Unfair dismissal claims can be brought where a terminated employee forms the view that their termination was harsh, unjust or unreasonable.
Generally, an employee will be eligible to bring a claim if they meet the following criteria:
- They are paid below the high-income threshold (presently $142,000.00);
- They have been employed for at least 6 months (or 12 months for an employer with fewer than 15 employees);
- They have commenced the claim within 21 days following the date of dismissal.
Once unfair dismissal proceedings are commenced, the first thing that will happen is a conciliation conference. This is a telephone conference mediated by an officer of the Fair Work Commission, during which parties will be encouraged to resolve their differences. This is a quick and cheap process, and generally results in the settlement of the claim.
If conciliation fails, the matter is then listed for a hearing. Typically, this happens quite quickly- unlike standard court proceedings, an applicant can expect to have an adjudicated outcome within a few months of bringing a claim.
At hearing, a Fair Work Commissioner will consider whether the termination was unfair. There is no limit to the factors which can be taken into account in this regard, however the following matters are required to be considered (among others):
- 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); and
- Whether the person was notified of that reason; and
- Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
- If the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal.
If the Commissioner forms the view that the employee was unfairly dismissed, the following orders can be made:
- Compensation up to the equivalent of 6 months pay;
- Reinstatement into the role and backpay for the period of time in which the employee was out of work.
We have been running and defending unfair dismissal claims for as long as they have existed in their current form. If you think you have been unfairly dismissed, or if you are faced with an unfair dismissal claim from a former employee, we can take the reins and deal with the matter for you efficiently and for a reasonable and proportionate cost.