Being terminated or dismissed from employment is stressful. Being without an income, looking for a new job, being frustrated or angered by their dismissal, and other factors typically cloud the minds of people recently dismissed. These stressful times can lead to employees trying to get their lives back on track before they deal with their dismissal, and where employment laws impose strict timelines on taking action, the time to lodge a claim can often be missed. This article will briefly explain the start date for deadlines, the different kinds of claims that may arise from dismissal, and how long employees have to take action for each.
As explored below, in the event of a dismissal, strict time frames apply, whether 21 days, several months, or years. It is important that employees are aware on what day these timeframes pass, as once the date to lodge a claim has passed, the right to file a claim is lost.
The timeframe to lodge a claim begins on the day of dismissal. The day of dismissal is ‘day 0’ where the following day will be ‘day 1’. For example, if an employee is terminated on Monday the 1st, 21 days from this day for the purpose of the Fair Work Act 2009 (Cth) will be Monday the 22nd.
The most common claim employees wish to bring is an unfair dismissal claim. An unfair dismissal occurs when a dismissal is considered ‘harsh, unjust, or unreasonable’. This includes considering factors such as whether there was a valid reason for dismissal, whether the employee had an opportunity to respond to the reason for dismissal, whether the employee was given an opportunity to improve, and whether the dismissal was procedurally fair. If the employee was not afforded these, then their dismissal may be unfair.
Employees have 21 days from the date of dismissal to bring an unfair dismissal claim.
A general protections claim is less commonly known by employees. This claim can arise if an employee exercises ‘workplace rights’ (that is a right under an industrial instrument such as an Award, make complaints, or make enquiries regarding their employment) or if an employee holds a protected attribute (such as membership of a trade union/involvement in industrial activities, the subject of domestic violence, or attributes covered by discrimination categories below). In the event an employer dismisses someone because they exercised workplace rights or because they hold a protected attribute, then their dismissal may be in contravention of general protections provisions.
Employees have 21 days from the date of dismissal to bring a general protections claim.
A discrimination claim may arise if an employee is treated less favourably because they hold a protected attribute. Less favourable treatment includes being dismissed. Protected attributes include sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, and association with, or relation to, a person identified on the basis of any of the above attributes.
Under the Queensland legislation, employees have 1 year from the date they are treated less favourably to bring a claim for discrimination.
Under the Commonwealth legislation, employees have 6 months to bring a claim for discrimination. While claims may be brought within 1 year of the contravention, claims brought after 6 months may be dismissed by the Commission.
Breach of Contract
A breach of contract claim, as the name may suggest, is a claim that an employer has not followed correct procedure or terms under contract and has therefore ‘breached’ those terms. Typically in dismissals, if an employer has not correctly followed notice or termination provisions, a claim may arise.
Employees have 6 years from the date of the alleged breach to bring a claim under contract.
It is important that employees are able to quickly identify if they wish to take action in relation to their dismissal, as any delay may impact their rights and what claim they are able to bring. If you have been recently dismissed, Saines Legal’s expert lawyers can assist you in assessing whether you may have a claim.
Saines Legal is a full-service employment law firm available to provide tailored advice and guidance in relation to any workplace issues. Do not hesitate to contact us via firstname.lastname@example.org or (07) 3324 1055, to organise a consultation.
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.