Am I Eligible to lodge an unfair dismissal claim?

Businessman filling out a form with a ballpoint pen.

Businessman filling out a form with a ballpoint pen.

One of the most common questions you may ask yourself about an Unfair Dismissal is, “Am I eligible for an unfair dismissal claim?”
Those who are dismissed from their job may ask, “Was I unfairly dismissed?” Unfair Dismissals Australia is here to help you navigate through the complexity of the Fair Work Act and help you determine your eligibility for a claim. In this article we’ll go over:

  1. What is Unfair Dismissal?
  2. Who is eligible to lodge an unfair dismissal claim?
    2.1 What Constitutes Unfair Dismissal
    2.2 Minimum Employment Period
    2.3 Casual Employees
    2.4 Redundancy

 

What is Unfair Dismissal?

 

A person has been unfairly dismissed if the Fair Work Commission finds:

  1. They were dismissed; and
  2. The dismissal was harsh, unjust, and unreasonable; and
  3. The dismissal was not a case of genuine redundancy; and
  4. If the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.

 

Who is eligible to lodge an Unfair Dismissal claim?

 

A person who is a national system employee who has been dismissed is covered by unfair dismissal laws if they have:

  • Completed the minimum employment period

AND

  • Earn under the current high-income threshold ($148,700 as of 1 July 2019); or
  • A modern award covers their employment; or
  • An enterprise agreement covers their employment

But be quick, you only have 21 days in which to lodge an unfair dismissal claim. So, if you have been dismissed and believe it was unfair, contact Unfair Dismissals Australia for a FREE, no-obligation case assessment.

 

What constitutes Unfair Dismissal?

 

A dismissal occurs when a person’s employment is terminated at their employer’s initiative, or the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in their employer. If you believe your dismissal was unfair, Unfair Dismissals Australia is here to help.

 

While most cases involve a clear and definite termination of employment by an employer, whether orally or in writing, there are some instances where a person’s resignation of employment may still be considered a dismissal. This is known as constructive dismissal. Ultimately, such circumstances would occur when:

  • The employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
  • The employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign. Such conduct could include the withholding of wages, a significant reduction in remuneration or duties, or unilaterally altering a contract of employment

Essentially, constructive dismissal occurs in circumstances where an employer behaves towards an employee in a way that entitles them to treat the employment as at an end. The onus is on the employee to show their resignation wasn’t done so voluntarily, rather, it was forced by the employer.

When determining whether a dismissal was harsh, unjust, or unreasonable, the Commission will consider several factors, including:

  • 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)
  • Whether the person was notified of that reason
  • Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
  • Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
  • If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
  • The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
  • 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
  • Any other matters that the Commission considers relevant

In an unfair dismissal claim, each of the above criteria are mandatory and must be considered in determining whether a dismissal is harsh, unjust or unreasonable. If you feel your dismissal was harsh, unjust, or unreasonable, contact Unfair Dismissals Australia today.

 

What is the minimum employment period?

 

The minimum employment period varies based on the size of your former employer. The minimum employment periods are:

  • Six months; or
  • One year where the employer is a small business

A small business is defined as fewer than 15 employees. The number of employees is determined by a headcount of all full-time and part-time employees. Casual employees employed on a regular and systematic basis are also included in the count.

 

“I’m a casual employee. Can I still lodge a claim?”

 

Typically, a period of casual service will not count towards the minimum employment period unless two criteria are satisfied. They are:

  • The casual employee was employed on a regular and systematic basis; and
  • The casual employee had a reasonable expectation of ongoing employment on a regular and systematic basis

Employment on a regular and systematic basis implies a repetitive pattern of work, with some sort of method, system or plan. It could include a set pattern of shifts or regularity of work.

While a ‘reasonable expectation of ongoing employment’ is not clearly defined, one test that has been used is ‘whether or not during a period of at least six months prior to the dismissal … the employee had … a reasonable expectation of continuing employment on a regular and systematic basis’.

So, if you were a casual worker who has been dismissed, and worked on a regular and systematic basis with a reasonable expectation of ongoing employment, contact Unfair Dismissals Australia for a case assessment.

 

“I’ve been made redundant. Does that mean I’m ineligible to lodge a claim?”

 

Only a genuine redundancy will give rise to an employer being able to lodge an objection to an unfair dismissal claim. So, what makes a redundancy genuine?

A dismissal is a case of genuine redundancy when:  

  • The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, and
  • The employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy

A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within:

  • The employer’s enterprise, or
  • The enterprise of an associated entity of the employer

So if you have been made redundant, but your job is still required, or they’ve advertised it elsewhere, you’ve simply been replaced, and you had no prior consultation regarding the redundancy, nor were offered redeployment options despite there being suitable vacancies for you, contact Unfair Dismissals Australia for assistance.

 

“I think I’ve been unfairly dismissed. What do I do?”

 

If you feel you’ve been unfairly dismissed, contact Unfair Dismissals Australia today. We can be contacted in a number of ways:

By phone: 1800 793 925
By email: [email protected]
Online: http://unfairdismissalsaus.com.au/contact/
By completing our free online claim assessment: http://unfairdismissalsaus.com.au/free-claim-assessment/
Online chat: simply visit http://unfairdismissalsaus.com.au/ and an online Consultant will be available to chat

 

Get a Free Quote now!


    We will be in touch shortly with a quote. By submitting this form, you agree to receive contact from us regarding your case. We won't spam your email or phone.