised matter requiring specialist advice.

5. Possible Results of Unfair Dismissal Claims Seeking Compensation for Unfair Dismissal

In the FWC there are two main successful outcomes of an unfair dismissal claim:

• Reinstatement: If appropriate, the FWC may decide that reinstatement is the preferred remedy.
  • If reinstatement is awarded the employee must be awarded to their role and position as at prior to their dismissal. This can include a recognition of continuity of service and continuity of pay/benefits that the employee lost while not employed.
• Compensation: Compensation can only be awarded for lost income. Compensation cannot be awarded in the FWC for hurt, humiliation, shock, distress or suffering.
  • Compensation in the FWC is capped at half of an employees annual earnings (6 months wages) and the compensation limit is currently $87,500 (limits can change on 1 July each year)
  • It is worth noting for employees that compensation is rarely awarded of 6 month’s wages. Rather the median compensation amount is roughly 5 – 7 weeks’ wages.

 

6. Conclusion: Protecting Your Rights with Legal Expertise

• If you are involved in an unfair dismissal application, it is important to gather your evidence and act quickly to receive legal advice from Chamberlains to ensure that any necessary applications can be filed within 21 days. The experienced Workplace Law Team offer a free consultation to discuss your case and advise you on the best options for your circumstances. In addition to providing advice on your case, we will also discuss with you the options for remedies and the outcome that you are seeking. Chamberlains’ Workplace Law Team will be with you every step of the way throughout your claim and will aim to ensure that a just and equitable outcome is achieved. Don’t hesitate, reach out today!

*This article was prepared with the assistance of Challita Tahhan