Leading Employment Lawyers | Unfair Dismissal Claims

 If you have been dismissed from your employment, the dismissal may have been unfair within the meaning of the Fair Work Act 2009 (Cth) (“the Act”). An unfair dismissal occurs where an employee is dismissed, and the Fair Work Commission (“FWC”) finds that: 

• the employee was dismissed, and
• the dismissal was harsh, unjust or unreasonable, and
• the dismissal was not a case of genuine redundancy, and
• where the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.

The jurisdiction for the FWC to hear a case for Unfair Dismissal varies on the size of the business, and the length of time the employee has been with the employer. For instance, where the employer business has less than 15 employees, the employer is instead bound by the Small Business Fair Dismissal Code and subject to different obligations. 

The criteria for establishing harshness is set out at s 387 of the Act. The FWC can look to whether the reason for dismissal was valid, whether procedural fairness was afforded to the employee, and various other matters to make a determination as to the validity of the dismissal. 

Standing

Before bringing a claim, you must first establish that you have the requisite standing, or rather, that you fit the eligibility criteria, for bringing a claim for unfair dismissal. The grounds for standing are set out within the Fair Work Act 2009 (Cth) (“the Act”). In order to bring a claim for unfair dismissal, you must:

• • 1.  Have completed the minimum period of employment. In companies with more than 15 employees, the minimum period of employment is 6 months. In companies with fewer than 15 employees, the period is 12 months. The period of employment in both cases must be continuous in order to satisfy this requirement, see s 384(1) of the Act;
    2.  Be covered by the national workplace relations system. We note that the majority of private sector employees are employed by virtue of a contract which specifically notes that the place of employee is afforded the rights and protections pursuant to the national workplace relations system.
    3.  File your claim in the Fair Work Commission (this is done by filing a written application either by post or email) within 21 days of the date of dismissal, see s 394(2) of the Act. This deadline for filing must be strictly adhered to, and the circumstances under which the Fair Work Commission (“FWC”) will accept an application filed late in time are exceptionally limited.

Importantly, if you have resigned from your employment, but you were forced to do so because of the conduct of your employer, you are still considered to have been dismissed pursuant to s 386(1)(b) of the Act.

Commencing your claim

To file for unfair dismissal, you must lodge a written application form with the FWC, the form is made available through their website. The form requests that you some basic information such as your personal details, details of your employer, and the general basis for your claim, together with confirmation of what outcome you are seeking through raising the dispute.

Here we note that it is preferable for an applicant to engage a legal representative in order to outline the specifics of their case sufficiently on the application form. For instance, should you engage a legal representative, your application will contain the specific details of why the dismissal was unfair, and what remedy you are seeking. It is a benefit to have those details clearly spelt out in the application so that the appointed Commissioner can ascertain the strength of your case from the outset.

Conciliation

Upon receiving your application, the FWC will generally attempt to resolve the dispute between you and the employer at the earliest opportunity. This is done by inviting the parties to a mediation. The conciliation is voluntary, and neither party is obligated to take part. However, based on our experience, many disputes can be resolved by way of a conciliation held in good faith.

During conciliation, both parties will have the opportunity to put forward the respective strengths of their positions. For an applicant, it will be important to set out clearly why the dismissal was unfair. Section 385 of the Act sets out that a dismissal is unfair if the FWC is satisfied that:

• the person has been dismissed;
• the dismissal was harsh unjust or unreasonable;
• the dismissal was not consistent with the Small Business Fair Dismissal Code; and / or
• the dismissal was not a case of genuine redundancy.

Note that subsection (b) specifically states “or”. It is therefore only necessary to show that the dismissal was harsh or unjust, or unreasonable.

In participating in the conciliation, it is necessary to have a strategic approach, and to consider alternative proposed settlement positions in advance. For example, you may wish to start by demanding a 16-week settlement, but ultimately be happy to accept a 10-week settlement.

Hearing

If the matter fails to resolve at conciliation, the FWC will list the matter for a formal hearing. Much like commercial litigation, directions will be issued by the FWC for the parties to put on evidence in support of their position. This will be followed by a scheduled hearing date.

The hearing will be an opportunity for both sides to call witnesses, read on evidence, and cross-examine the opposing sides witnesses to ascertain the various strengths and weaknesses of the opponent’s position.

The FWC will subsequently make a decision based on the strength of the evidence put before it and apply the relevant legislation and case law to make a decision as to whether the dismissal was unfair or not.

Outcome

The FWC may find in your employer’s favour. Although the FWC is generally considered a costs neutral jurisdiction, the FWC can order that your employers costs are payable by you.

If the FWC finds that the dismissal was unfair, the FWC may Order that your employer pay your costs, pursuant to s 400A of the Act. In addition, it may proceed to make a variety of other Orders, including the following:

1. Reinstatement – that you be reinstated to your position, see section 391 of the Act;
2. Compensation – a monetary amount to be paid to you in recognition of the financial losses resulting from the unfair dismissal, see section 392 of the Act; and
3. Other remedies – this may include an order for adjustment to workplace policies or mediation.

Green & Associates Solicitors Experience and Success   

Filing for unfair dismissal can be a daunting process. Often it involves you confronting your employer that has untold financial means and experience in such matters. Here at G&A we have a track record of obtaining excellent outcomes for our clients in unfair dismissal applications, further, there have been several occasions where our client’s have obtained settlements from employers without having to file an application with the FWC. 

• We have succeeded in an unfair dismissal claim where client dismissed as employer discovered them “wagging” work consistently;
• We have run a successful defence in an unfair dismissal claim where our client was charged with stalking and harassing their co-worker and had an AVO in place;
• We have succeeded an in unfair dismissal claim where our client was accused of sexual harassment, by proving consent and encouragement;
• We have obtained a significant settlement for client at mediation having commenced a General Protections Claim against the employer while the client was still in the probation period;
• We have resolved an employment commission dispute directly with the employer, resulting in a the employer making payment to client for October commission where they were previously refusing to bring defamation complaint against a NSW department for a client slandered by its staff;
• We settled an employment dispute where the employee was subjected to four different sets of allegations amounting to serious misconduct. The employee was threatened with termination and no notice period. Within 5 days we had negotiated:
  • • • 1. Opportunity to resign;
        2. 4-week notice period be paid;
        3. An additional 8-week salary be paid;
        4. Annual leave accrued be paid out;
        5. Commission owning be paid out; and
        6. Statement of Service be provided by employer

Please contact Green & Associates Solicitors on (02) 8080 7585 to discuss your personal matter in detail.