|
Unfair Dismissal Solicitors - Litigation Lawyers Australia
Helpline
Legislation applying to any Australian concerning an unfair dismissal and the possible claim is enclosed within the Fair Work Act 2009 (FWAct) which has been effective since 2010. Australia’s employment system is one of world’s most complex, although recent consolidations of statutes in this and other Acts have clarified the process some by ensuring these acts take precedence over state and territorial legislation. The FWAct addresses most uncertainties within employment frameworks dealing with employers and employees, such as the minimum months employed and number of employed personnel within the firm, salary caps used to determine eligibility for recompense, what acts by the employer are considered unfair or discriminatory, and were those actions taken unfair or too harsh, were those unlawful or legal and provides time-frames to those terminated employee to take action and make application for reinstatement or compensation after review by the Fair Work Commission (FWC). There are additional codes which apply to a small business with 15 employees or less that must be observed. A terminated employee would be well-advised to consult an expert unfair dismissal solicitor immediately after termination, so that they do not miss an opportunity for relief or compensation.
Wrongful Dismissal
Unfair Dismissal is outlined in the Fair Work Act 2009 (FWA) which determines that unfair dismissal occurs if the termination of employment was ‘harsh, unjust or unreasonable’. The FWA dictates a number of criteria that must be satisfied thereby limiting legal action for unfair dismissal action to a certain class of qualifying employees. The FWA does not cover discrimination, victimisation and harassment which are dealt with separately as unlawful dismissal which is distinguished from unfair dismissal.
Unlawful Dismissal for all employees including an executive is determined by the Workplace Relations Act 1996 which is wide ranging legislation that deals with wrongful dismissal based on trade union membership, family responsibilities, pregnancy, marital status, temporary absence from work due to illness and for discriminatory reasons such as gender, age and race or nationality. An executive has been the subject of unlawful dismissal if any of the following discriminatory reasons were the basis for the termination of their employment :-
- temporary absence from work because of illness or injury
- trade union membership
- trade union activities outside working hours without the employer’s consent
- trade union activities during working hours with the employer’s consent
- refusal to join a trade union
- acting as a representative of employees
- complaints about breaches of laws or regulations
- individual transitional employment agreement (ITEA) refusal
- absence due to maternity leave or parental leave
- absence for voluntary emergency management activity
- race, colour, sex, sexual preference, age, physical or mental disability, marital status,
family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
Fair Work Act 2009
Unfairly terminated employees now have good news in the FWAct. Many compensation levels have been raised for those that qualify and qualification now applies to significantly more firms than previously considered. Nonetheless, compensation can only be ordered if reinstatement is not a possibility, or it is not feasible. A terminated employee might expect the commission to review a claim for compensation when re-instatement is not possible, if the qualifications have been met and the application to the FWC was made within a period of 14 days after dismissal. In determining damages, issues related to the employee’s duties within a company or corporation, in conjunction with their seniority might bear consideration according to an interpretation of legislation by the commission. This could be disadvantageous to executives, who could have possibly made some of the decisions that resulted in employment terminations, and in some cases even their own.
Qualification Criteria
The following qualification benchmarks apply to both damage awards and reinstatement regarding unfair dismissals is further explained in the FWAct. A former employee is eligible for review if they satisfied these fundamental criteria:
- a confirmed redundancy cannot have been the reason for dismissal
- minimum time of employment must be 6 months for firms with more 15 employees
- minimum time of employment must be employment must be 12 months in those firms with 15 or less
- determination of an unjust, harsh, or unreasonable dismissal
- the Small Business Fair Dismissal Code must be complied with
- the current wages cannot at the time of dismissal must not top the Act’s salary cap
Available Remedies
Remedies available under an FWA unfair dismissal compensation claim include reinstatement and damages provided that the applicant was a protected employee, that there was an unfair dismissal and that application is made to the FWA within 14 days of dismissal.
Awards of compensation are only appropriate if reinstatement is not a reasonable option and FWA will consider the following issues in awarding damages as a result of a successful unfair dismissal compensation claim :-
- effect of an award on the viability of the employers business
- length of service with the employer
- applicants remuneration
- employee mitigatation of loss since dismissal
- remuneration from other employment to date of order
- likely income between making the order and payment
- any other relevant matters
Employment Solicitors
Our expert employment solicitors are thoroughly familiar with the conditions for unfair dismissal claims and handle conciliations with employers and can assist with the application for review to the FWC. They frequently give advice in regards to common law concerning employment rights, as well as the terms and conditions of employment as they pertain to unlawful dismissals. The review must consider any failure by the employer’s part that did not strictly adhere to statutes contained in the Workplace Relations Act 2006 and includes any decisions made based in any manner on an employee’s non-membership or trade union membership, their family responsibilities, or marital status, pregnancy, or any temporary illness that resulted in missed work, and those based on prejudices that result in discrimination of gender, age, nationality, race, or ethnic origin. In the event you require employment advice, complete our contact form, call our helpline or send us an email.
Helpline
|
Contact
|