As a permanent employee, your employer can lawfully dismiss you based on your work performance or your conduct, providing they follow the proper procedure in notifying you and giving you an opportunity to improve performance (where appropriate).
If you believe your employer dismissed you in a harsh, unjust or unreasonable manner, you may be able to make an unfair dismissal claim. You can lodge the application with the Fair Work Commission, who decides on the outcome. We outline the steps you need to take in making an unfair dismissal claim.
Are You Eligible to Make a Claim?
You must first satisfy a number of eligibility criteria before making an unfair dismissal claim. You can check that you are eligible through the Fair Work Commission’s website.
You need to be covered by the National Workplace Relations System (NWRS). In some states, all employees are covered by the NWRS and in others, it only applies to employees of private enterprises.
If your employer is a small business (fewer than 15 employees), you must have been employed for at least one year. If your employer has more than 15 employees, then the minimum employment period is six months.
Your income also affects your eligibility to make a claim. If you earn more than $136,700 per year, then you must either be covered by an award or have an enterprise agreement with your employer to be eligible.
Was the Dismissal ‘Harsh, Unjust or Unreasonable’?
The Fair Work Commission (FWC) will examine your application and consider whether your dismissal is harsh, unjust or unreasonable.
Harsh – The FWC may find your dismissal harsh if your employer’s actions appear disproportionate to the conduct that the dismissal was based on. A dismissal may also be harsh in light of the economic or personal consequences to you.
Unjust – If your employer dismissed you on the grounds of certain conduct and you didn’t engage in the alleged conduct, the FWC may find the dismissal unjust.
Unreasonable – If your employer had no proper grounds to dismiss you or they didn’t follow the appropriate procedure, the dismissal might be unreasonable.
It is important also to note that a genuine redundancy would not be considered harsh, unjust or unreasonable.
The Unfair Dismissal Application Process
After you have established your eligibility, and you believe that the dismissal constitutes an ‘unfair’ dismissal, you can lodge an application to the Fair Work Commission.
1. You Lodge the Application
You will need to fill in a form and lodge an application with the Commission within 21 days from the day you were dismissed. Lodging after this period gives your employer a right to object to the application.
2. Commission Will Check the Application
The Commission will check the application, and consider whether the dismissal was harsh, unjust or unreasonable.
3. Commission Will Notify Your Employer
The Commission will send a copy of the claim to your employer to notify them. If your employer wants to object, they must lodge their objection within seven days of receiving the application. Your employer is also required to send you a notice of their objection.
4. You and Your Employer Will Participate in a Conciliation
The Commission will conduct a conciliation conference between you and your employer. The Commission acts as a neutral third party and conducts the meeting to help you and your employer come to an agreement to resolve the matter.
5. If Unresolved, the Commission Will Determine the Application
If you and your employer do not reach an agreement in the conciliation, the application will be heard and determined by the Commission at a conference or hearing.
Questions about lodging an unfair dismissal claim with the Fair Work Commission? Get in touch with our employment lawyers.
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