Unfair Dismissal
Halt | February 13, 2021 | 0 Comments

When Can You Claim Unfair Dismissal In Australia?

If the labor court in Australia finds that you have been unfairly fired, you can ask them to pay you compensation.

Unfair dismissal is a complicated section of ​​labor law, but every employer should understand it. Suppose you do not follow the established rules when firing an employee. In that case, you run the risk of being brought before a labor court and paying compensation.

What Unfair Dismissal Actually is?

What Unfair Dismissal Actually is

In Australia, workers have specific rights to how an employer ends their job. If your employer fired you without a good reason, your firing might be considered unfair.

This means that you have the right to claim compensation.

It is not uncommon for unfair termination lawsuits to be filed. In 2016-2017, the labor court received 12,038 applications for unjustified dismissal. Moreover, 2020 ended with around 750,000 job losses.

As long as you meet the eligibility requirements, the employer must provide a reason for the termination. If your employer cannot prove that the reason is valid, you will be considered unfairly fired.

The Labour Court

The labor court in Australia is a court system independent of the normal civil court system (i.e., county court, superior court, the court of appeal, etc.).

Employment courts only deal with employment law cases, such as wrongful termination, discrimination claims, and improper termination.

In addition to the usual worries, there are also worries about paying rent, keeping the mortgage, and taking care of family members, and there is a sense of injustice.

Your employer is not right if they put you in this situation because of their dishonest behavior.

Claims for Unfair Dismissal?

The first step in any unfair bond application is to determine if you meet the eligibility requirements. Only those who meet these requirements are entitled to claim unfair dismissal.

If you live in Australia, to be eligible for a claim, you must be:

  • Employee
  • Employed for over two Years
  • Dismissed

Let us look at each of them in more detail.

Employee

In everyday parlance, employees often refer to people who work for others. However, the legal definition of the term is much stricter.

Many employment rights are closely related to your employment situation.

What determines your employment status is the actual employment relationship, not what others or you may believe.

Even if your previous “employer” thinks you are not an employee, that does not necessarily mean they are right! When in doubt, seek advice.

If your employment status is in dispute, an employment court will determine whether you are, in fact, an employee. The labor court will carefully study the precise details of your relationship with the “employer” and decide based on the facts.

An example of this type of dispute is a recent dispute with the taxi company Uber over whether its drivers work for the company or are self-employed. Although Uber argued that its drivers were self-employed, the labor court made other decisions.

Employed for Over Two Years

In most cases, only if you have worked continuously for more than two years can you avoid dismissal or unfair dismissal.

The term “continuous” is significant. Some work interruptions can make it impossible to meet the two-year continuous duty requirement.

The continuous operation setting is tricky, but in general:

Unless your employer has other proof, your work is considered continuous.

The shorter period of continuous work can be a significant barrier to wrongful termination requests. Unethical employers may fire their employees before the necessary period of service to avoid potentially unfair termination requirements.

However, suppose you do not have continuous employment in the shortest time possible. In that case, you can still file unfair dismissal requests in certain circumstances.

These are:

You have been fired for reasons related to ‘protected characteristics,’ that is, you have been discriminated against for the following reasons:

  • Sex
  • Age
  • Sexual orientation
  • Disability
  • Gender redistribution
  • Marital status
  • Pregnancy and maternity leave
  • Race / ethnicity / nationality
  • Religion or faith

Also,

  • If you are fired for union membership or activity.
  • You have been terminated for joining the armed force.

The exceptions are set out in the Labour Rights Act 1996. There are many specific exceptions.

Some of the most important parameters are listed below. In general, if you are living in Australia, they protect employees at the time of dismissal by taking into account the following aspects:

  • Jury duty
  • Leaving for family reasons
  • Health and safety matter
  • Working time matters (violation of the 1998 Working Hours Regulations)
  • Make a protected disclosure
  • Claim certain rights of minimum wage
  • Labour flexibility
  • Redundancy

You Were Wrongfully Terminated

To claim wrongful termination, you must be fired by your employer. This seems obvious, especially in the ordinary sense of dismissal.

However, in most cases, if you quit or decide to quit your job, you cannot request wrongful termination.

Dismissal may include other less obvious ways to terminate the employment contract. For example, if you are working on a fixed-term contract and do not renew at the end of the contract, this could be an exemption.

All employment contracts include a period of notice specified in the contract or stipulated by law, although some unusual employment laws exist. You can find them in this article.

Generally, this means that if you or your employer want to stop working, a certain period (from the termination date) must elapse before the contract ends.

Whether or not a termination is issued has nothing to do with whether the termination counts as a waiver but may be necessary for other considerations.

Should You Make the Unfair Claims?

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By filing a request for wrongful termination, you can be compensated for losing your job and other losses. You may also want to restore a lost position or resume a similar job in a previous organization.

However, claims can also provide you with something equally important: justice.

How to Make an Unfair Dismissal Claim?

We strongly recommend that you seek legal advice from a professional employment attorney before taking any action against unjustified termination.

They can help you consider the matter and make useful suggestions. If your proposal is unlikely to be successful, it is best to realize this early in the process.

While seeking legal advice should be considered a critical step, you do not need to instruct an attorney or anyone else to represent you in your case.

No law requires an attorney to be hired in the event of wrongful termination.

However, labor laws can be very complicated in Australia. If you can rely on experience, you need to make sure of the chances of a wrongful termination request. This article will provide you with necessary information on how you can handle an unfair dismissal.

When can you get a Representative?

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During mediation

You can choose to be represented at the mediation stage, although this is not required. However, either party can have a representative at a mediation meeting chaired by a mediator.

Representatives can be lawyers, defense attorneys, union leaders (in the case of employees) or representatives of industry groups (in the case of employers), or even supportive friends or family.

If you are using an agent, you must record their details on your request or response form. If they are not in your room, they will join the mediation over the phone.

In a Hearing

Suppose your case goes to an appointment or hearing, and you wish to be represented by an attorney or a paid agent. In that case, you must obtain approval from the commissioner handling your case, unless that person is:

  • One of your employees or senior staff (if you are an employer)
  • Employed by a union or employers’ organization

You may consider bringing one or more people for support.

Self-Representation

If you choose to represent yourself in litigation, it will be easier for you to be well-prepared.

You may find it helpful to review or complete some of the Hearings and Meetings page documents to help you prepare.

Conclusion

If the Fair Labour Commission determines that someone has been unfairly fired and is unfit for reinstatement, the court can order compensation.

When calculating the amount of compensation, the Fair Labour Commission must consider many factors when deciding whether to claim compensation, depending on your specific circumstances.