What makes a workplace dismissal unfair?

STRESS, anxiety and the 2am sleep-depriving question of "How will I pay the bills?" are all side effects of unexpectedly getting the sack.

Times have changed from the dark old days where employees could simply be fired with no explanation.

In this first of a four-part series looking briefly at the rights of sacked workers, we consider unfair dismissal.

Very rarely will sacked workers consider their dismissal fair, but to be eligible to apply for a remedy against unfair dismissal these criteria must be met:

  • There must be an effective dismissal of employment, which includes being forced to resign as a result of the employee's conduct;
  • The employee must have been employed for at least 6 months (12 months if the employer is a small business); and
  • The employee must be covered by an award or agreement, or their income must not exceed the high income threshold, currently $133,000 a year.

To be successful, the Fair Work Commission must find the dismissal was harsh, unjust or unreasonable.

  • While every case is assessed on its own merits, the Fair Work Commission will consider the following:
  • Whether the employer terminated employment for a valid reason, related to the employee's conduct or capacity;
  • Whether the employee was informed of the reason and given an opportunity to respond;
  • Whether the employer allowed the employee a support person for discussions regarding the dismissal;
  • Whether the employer had dedicated human resource officers or employment policies, depending on the size of the employer's business; and
  • Any other factors that the Fair Work Commission sees as relevant in the circumstances.

An application for an unfair dismissal remedy may be made seeking re-instatement or compensation limited to 26 weeks' wages where re-instatement is not practical.

Unfair dismissal claims involve an extremely strict time limit.

Applicants must bring their application claiming unfair dismissal within 21 days of being dismissed.

As there is no room for delay, advice should be obtained quickly and action taken immediately.

Note: This advice applies to people employed by businesses, not state or local government.

Elspeth Ledwy is a senior associate with Kelly Legal practising in personal litigation and injury law. Contact mail@kellylegal.com.au or visit kellylegal.com.au.

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