In order to make a claim, you must fall within the scope of the Fair Work Act (Cth) 2009 which means that you must:
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 :
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.
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.
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.
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:
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.
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.
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:
A dismissal will also be unlawful if you were dismissed from your employment due to any of the following reasons:
An unlawful termination or general protections claim relating to dismissal must also be made within 21 days from the date of termination.
Berrigan Doube Lawyers is a boutique law firm with offices in Sydney, Melbourne and Brisbane. We have been helping employees in the area of unfair dismissal, unlawful termination and general protections dismissal for well over 80 years and have a formidable reputation in this field of law. Almost 100% of cases accepted by Berrigan Doube Lawyers result in either a settlement or a favourable decision from the Fair Work Commission or the Courts.
One significant point of difference between Berrigan Doube Lawyers and other law firms is that we will ordinarily take on your case and represent you at the Fair Work Commission on a “no win, no fee” basis which means that you will not be out of pocket if you choose to take action against your former employer. We are able to do this as we have a team of lawyers that work on dismissal claims on a full time basis across all of our offices and our level of expertise is unsurpassed in Australia.
If you think you have been unfairly dismissed or you would like advice about your eligibility to make an unfair dismissal claim, you should contact our employment lawyers immediately. Do not delay as you only have 21 days after the date of termination to make a claim for unfair dismissal, unlawful termination or general protections dismissal.