The Fair Work Act 2009 (Cth) says that unfair dismissal is “a dismissal that is harsh, unjust or unreasonable.”
You may be eligible to lodge an unfair dismissal application with the Fair Work Commission if you:
- were employed for a minimum 6-month period (or minimum 12-month period if your employer is a small business employer);
- were dismissed from your employment (if you have not been dismissed, please call to discuss what other options you may have available); and
- are either:
a. under the high income threshold ($145,400 per year as at the time of writing); or
b. have Award coverage.
In some situations, casual employees are eligible to make an unfair dismissal claim. If you were employed as a casual, please call our office to discuss your particular circumstances.
The applicant for unfair dismissal must submit the application to the Fair Work Commission within 21 days. Failure to submit in time may mean that you are ineligible.
In determining whether the dismissal was harsh, unjust or unreasonable the Fair Work Commission must take into account:
- whether there was a valid reason;
- whether you were notified of that reason;
- whether you were given an opportunity to respond to the reason;
- any unreasonable refusal by the employer to allow you to have a support person present during any discussions;
- if related to unsatisfactory performance, whether you had previously been warned about unsatisfactory performance;
- the degree that the size of the employer’s enterprise would impact on the procedures followed to effect 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 the Fair Work Commission considers relevant.
Even if you are not eligible for unfair dismissal, there may be other options available to resolve your employment dispute.
To discuss your options, please call us at our Wangaratta office on (03) 5722 4681.
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