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Termination of Employment
If you have been dismissed you may have a claim against your employer if your employer has breached your contract of employment or broken the law in dismissing you.
If your employer has broken the law in dismissing you, you may be able to make a claim under the Fair Work Act (Cth) 2009.
There are three types of dismissal claims – unfair dismissal, unlawful termination and general protections dismissal – with the most common being an ‘unfair dismissal’ claim.
Trust Berrigan Doube Lawyers for unfair dismissal cases with our “no win, no fee” commitment. Our expert team of unfair dismissal lawyers in Melbourne, Sydney, and Brisbane offers dedicated legal support to protect your rights.
Am I eligible to make an unfair dismissal claim?
In order to make a claim, you must fall within the scope of the Fair Work Act (Cth) 2009 which means that you must:
- Be covered by a modern award;
- Be subject to an enterprise agreement; or
- Have a salary that does not exceed the maximum income threshold (currently $145,400.00 as at 1 January 2019, though subject to change).
You must also be an employee who has been employed for more than 6 months, or more than 12 months if your employer has fewer than 15 employees.
Our lawyers can assist you in determining whether your employment is covered by a modern award or under the maximum income threshold as a result of your salary package structure.
If, at the time you were dismissed, your employee employed fewer than 15 people (including yourself) then the rules governing unfair dismissal are different. Your employer must have complied with the Small Business Fair Dismissal Code. If the Code has been complied with, you are excluded from making an unfair dismissal claim.
If your employer claims that you were dismissed because of redundancy and the Fair Work Commission finds that your dismissal was a case of genuine redundancy, you are similarly not able to bring a claim for unfair dismissal. A dismissal will be a case of genuine redundancy if :
- Your employer no longer required your job to be performed because of operational changes; and
- Your employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
A dismissal will not be a case of genuine redundancy if either of the above conditions are not met. Similarly, a dismissal will also not be a case of genuine redundancy if it would have been reasonable for the person to be redeployed within the employer’s business.
Our unfair dismissal lawyers in Sydney, Melbourne or Brisbane can assist you in determining whether you are eligible to make an application for unfair dismissal or if the redundancy is likely to be a genuine redundancy.
What if I resigned from employment?
If you have been forced to resign (also known as a ‘constructive dismissal’), you may still be eligible to bring an unfair dismissal claim. A constructive dismissal occurs where a person has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
It is not advisable to resign from your employment prior to speaking with an unfair dismissal lawyer as your resignation will have an effect on your unfair dismissal claim.
If you have been constructively dismissed, please contact our unfair dismissal lawyers in Sydney, Brisbane or Melbourne for assistance.
Don’t delay – strict time limits apply to Fair Work matters
An employee has only 21 days after the date of the dismissal to make a claim for unfair dismissal. Only in very exceptional circumstances can this time be extended. It is vital to see an unfair dismissal lawyer as soon as possible after your dismissal takes place.
Our unfair dismissal lawyers in Sydney, Melbourne and Brisbane can provide you with an assessment of your case considering these criteria before lodging an unfair dismissal claim for you.
Is my dismissal unfair?
The Fair Work Act (Cth) 2009 lays down the considerations in deciding if a dismissal was unfair. In making their determination, the Fair Work Commission will consider:
- Whether there was a valid reason for the dismissal;
- Whether you were notified of that reason;
- Whether you were able to respond to the reasons given for your dismissal;
- Whether your employer was unreasonable in refusing you a support person;
- If your dismissal related to poor performance, whether you had received previous warnings about this;
- The impact of the size of the business in carrying out the dismissal;
- Whether your employer had human resources support in carrying out the dismissal; and
- Any other matters that the Fair Work Commission considers relevant.
What if my claim is successful?
If your unfair dismissal claim is successful you may be reinstated to your job, or awarded compensation not exceeding 26 weeks pay.
In making an award of compensation for unfair dismissal, the Fair Work Commission will consider the circumstances of the dismissal, including any contribution you may have had to your dismissal and any success you have had in returning to the workforce. The Fair Work Commission will also consider any previous payments that the employer provided in relation to the dismissal.
There is no remedy available for shock, distress or humiliation caused to you by the unfair dismissal.
What if my claim is unsuccessful?
If your unfair dismissal claim is unsuccessful, you will not ordinarily suffer any adverse consequence in relation to the employer’s legal costs of defending the application. In some extreme and unlikely circumstances, costs have been award where the application was frivolous, vexatious or made without reasonable cause or had no reasonable prospect of success.
It is important that you seek legal advice prior to lodging a claim with the Fair Work Commission. Our unfair dismissal lawyers in Sydney, Melbourne and Brisbane can provide you with an assessment of your case.
What is the difference between unfair dismissal claims and unlawful termination and general protections claims?
Employees who are ineligible to make an unfair dismissal claim may be able to make an unlawful termination claim or general protections claim. Unlawful termination and general protections claims do not consider whether a dismissal was harsh, unjust or unreasonable, but instead consider whether the reason for the termination was unlawful.
A dismissal will be unlawful if you were dismissed from your employment because of your:
- Race
- Colour
- Sex
- Sexual orientation
- Age
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Pregnancy
- Religion
- Political opinion
- National extraction
- Social origin
A dismissal will also be unlawful if you were dismissed from your employment due to any of the following reasons:
- You were temporarily out of the workforce because you were sick or injured
- You joined or did not join a trade union or participated in industrial activities
- You exercised, or proposed to exercise, a workplace right (for example, by making a complaint or enquiry in relation to your employment, such as querying a pay rate)
An unlawful termination or general protections claim relating to dismissal must also be made within 21 days from the date of termination.
Why should I engage Berrigan Doube Lawyers?
Berrigan Doube Lawyers is a boutique law firm with offices in Sydney, Melbourne and Brisbane. We have extensive experience assisting employees with unfair dismissal, unlawful termination and general protections dismissal claims.
We are a panel law firm for the Fair Work Commission Referral Service, reflecting our experience and capability in this area of employment law. Our employment lawyers have particular expertise in Fair Work Commission matters, including unfair dismissal claims and general protections claims. We advise clients on their eligibility to bring a claim, the strength of their case, settlement prospects, and the process involved in Fair Work Commission proceedings.
No Win, No Fee
One significant point of difference between Berrigan Doube Lawyers and other law firms is that we will ordinarily assess and, where appropriate, act in dismissal matters on a “no win, no fee” basis. This means eligible clients can pursue their claim without being required to pay legal fees upfront.
We are able to offer this service because we have a dedicated team of employment lawyers who regularly act in dismissal claims across our Sydney, Melbourne and Brisbane offices. Our experience with Fair Work Commission matters allows us to provide clear, practical and strategic advice from the outset.
If you believe you have been unfairly dismissed, unlawfully terminated, or dismissed in breach of your general protections rights, you should contact our employment lawyers immediately. Strict time limits apply. In most cases, you only have 21 days from the date your dismissal takes effect to make a claim.