What is Unfair Dismissal and When Does it Apply To You?

If you have been unfairly dismissed from your job there are a couple of things you should know about what constitutes unfair dismissal in the eyes of the law and when it applies to you.

Act Quickly

You need to avoid delay. Being dismissed is not pleasant. It's understandable that some people avoid dealing with it, but the time you have available to make an unfair dismissal application is very short.

Be Aware Of Deadlines

If you are in the Federal system under the Fair Work Act 2009, you have only 21 days from your last day of employment (usually the last day you actually worked). If you are in the Western Australian state system under the Industrial Relations Act 1979, you have 28 days. Rules apply to determine which system you are in. If you are employed by a ‘constitutional corporation’ (eg, a Pty Ltd company) you are in the Federal system. Either way, you've got a short amount of time. If you want advice on it, don't leave it until the 21st day.

Application Minimum Criteria

Work out whether you meet the minimum criteria for an unfair dismissal application in the relevant system. If not, you wont be able to make an unfair dismissal claim.

To make a claim to the Fair Work Commission, you need a minimum employment period of 6 months (or if the employer had less than 15 employees, it's 12 months). You also need to be covered by an award or enterprise agreement, or earn below what is called the high-income threshold - currently $142,000 and due to be increased from 1 July 2018. There are rules that determine what is counted as earnings.

To make a claim to the Western Australian Industrial Relations Commission, you need to be covered by a state award or industrial instrument, or earn below the prescribed amount - currently $159,300.00 and due to be increased from 1 July 2018.

Consider other Possible Applications

If you don't fit the minimum criteria, you can consider other kinds of applications. You might have a contractual claim, or another claim under the Fair Work Act if the reason for dismissal is unlawful (for example, an adverse action - General Protections - application).

It’s a good idea to get advice about that.

No Cost Phone Consultation

Many lawyers won't charge you for an initial consultation over the phone.

Whether you pay for it or not, it is in your interests to get early advice about whether your claim is likely to fit existing criteria for unfair dismissal or whether you might have some other type of claim.

Critical Paperwork

Get together all your potential evidence and the things that are relevant. Make sure you keep copies of anything you've got. If you have pieces of communication on your phone, make sure you store this information somewhere else, because you might lose your phone.

Take a screenshot and print it out. Start a folder and store all of your paperwork in it.

Record Your Memory of Events

As soon as you can, record everything you remember about relevant incidents in date order (a timeline). These might be meetings, conversations, things that happened in the office or in the yard or wherever events took place.

Make sure you write down your recollections now. I mean straight away. Your memory is not likely to get any better than it is now. If you can, include the actual words people spoke to the best of your recollection.

Consider What You Want

If the Commission decides you were unfairly dismissed, you can seek compensation and/or reinstatement. The maximum compensation is capped at 6 months. There are particular rules that determine how compensation is calculated. While reinstatement is a possibility, your best protection is to get other employment as soon as possible.

Also, any compensation amount would be reduced if you don’t make reasonable efforts to mitigate your loss by looking for other work.

What About Settlements?

Most claims are settled before they go to a final hearing. This requires both sides to compromise. Settlements usually involve some payment of compensation, agreement on how to treat the dismissal in the future (possibly as a resignation) or what is said to third parties (for example, future employment referee checks) and agreement that there wont be any further legal action or disparaging comments made about each other.

Other matters that might be important to you can also be included, but will need agreement by both parties. Think about what is most important to you and get advice about how best to go about achieving it.

Get Advice

Ultimately, get proper advice as soon as possible. The first call with a  lawyer familiar with employment law might simply be a preliminary assessment. You can then think about getting more advice if you make a decision to proceed with your unfair dismissal application.

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