A dismissal of employment may be deemed unfair if it is harsh, unjust or unreasonable, or not due to a genuine redundancy. If you have been dismissed from employment in circumstances you consider likely to meet this test, you may wish to bring a claim for unfair dismissal, and fast.

What to ask before you sue for unfair dismissal

Here are some of the questions you should ask yourself, and be prepared to provide to your lawyer if you are considering going down this route:

  1. Am I eligible to bring a claim? Your ability to bring a claim will depend on your income and the length of employment up to the date the termination takes effect. Further, if your employer is a small business employer, the rules apply slightly differently and may impact your ability to bring a claim.
  2. Was I warned my job could be terminated? It is commonplace for employees bringing such claims to argue that they were not warned their jobs were on the line. If you were warned, how did this occur, and was it made very clear to you what you would need to do to keep your job, and by when?
  3. Am I within time to bring a claim? A claim must be lodged within 21 days of the date on which the termination took effect. While the Fair Work Commission does have the ability to extend this time limit in exceptional circumstances, this is the exception, rather than the rule. Failure to make an application within the required period after the date of dismissal is usually fatal to an applicant’s claim.
  4. Was I afforded procedural fairness in the dismissal process? Here, the Commission will examine whether the employee was notified of the reason for dismissal or warned dismissal; whether they were given an opportunity to respond to any reason, any unreasonable refusal by the employer to allow the employee to have a support person present to assist in discussions relating to the dismissal; whether the employee had been warned about any unsatisfactory performance before the dismissal; and any other reason or factor deemed relevant.
  5. What is my actual loss? Having a basis to bring a claim is one thing, having an actual loss to claim is another altogether. In determining the appropriate award of damages in a successful unfair dismissal application, the Fair Work Commission will examine, as a matter of fact, what actual loss has been suffered. Accordingly, if you get another job straight away with the same or better pay, your loss is arguably nil or negligible, and it may be of no utility to claim at all.

Conclusion

If, after considering these issues, you believe you may be entitled to claim for unfair dismissal, you should talk to an employment lawyer straight away (after all, the clock is ticking!)

Get in touch with LegalVision today on 1300 544 755.

Emma Jervis

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