By Mark Cox, Director and Joanna Knoth, Senior Associate
As an employer, dealing with misconduct or under-performing employees is complex and fraught with legal and financial dangers. As an employee, being unfairly dismissed can be distressing and damaging to your reputation and financial security.
Dealing with an unfair dismissal claim requires an understanding of the complexity of employment law, compliance with relevant industrial and employment laws, and how each determines the eligibility of your claim or defence. Whatever side you are on, it is important to get legal advice from a specialist employment law firm as soon as possible.
Making an Unfair Dismissal Claim
Unfair dismissal refers to situations where an employee’s dismissal is harsh, unjust or unreasonable, either in the reasons for dismissal or the procedure leading to dismissal.
There are state and national laws that deal with unfair dismissal and each has its own tribunal or industrial commission. The national workplace relations tribunal is the Fair Work Commission, while the state tribunal in WA is the Western Australian Industrial Relations Commission.
Generally speaking, employees are not covered by the national system if they are employed by:
- The WA government and some local councils
- Australian corporations whose main activities fall outside of trade and finance
- A foreign corporation
- Sole traders, unincorporated partnerships and some trust arrangements
It can be difficult to know which law applies to your situation and what your rights and obligations are.
Both tribunals have rules about who can and cannot bring an unfair dismissal claim. For example, how much an employee earns or their completion of a qualification period may affect their right to bring a claim. An experienced workplace lawyer can help you determine which laws are relevant and whether there would be jurisdictional objections to the claim. They can also inform you whether anything that is considered unlawful has occurred and the chance of success for your claim or defence.
If an employee works for a business other than those listed above, such as a constitutional corporate engaged in a significant amount of trading or financial activity, their claim falls under the national system. This is governed by the Fair Work Act 2009. In order to make an unfair dismissal claim, the employee must:
- Be covered by a modern award, or
- Be subject to an enterprise agreement, or
- Have a salary that doesn’t exceed a defined maximum threshold, and
- Have been employed for longer than 12 months if the business has fewer than 15 employees, or 6 months in other cases
An unfair dismissal claim can’t be made where the dismissal was a genuine redundancy. This covers situations where:
- The employer no longer required the job to be performed because of operational changes
- It was not reasonable to be redeployed in another area of the business; and
- The employer has consulted and complied with all obligations relating to a modern award or enterprise agreement.
If an employee is excluded from making an unfair dismissal claim, there may be other legal options available, including claims in:
- Unlawful termination (dismissed due to discrimination)
- Breach of contract
- Equal opportunity or anti-discrimination
- General protections disputes (national law)
General protections disputes are unique as they cover both dismissals and disputes where the employee was not dismissed. Non-dismissal disputes deal with discrimination, freedom of association and the ability to exercise or not exercise workplace rights.
General protections dismissal disputes begin with the parties attending a conciliation conference at the Fair Work Commission in an attempt to settle the claim before the case can be heard by a court.
Strict time limits apply to making an unfair dismissal claim. For employees that fall under national law, they have 21 days from the date of dismissal to make a claim. For employees under state law, they have 28 days from the date of dismissal. This time can only be extended in exceptional circumstances.
Given the complexity of the law in this area and the very short time limits involved, it is vital to seek legal advice and act as soon as possible, whether you are an employee who has just been dismissed, or an employer who has had an unfair dismissal claim brought against you. An experienced employment law firm can help save costs, thoroughly evaluate the merits of a case and help you act in a timely manner.
Contact our specialist employment law firm on 08 9288 4000 if you need legal advice or assistance with an unfair dismissal case in Australia. Our workplace lawyers have extensive experience in providing HR legal advice. In the first instance, we provide a no obligation initial consultation by phone, to ascertain how we can assist you under our retainer or fixed fee arrangements. We are able to settle most matters before they proceed to trial or arbitration, and we have a high degree of success with those matters that do proceed to judgment.