Welcome to Unfair Dismissal Lawyers
We are Australian Employment Lawyers that practice solely in Unfair Dismissal, Unlawful Dismissal or Wrongful Termination. Unfair Dismissal Lawyers act to defend employers and employee rights.
Unfair Dismissal Laws Overview
Nearly all Australian employees and employers are covered by Unfair Dismissal Laws contained in the Fair Work Act. More specifically part 3.2 of the Fair Work Act covers Unfair Dismissal. However other section of the Fair Work Act may apply including Unlawful Dismissals, such as Adverse Action or Discrimination. Additionally, if you are not protected by the Fair Work Act, you may consider a claim in common law or under other statutes.
What is Unfair Dismissal?
Unfair Dismissal is termination of an employees employment without a valid reason that is harsh, unjust or unreasonable and if applicable not in accordance with the Small Business Fair Dismissal Code. The dismissal must not be a genuine redundancy and whether the dismissal is harsh, unjust or unreasonable depends on numerous factors.
What if I resigned?
Under the Fair Work Act 2009 your employment must be dismissed, that means it has to be terminated at the initiative of the employer. However, if you have resigned due to your employers’ conduct, you may still be able to make a claim for Unfair Dismissal, this is known as a constructive dismissal.
Who can make an Unfair Dismissal claim?
To make an application for an unfair dismissal remedy, you must have been employed for the minimum amount of time. The minimum amount of time depends on how your employer is classified if they aren’t a small business employer than you must be employed for a minimum of 6 months, if they are a small business employer than the minimum amount of time is 12 months.
Additionally, you must be covered by an award, enterprise bargaining agreement or your earnings are less than the high-income threshold. If you don’t meet these requirements you still may be eligible to make a claim for Unlawful Dismissal or Wrongful Termination.
What is the remedy for Unfair Dismissal?
The remedy for Unfair Dismissal is either reinstatement or compensation (s390-393).
Reinstatement should be considered before compensation and can include a claim for lost wages. Reinstatement must be to the same position or another position that has similar terms (s391(1)).
If reinstatement is not appropriate, then payment of compensation shall be awarded (s390(3)). There are several factors the Fair Work Commission must take into account when determining the amount of compensation. Compensation for Unfair Dismissal is also capped.