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Unfair dismissal is when an employee is dismissed from their job harshly, unjustly or unreasonably, and the dismissal is not due to a genuine redundancy. The Fair Work Act 2009 protects employees from unfair dismissal. You may wish to bring a claim if your termination meets these circumstances. This article will ask you questions about what to ask before you sue for unfair dismissal.
What to Ask Before You Sue for Unfair Dismissal
You should ask yourself the following questions before bringing an unfair dismissal action. The lawyer you hire to represent you will need your answer to some of these questions.
1. Am I Eligible to Bring a Claim?
Your eligibility to bring a claim will depend on both your income and length of employment. The length of employment is calculated up until the date of your termination. Usually, that means you have completed the minimum period of employment or passed your probation period and that you earn less than the high-income threshold (currently $167,500). See Part 3.2 – Unfair Dismissal of the Fair Work Act 2009 to cross-check your protection, eligibility, period of employment and income criteria. Further, if your employer is a small business, the rules apply slightly differently and may impact your ability to bring a claim. You need to ask if you raised your concerns about your termination internally. Did you discuss your unfair dismissal with your previous employer or the HR department?
2. Was I Warned My Job Could Be Terminated?
Employees commonly assert that they were unaware they may lose their jobs before their termination. Your employer, however, may warn you that they may terminate your employment. If your employer gave you this warning, you should keep a note of:
- how this occurred; and
- whether it was clear to you what you would need to do to keep your job and by when.
If you have any written evidence of these warnings, it is best to keep them. The warnings you receive may be in the form of an email or text message. Also, you should keep a record of whether your employer gave you an opportunity to amend or resolve your behaviour before they terminated your employment.
3. Am I Within the 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 can extend this time limit in exceptional circumstances, this rarely happens. Failure to apply 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 of dismissal; whether they were allowed to respond to any reason; where you given any procedures, tips or advice to resolve or amend the conduct, 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 the emotional or financial loss that has been suffered. For example, if you get another job immediately with the same or better pay, your loss is arguably nil or negligible, and it may be of no utility to claim at all.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Being unfairly dismissed can be stressful and frustrating. It is essential to ask these 5 questions before seeking to sue for unfair dismissal. By asking yourself these questions, you can save both time and money. If, after considering these issues, you believe you may be entitled to claim for unfair dismissal, you should talk to an employment lawyer immediately with all of the evidence you have of the unfair dismissal (after all, the clock is ticking!).
If you need help understanding if you have a valid unfair dismissal claim, contact our experienced employment lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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