Unfair Dismissals

Have you been unfairly dismissed by your employer?

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In financial year 2020, there were approximately 16,500 unfair dismissal claims lodged with the Fair Work Commission.

The Fair Work Act 2009 (Cth) (“FWA”) sets out the criteria for lodging an unfair dismissal claim with the Fair Work Commission. Expertise with the FWA and understanding the unfair dismissal process are crucial elements towards achieving successful outcomes.

Whether you have been dismissed or need to respond to an unfair dismissal claim, NS8 Group will assist you with protecting your workplace rights.

We will provide you with the following:

  • Representation through the process
  • Advice, guidance, and assistance to achieve a favourable outcome
  • FIXED FEES

What we have achieved for our clients:

  •  Peace of mind
  • Stress free process
  •  Support during and after the process
  •  Compensation and or settlement

With a strict 21 day time frame to lodge an unfair dismissal claim, the need to apply for or respond to an unfair dismissal claim requires employment law expertise.

NS8 Group’s strategic model continues to place our clients in the best position to achieve successful outcomes.

If you are faced with an Unfair Dismissal, contact NS8 Group for a FREE 20-minute CONSULTATION

Definition Unfair Dismissal / Wrongful Dismissal

Under the Fair Work Act 2009 “Adverse action is taken by an employee against an employer if the employer dismisses the employee”.

Unfair
Dismissal

Dismissed in a harsh, unjust, or unreasonable manner; sacked or forced to resign? The Fair Work Act provides protection and resolutions including being reinstated or receiving compensation.

Undue Influence
or Pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to agree to, or terminate, an individual flexibility arrangement.

General
Protections

An employer cannot dismiss an employee because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Who Can and Cannot Claim Unfair Dismissal?

Most employees who are employed by incorporated companies are considered ‘national system employees’. In Victoria almost all employees are considered national system employees. These employees are able to bring an unfair dismissal claim, provided they do not meet one of the exclusions.

There are several exclusions that apply regarding when a person can make an unfair dismissal application.

Employees can bring a claim for unfair dismissal to the Fair work Commission only after completing a minimum period of continuous service with the employer.

For workers employed in businesses with less than 15 employees the minimum period is 12 months. For workers employed in businesses with 15 or more employees the minimum period is 6 months.

Fair Reasons for Dismissal

N

Theft

N

Fraud or misuse of funds

N

Illegal activity

N

Dishonesty

N

Breaking company rules

N

Harassing or disrupting other workers

N

Insubordination

N

Excessive unexcused absences

N

Poor job performance by objective measure

Reasons for Not Claiming Unfair Dismissal

M

Employees who have been employed for less than six months, unless the employer is a small business employer—in which case the period is less than 12 months.

M

Employees whose dismissals are consistent with the Small Business Fair Dismissal Code ('the code').

M

Employees who are genuinely made redundant.

M

Employees who resigned but were not forced to do so because of conduct, or a course of conduct, engaged in by the employer.

M

Employees whose annual rate of earnings is more than an amount set out in the regulations ($148,700, as of 1 July 2019). However, these employee may bring an unfair dismissal claim if a modern award covers the employee or an enterprise agreement applies to the employee’s employment.

How to Apply

Your unfair dismissal claim can go to waste if it is not lodged the right way and within the given timeframe of 21 days.
NS8 Group can lodge an unfair dismissal claim the right way, maximizing your chance of getting the compensation you deserve.

COVID-19 Unfair Dismissal Processes

If an employee loses their job because of the impacts of coronavirus, their entitlements will depend on how and why their employment ends. The Fair Work Commission has recently varied some awards because of coronavirus. Some of these changes affect employee entitlements.

If an employee is on leave or has been stood down, the usual rules about dismissal still apply (for example, rules about unfair dismissal and redundancy).

Assistance for employers

Employers find out about an unfair dismissal claim when they receive a copy of the dismissed employee’s application from the Fair Work Commission. This is often the first time the employer is aware that the employee has made a claim against them.

An employer’s initial response can range from confusion to bewilderment, because you may not be aware of how this started or what you should do next.

You cannot afford to ignore this matter – it is the start of a formal legal process and won’t just ‘go away’. Even if you believe you have done nothing wrong you still have to be involved in the process and present your arguments. If you do not participate a decision may still be made against you.

Why choose NS8 Group?

We can help. We provide expert advice to employees and employers in all matters relating to employment separation and prosecuting dismissal claims.

Call our Team today. We will help you with your workplace questions.

N

Fixed Fees.

N

Plain Speak.

N

Legal Advice

N

We take care of everything.

N

We will represent you at the conciliation conference.

Small business: Consultation requirement

Michelle Sposito v Maori Chief Hotel [2021] FWC 700 (12 February 2021)

Facts:
In July 2020 during Victoria’s second COVID-19 lockdown, the Maori Chief Hotel retrenched its chef. After 15 years of service she was advised by email and registered post. The chef filed an unfair dismissal claim in November when she discovered the hotel posted on facebook it was “looking for chefs”.

Held:
Commissioner Tanya Cirkovic said the hotel had sensible and credible reasons for the dismissal but failed to comply with its consultation obligations under the under Hospitality Award.

Remedy: 2 weeks compensation
Understanding small business and its requirements is a mandatory requirement in the Fair Work Act 2009 (Cth). NS8 Group is well acquainted with obligations for small business and has represented numerous parties with successful outcomes.

Recruitment and employment law

Galstaun v Adept Underpinner Pty Ltd [2021] NSWCATAD 75 (24 March 2021)

Facts:
In late 2019, Adept Underpinner Pty Ltd advertised for casual construction position. A 59 year old male rang the director to seek further information about the job. The Director laughed about the applicant’s age and said ” You are too old, cheers mate”.

Held:
NCAT Administrative and Equal Opportunity Division Senior Member Christa Ludlow and General Member Jennifer Newman found the candidate’s account more probable.

Remedy: $3740 compensation
Knowing when employment law obligations commence is an important facet of the employment relationship. NS8 Group is familiar with the evolving recruitment and legal hurdles that must be overcome prior to the appointment of employees, contractors and labour hire workers.

Social media and employment law

In Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157

Facts:
Mr Stutsel was a truck driver at Linfox when he made offensiove and inappropriate comments on his Facebook page about Linfox management. After an investigation, Linfox terminated Mr Stutsel’s employment.

Held:
The dismissal was unfair because Linfox did not have a social media policy in place.

Outcome: Linfox immediately introduced a social media policy into its business
As social media platforms become a prevalent communication method, there are legal boundaries that must be protected. NS8 Group has provided advice, assistance and drafted various documents to assist employers deal with a problematic area of employment law

FAQs

FAQ’s are for information purposes only and should not be relied upon as legal advice.

What makes a dismissal unfair?

When assessing whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission must take into account:

  • whether there was a valid reason for the termination which relates to the employees’ capacity or conduct;
  • whether the employee was notified of this reason;
  • whether the employee was given any opportunity to respond to that reason;
  • whether there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the termination;
  • whether the employee was warned about unsatisfactory performance prior to the termination if this was the reason for the termination;
  • the degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the termination;
  • the degree to which the absence of dedicated human resource manager specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the termination and;
  • any other matters the Commission considers relevant.
How long do most claims take?

An employee has 21 days to make a claim and the majority of claims are settled before they ever see the inside of a court room.

Employers have 7 days to respond to an unfair dismissal claim and explain why they believe the dismissal was fair andmake any objections to the application.

The unfair dismissal process has two main stages:

  1. Conciliation
  2. Arbitration

Usually, the Fair Work Commission conducts Conciliations by phone. These typically take place within 2 to 3 months of the application being lodged.

Conciliation is an informal and confidential process. It involves the Fair Work Commission acting as a mediator between the employee and employer with a view to settling the claim.

If the matter does not settle at Conciliation the claim proceeds to an Arbitration hearing at the Fair Work Commission. It can take up to several months to be allocated a hearing date.

Can a resignation be a dismissal?

A dismissal occurs when the employee’s employment is terminated at the initiative of the employer or where the employer’s conduct forces the employee or leaves the employee no reasonable option but to resign. In the second case this is called constructive dismissal.

For example, an employer may bully the employee or unnecessarily performance manage the employee setting unrealistic targets or discriminates against the employee to a point that it makes the employment relationship unworkable.

An employee who has been constructively dismissed has the same rights as an employee dismissed at the initiative of the employer.

Can Casual employees claim for unfair dismissal?

Yes, casual employees can claim for unfair dismissal if:

  • They worked on a regular and systemic basis; and
  • During the period of casual employment, the employee had an expectation of continuing employment on a regular and systemic basis; and
  • They satisfy the minimum employment periods

For example, a casual employee who works regular set days and shifts from week to week may fall within this definition.

An employee can satisfy the minimum employment period with a combination of continuous permanent employment status and regular and systemic casual employment status.

What is Procedural Fairness?

Procedural fairness is about the process used by a decision-maker to make a decision, rather than the actual decision itself. In this case the process used by the employer to decide to dismiss an employee.

Procedural fairness requires:

  • The employee being made aware of the allegations concerning his/her conduct or performance
  • The employee having an opportunity to respond or defend the allegations
  • Sufficient and appropriate evidence to support the decision
  • A lack of bias by the decision maker

This includes the decision maker having an open mind. That is, properly receiving and considering all the evidence, including the employee’s response, before making the decision

Even though an employer may have a valid reason to terminate, a lack of procedural fairness will likely make the dismissal unfair.

What is the difference between unfair dismissal and unlawful termination?
An employee who is not eligible to make a claim may still be able to make an Unlawful Termination Claim (also called a General Protections Claim). This type of claim does not look at whether the dismissal itself was unreasonable, unjust or unfair. Instead it looks at whether the reason behind the dismissal was contrary to unfair dismissal laws (unlawful).

Common situations in which a termination is deemed unlawful:

  • It occurred as a result of absence from work during maternity leave or other parental leave;
  • It occurred as a result of absence from work because of illness or injury;
  • It occurred as a result of discrimination (race, colour, sex, age, sexual preference, marital status, physical or mental disability, pregnancy, political opinion, religion, family responsibilities, social origin or national extraction);
  • It occurred as a result of trade union membership, participation in trade union activities or non membership of a trade union;
  • It occurred because the employee refused to vary, extend, terminate, sign or make an Australian Workplace Agreement (AWA); or
  • It occurred because the employee made an official complaint against their employer or as a result of participation in proceedings.
What are my options are?

Give us a call or send us a message. There is nothing to lose and you can get some well needed advice on your situation and options moving forward.