Have you been unfairly dismissed?

Unfairly dismissed. This is a term that can get thrown around quite easily, but what does it actually to mean to be ‘unfairly’ dismissed?

Adams & Partners Lawyers have extensive experience representing workers who have been unfairly dismissed and can advise you whether you may have been unfairly dismissed from your job and what you can do about it.

The vast majority of workers in Australia now fall under a ‘Federal’, or ‘national’ system of workplace laws. The Fair Work Commission is Australia’s national workplace relations tribunal. It is an independent body with power to carry out a range of functions under the Fair Work Act 2009. More information about the Fair Work Commission can be found here.

In considering whether you have been unfairly dismissed at work, the Fair Work Commission need to decide whether your dismissal was harsh, unjust, or unreasonable. It is not necessary that all three of these apply. In deciding this, the Fair Work Commission will consider the following:

  1. Whether there was a valid reason for your dismissal in relation to your capacity or conduct (including its effect on the safety and welfare of other employees). The word ‘valid’ has previously been defined by the Courts as one that is ‘sound, defensible or well founded’. A valid reason for dismissal is not one that is ‘capricious, fanciful, spiteful or prejudiced’.
  2. Whether you were notified of the reason you were dismissed.
  3. Whether you were given an opportunity to respond to any reason related to your capacity or conduct.
  4. Any unreasonable refusal by the employer to allow you to have a support person present to assist at any discussions relating to dismissal
  5. If the dismissal related your unsatisfactory performance – whether you had been warned about that unsatisfactory performance before the dismissal.
  6. The size of your employer and how that may impact on the dismissal process, including whether your employer has a dedicated HR team or expert.
  7. Any other matters that the Fair Work Commission consider relevant.

For you to succeed in your claim, it is not necessary that the Fair Work Commission decide that all of the above consideration apply. Perhaps only one or two apply in your situation.

In order to commence a claim for unfair dismissal against your employer, this will generally require that an application be drafted and lodged with the Fair Work Commission. Once a claim is lodged, the employer is given the opportunity to draft and lodge their response. The Fair Work Commission will then schedule a conciliation conference between the employee and employer to give the parties an opportunity to state their case and attempt to settle the matter. The conciliation process is overseen and assisted by a Fair Work Commission Conciliator.

It is important that your unfair dismissal claim is support by a well-drafted application, and an experienced advocate who can speak on your behalf during the conciliation process. The team at Adams & Partners Lawyers can take care of the entire process from start to finish. Using our experience, we achieve favourable outcomes for the majority of employees at the conciliation stage, without having to proceed any further to court. This means that legal costs are kept to a minimum, and you can get on with your life quicker.

It is important to know that you only have 21 days from the date you were dismissed to lodge your unfair dismissal application with the Fair Work Commission. Only in special circumstances can this deadline be extended.

If you believe you have been unfairly dismissed from your job, call our team today to get quick and accurate advice.

Dan is a senior lawyer with Adams & Partners Lawyers, focusing on Personal Injury, Workers' Compensation, and Employment Law matters.

About Dan Wilkinson

Dan is a senior lawyer with Adams & Partners Lawyers, focusing on Personal Injury, Workers' Compensation, and Employment Law matters.