As an employer, dealing with misconduct or under-performing
employees is complex and fraught with legal and financial dangers.
As an employee, being unfairly dismissed can be distressing and
damaging to your reputation and financial security.
Dealing with an unfair dismissal claim requires an understanding
of the complexity of employment law, compliance with relevant
industrial and employment laws, and how each determines the
eligibility of your claim or defence. Whatever side you are on, it
is important to get legal advice from a
specialist employment law firm as soon as possible.
MAKING AN UNFAIR DISMISSAL CLAIM
Unfair dismissal refers to situations where an employee's
dismissal is harsh, unjust or unreasonable, either in the
reasons for dismissal or the
procedure leading to dismissal.
There are state and national laws that deal with unfair
dismissal and each has its own tribunal or industrial commission.
The national workplace relations tribunal is the Fair Work
Commission, while the state tribunal in WA is the Western
Australian Industrial Relations Commission.
Generally speaking, employees are not covered by the
national system if they are employed by:
The WA government and some local councils
Australian corporations whose main activities fall outside of
trade and finance
A foreign corporation
Sole traders, unincorporated partnerships and some trust
It can be difficult to know which law applies to your situation
and what your rights and obligations are.
Both tribunals have rules about who can and cannot bring an
unfair dismissal claim. For example, how much an employee earns or
their completion of a qualification period may affect their right
to bring a claim. An experienced workplace lawyer can help you
determine which laws are relevant and whether there would be
jurisdictional objections to the claim. They can also inform you
whether anything that is considered unlawful has occurred and the
chance of success for your claim or defence.
If an employee works for a business other than those listed
above, such as a constitutional corporate engaged in a significant
amount of trading or financial activity, their claim falls under
the national system. This is governed by the Fair Work Act
2009. In order to make an unfair dismissal claim, the employee
Be covered by a modern award, or
Be subject to an enterprise agreement, or
Have a salary that doesn't exceed a defined maximum
Have been employed for longer than 12 months if the business
has fewer than 15 employees, or 6 months in other cases
An unfair dismissal claim can't be made where the dismissal
was a genuine redundancy. This covers situations where:
The employer no longer required the job to be performed because
of operational changes
It was not reasonable to be redeployed in another area of the
The employer has consulted and complied with all obligations
relating to a modern award or enterprise agreement.
If an employee is excluded from making an unfair dismissal
claim, there may be other legal options available, including claims
Unlawful termination (dismissed due to discrimination)
Breach of contract
Equal opportunity or anti-discrimination
General protections disputes (national law)
General protections disputes are unique as they cover both
dismissals and disputes where the employee was not dismissed.
Non-dismissal disputes deal with discrimination, freedom of
association and the ability to exercise or not exercise workplace
General protections dismissal disputes begin with the parties
attending a conciliation conference at the Fair Work Commission in
an attempt to settle the claim before the case can be heard by a
Strict time limits apply to making an unfair dismissal claim.
For employees that fall under national law, they have 21
days from the date of dismissal to make a claim. For
employees under state law, they have 28 days from
the date of dismissal. This time can only be extended in
Given the complexity of the law in this area and the very short
time limits involved, it is vital to seek legal advice and act as
soon as possible, whether you are an employee who has just been
dismissed, or an employer who has had an unfair dismissal claim
brought against you. An experienced employment law firm can help
save costs, thoroughly evaluate the merits of a case and help you
act in a timely manner.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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