What Is Unfair Dismissal and What Can I Do About It?

If someone believes they have been unfairly terminated from work, there are various options for them if they want to challenge the validity and legality of their dismissal. 

One of the steps you can take is to file an unfair dismissal claim. There are two ways to challenge an unfair employment termination if you’re in Australia. But these are not the only things you need to understand about this. Read on as your trusted employment lawyer in Brisbane shares some helpful information on this topic:

Two Main Options for Challenging Unfair Termination

• Where there is a breach of contract, the worker can opt to commence a common-law action in a Court 
• The worker can choose to make a statutory claim for unfair dismissal on one of the State Industrial Commissions or in the Fair Work Commission

This post is going to focus on the option of bringing an unfair dismissal claim under the Fair Work Act 2009 (Cth) (FW Act) as a statutory claim is typically the fastest and most cost-effective option:

Determine If There’s Been a Dismissal

According to the FW Act, an employee will have been dismissed if:

• the employment was terminated as initiated by the employer – for example, if the employer used their power to terminate the employee;
• the employee had been “forced” to resign due to the employer’s conduct. This is also called constructive dismissal. Pressuring any employee to resign or get fired is an example of this.
• the employee has been demoted, resulting in a significant loss or reduction of their remuneration or duties

Was the Dismissal Truly Unfair?

The employee needs to satisfy the Fair Work Commission and be protected by their unfair dismissal laws. Should they be dismissed, the FWC will determine whether the said dismissal was fair or not.

The FWC will carefully examine the case to determine if the dismissal was harsh, unreasonable, or unjust. They’ll check if it was inconsistent with the Small Business Fair Dismissal Code. That said, know that there is no hard rule as to what could be considered a harsh or unjust dismissal, so the circumstances surrounding the particular case will be considered. 

What Happens If the FWC Determines That I was Unfairly Dismissed?

If the FWC finds that an employee’s dismissal was unfair or harsh, they can either:

order the employer to reinstate the employee

order the employer to compensate the employee with an amount that the FWC deems reasonable

The FWC will also have the power to order the employer to pay the employee’s costs in relation to the proceedings.

What Should I Do Next?

The Fair Work Commission offers free assistance for eligible employees, employers and officers to resolve workplace disputes. They also provide free workplace training and legislative updates.

To better understand Queensland workplace laws, it’s best to consult with a knowledgeable and accredited Brisbane employment lawyer.

Conclusion

Getting fired from your job can be a very distressing experience. It’s important to know your options if you’re planning to challenge the dismissal. At the end of the day, the best way to win your case is to be prepared and take action right away. That said, do consult with an experienced employment lawyer to know if you have a valid case, and if so, how you can proceed to win.

Saines Legal is here to provide you with the expert legal services of an experienced employment lawyer in Brisbane. Contact us today and set up an appointment so we can discuss your best course of action.