If you consider that your employment has been wrongly terminated, you have only 21 days from the date of the dismissal to lodge a claim for Unfair Dismissal or breach of the General Protections, so time is of the essence.
Unfair Dismissal
What is unfair dismissal?
The Fair Work Act 2009 (Cth) defines the dismissal as unfair if it was done in a manner that was “harsh, unjust or unreasonable”, not consistent with the Small Business Fair Dismissal Code and not a case of genuine redundancy.
The examples given by the Fair Work Commission of unfair dismissal include:
- Harsh: where the employer takes an extreme response to the situation, or the dismissal has a disproportionate impact on your economic and personal situation.
- Unjust: where you are not guilty of the action or behaviour which the employer has used as the reason to dismiss you.
- Unreasonable: where the evidence does not support the employer’s decision to dismiss your employment.
What remedies are available to me?
The Unfair Dismissal laws do not protect all employees. To be eligible to make an Unfair Dismissal claim, you must have:
- been employed by a national system employer (in NSW, this excludes State and Local Government employees), AND
- for at least 6 months (or 12 months for small businesses), AND
- earn less than the high-income threshold (though there are some exceptions), AND
- if you are a casual, work on a regular and systematic basis with a reasonable expectation that would continue.
If you are eligible to make a claim for Unfair Dismissal the first step is to try to negotiate settlement options with your employer by way of Conciliation. The remedies which you can ask for include:
- Reinstatement of your job: unless the business no longer operates, you cannot work because of illness or injury, you cannot work with your employer because the relationship has broken down or it is likely your employer will dismiss you again.
- Compensation for lost income: there is a complex formula which is used to determine the amount of compensation you should be paid. The median compensation for unfair dismissal claims, according to the Fair Work Commission, is 5-7 weeks of your standard rate of pay. The maximum compensation which can be ordered is the lower of 6 months at your ordinary rate of pay or $87,500 (at 1 July 2024 – this compensation cap amount changes on 1 July each year).
Importantly, in a negotiated settlement, you can seek additional actions which the Commission has no power to order, such as an apology or provision of a positive reference.
The amount of compensation you can receive is affected by whether you have taken steps to obtain new employment as well as any misconduct by you which lead to the dismissal.
If you are unable to negotiate a settlement with your employer, the matter will proceed to a Hearing at the Fair Work Commission, which will make a decision on your case and provide reasons.
What are the advantages and disadvantages of lodging an unfair dismissal claim?
While lodging a claim for Unfair Dismissal with the Commission is more cost-effective and faster than pursuing a General Protections claim, there are eligibility criteria. The Commission is a no-costs jurisdiction, meaning that each party will have to pay their own legal costs. In addition, the usual amount agreed or ordered to be paid is around 5 – 7 weeks of wages.
General Protections
What is dismissal under the general protections?
The general protections laws protect employees from harmful (adverse) action, coercion, undue influence or pressure and misrepresentation by their employer where they affect workplace rights. Adverse action can be somewhat less than dismissal, such as demotion or being overlooked for promotion, however often involves dismissal where the basis for such action is a prohibited reason under the law. Sections 340 to 358 of the Fair Work Act 2009 (Cth) sets out a list of the prohibited reasons. Some include:
- because you used your workplace rights (taking leave);
- because of your age, sex, disability or another discriminatory reason; or
- because you were away from work sick or injured.
Importantly, for a General Protections claim to be successful, the adverse action against an employee must be taken ‘because of’ a proscribed reason. It is not enough that a proscribed reason also existed, it must be the reason for the dismissal.
What remedies are available to me?
If a General Protections Application is lodged, the parties will be directed to try to negotiate their own settlement agreement to resolve the issue at a Conciliation before proceeding to arbitration or presenting the case in the Federal Court.
Similarly to Unfair Dismissal, a negotiated settlement provides you with certainty and the ability to include additional actions, which the Court or Commission does not have the power to order.
What are the advantages and disadvantages of lodging a general protections claim?
General Protections claims can be more difficult to prove than Unfair Dismissal and are only relevant in certain circumstances.
While there is no limit on the compensation which can be awarded under a General Protections claim, according to the Fair Work Commission in “more than 40% of agreements, the average compensation is less than $4,000. It is less than $10,000 in 75% of cases”. It is also important to keep in mind that the Fair Work Commission is a no-costs jurisdiction. If you were to argue your case before the Commission, you will more than likely have to bear your own costs of doing so.
If your employment has been recently terminated and you are unsure whether you may have a claim against your employer, please get in touch with the team at Cheney Suthers as soon as possible. We can assist you in assessing and lodging your claim within the time limits and negotiating an outcome with your employer on your behalf.
