Introduction

All employment relationships eventually come to an end. Sometimes, the end of the relationship is amicable; other times, it is not. An unfair dismissal occurs when an employer dismisses an employee in circumstances that are harsh, unjust, or unreasonable.

This blog post will discuss what to do if you believe you have been unfairly dismissed.

Step 1: Check your eligibility

There is a relatively long list of conditions that must be met for a person to be eligible to make an unfair dismissal claim to the Fair Work Commission. You must meet each of the following criteria:

1. You need to have been an employee (not a contractor operating with an ABN).
2. If you are in Western Australia, your employer must generally be a corporate entity (e.g. a pty ltd company) or a department of the Commonwealth.
3. You need to have been employed for:
   • if your employer had less than 15 employees: at least 12 months;
   • if your employer had 15 or more employees: at least 6 months.
   • Note: In calculating your time employed, time as a casual does not ordinarily count unless you were a regular casual.
4. At least one of the following three criteria must be met:
   • a modern award applied to your employment;
   • an enterprise agreement applied to your employment; or
   • your annual pay was less than the high income threshold ($167,500 as at 1 July 2023).
5. Your employer dismissed you from your employment.
6. The dismissal was not a case of genuine redundancy.

Step 2: Be aware of the time limits

There are strict time limits for making any claim relating to dismissal. Unfair dismissal claims are no exception. If you want to make an unfair dismissal application against your employer, you must lodge your claim with the Fair Work Commission within 21 days of your dismissal taking effect. This is important. If you do not apply within that time, you will not be able to make a claim.

Step 3: Consider why you believe your dismissal was unfair

You will need to be able to explain to the Fair Work Commission why you believe your dismissal was harsh, unjust, or unreasonable.

A dismissal may be:

• unjust because you were not guilty of the alleged misconduct;
• unreasonable because the evidence or material before your employer did not support a finding that you engaged in misconduct;
• harsh because the outcome is disproportionate to the gravity of the misconduct – or because the dismissal would cause significant personal or economic damage to you.

Whatever your argument might be, you will need evidence to prove to the Fair Work Commission that your dismissal was unfair.

Step 4: Complete the unfair dismissal application form

The unfair dismissal application form can be found on the Fair Work Commission’s website: www.fwc.gov.au

You will need to fill out the unfair dismissal application form and file it with the Fair Work Commission. Again, this has to happen within 21 days of your dismissal. The Fair Work Commission will then contact you for payment of the filing fee.

Closing remarks

The unfair dismissal process can be complicated and daunting. If you need any assistance, please do not hesitate to contact Fogliani Lawyers for legal advice and representation.