Unfair dismissal

Unfair dismissal and constructive dismissal are complex legal matters and need to be dealt with promptly and by experts. At Maurice Blackburn, our highly experienced employment lawyers can assist and advise you on matters such as unfair dismissal applications, and Fair Work Commission conferences and hearings. We can also assist with claims for damages and compensation including enforcing contractual rights, bonus and profit sharing schemes, and discretionary entitlements. It is important to note that there is a 21 day time limit for making an unfair dismissal application.

We are a national firm with highly regarded local employment lawyers, which means that we understand your situation and we have the resources to achieve the best outcome for you. At Maurice Blackburn we deliver sound advice and realistic, achievable solutions to your individual concerns. We have a highly successful record in unfair dismissal litigation and can assist you today.

If you are dealing with unfair dismissal we can help. Contact us today to discuss your case.

Dealing with unfair and constructive dismissal

Unfair dismissal can incorporate issues of employment type, award and enterprise agreement coverage, time limits for claims, the provisions of the Fair Work Act 2009 and the Small Business Fair Dismissal Code. The definition of ‘dismissal’ can include a situation where you resigned but were forced to do so because of conduct, or a course of conduct, engaged in by your employer. This is commonly referred to as 'constructive dismissal'.

We are the nationally acknowledged experts in employment law matters and will ensure that your rights, earnings and reputation are protected.  Most of our employment law matters are discreetly and successfully resolved without ever needing to go to court, and our executive employment specialists can ensure you receive the full benefit of all rights and entitlements, including bonus schemes and discretionary entitlements.

Maurice Blackburn are the experts in employment law and will achieve the best result for you.

Can you make an unfair dismissal claim?

Unfair and unjust dismissal is a complex area of the law – that’s why Maurice Blackburn are the best choice. We can help you understand and decide on the best course of action to follow including whether to pursue a claim for compensation for wrongful dismissal. Even if you are unable to make an unfair dismissal claim, you may be able to make an unlawful dismissal claim or a general protections claim. Our highly experienced employment attorneys will help you understand and decide on the best solution for you.

Our expert employment solicitors can help you decide the best course of legal action to pursue. Call us today to find out how we can help.

Successful cases

Gill v Jetstar

Gill v Jetstar Airways Pty Ltd [2016] FWC 1472

In 2016 Maurice Blackburn was successful in having an aircraft Engineer reinstated to his employment.

The employee was dismissed for driving a tow tug on a public road to a nearby service station. The Engineer admitted he had done the wrong thing but we argued it was harsh and unfair to dismiss him. The Fair Work Commission agreed that the dismissal was harsh and unfair and ordered that the Engineer be reinstated to his employment.

Frequently Asked Questions

Can I make an unfair dismissal application?

Most employees who are employed by incorporated companies are considered national System Employees. In Victoria almost all employees are considered national System Employees. These employees are able to bring an unfair dismissal claim, provided they are not caught by one of the exclusions.

There are a number of exclusions that apply in respect of when a person can make an unfair dismissal application.

The following employees are excluded from bringing an unfair dismissal claim:

  • an employee who has been employed for less than 6 months unless the employer is a small business employer, in which case less than 12 months
  • employees whose dismissals are consistent with the Small Business Fair Dismissal Code('the code') cannot bring an unfair dismissal claim, and
  • an employee who is genuinely made redundant cannot bring an unfair dismissal claim.
  • their employment is covered by a modern award
  • their employment is subject to an enterprise agreement, or
  • their rate of pay is less than an amount set out in the regulations($129,300, as at1 July 2013).

If the exclusions do not apply, the employee also needs to meet one of the following requirements:

  • their employment is covered by a modern award
  • their employment is subject to an enterprise agreement, or
  • their rate of pay is less than an amount set out in the regulations ($129,300, as at 1 July 2013).

What about Casual employees' rights?

For casual employees, their service does not count towards the 6 or 12 month qualifying period unless they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis.

Small Business Fair Dismissal Code

A dismissal is consistent with theSmall Business Fair Dismissal Codeif two threshold requirements are met. Firstly, immediately before the dismissal or at the time of notice of dismissal (whichever happens first), the person's employer was a small business employer. Secondly, the employer complied with the code in relation to the dismissal.

The code initially requires the employer to identify:

  • the number of employees
  • whether the employee being dismissed has been employed as a permanent employee or a regular casual for more than 12 months, and
  • whether the employee is being dismissed due to redundancy or serious misconduct.

If the employee has been employed for over 12 months and has not been made redundant or dismissed for serious misconduct, then the employer is required to:

  • warn the employee
  • provide the employee with a reasonable amount of time to improve performance or conduct
  • give the employee a reasonable chance to rectify the problem, and
  • advise the employee of the reason for dismissal and give the employee an opportunity to respond.

What is a Small business employer?

A small business employer is defined as an employer that employs fewer than 15 people at the relevant time. This calculation is based on a simple head count.

At the time of a worker's employment being terminated, the worker should be counted when determining the number of employees, as are any other employees who are terminated at the same time.

What things does the Fair Work Commission consider?

When considering whether a termination of employment was harsh, unjust or unreasonable, Fair Work Commission (FWC) will consider:

  • whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)
  • whether the person was notified of that reason
  • whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
  • any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
  • if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
  • the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in dismissing the employee
  • the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
  • any other matters that FWA considers relevant.

What are the time limits for making an unfair dismissal application?

It is important to note that there is a 21-day time limit for making an unfair dismissal application. In limited circumstances, the time may be extended if the Fair Work Commission is satisfied that there are exceptional circumstances. This includes:

  • the reason for delay
  • whether the person first became aware of the dismissal after it had taken effect
  • any action taken by the person to dispute the dismissal
  • prejudice to the employer including prejudice caused by the delay
  • the merits of the application, and
  • fairness between the person and other people in a similar position.

Before dealing with the merits of the application, FWC is required to decide whether the application was made in time, whether the person has jurisdiction to make the application, whether the dismissal is consistent with the code (if the employer is a small business) and whether it was a case of genuine redundancy.

What are unfair dismissal conferences and hearings?

FWC must conduct a conference or hold a hearing in relation to the application if the matter involves disputed facts.

If FWC decides to hold a conference, it must, when considering the application take into account any difference in the circumstances of the parties. FWC must also take into account the wishes of the parties in the way it considers the application. FWC must not hold a hearing in a matter unless it considers it appropriate to do so, taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter.

What remedies are available in unfair dismissal proceedings?

If FWC finds that a dismissal is harsh unjust or unreasonable it may order that:

  • the employee be reinstated, or
  • the employee be awarded compensation not exceeding 26 weeks pay.

The Fair Work Act explicitly states that FWC cannot as part of any compensation include a component for shock, distress or humiliation, or other damages caused by the manner of the dismissal.

Can costs can be awarded in unfair dismissal cases?

Costs are only awarded where FWC is satisfied that a party started an application or responded to an application vexatiously or without reasonable cause, or where it should have been apparent that the application or response had no reasonable prospects of success.

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