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What Is Unfair Dismissal In Sydney?
If your employment comes to an end before it legally should, or in circumstances that appear unfair or unjust, you may have a claim for unfair dismissal.
Under the Fair Work Act 2009, a national system employee who believes they have been unfairly terminated from their employment can approach the Fair Work Commission (FWC) for a remedy—either reinstatement or compensation.
Harsh, Unjust, Or Unreasonable Dismissal
The Fair Work Act 2009 (Cth) and state-based legislation set out criteria for who can make an unfair dismissal claim, and the factors that are considered in deciding when a dismissal is considered to be "harsh, unjust or unreasonable".
Situations where a claim might be successful include:
• If you have been dismissed from your employment based on allegations about your conduct that were false or incorrect
• If you have been dismissed for poor performance, but were not given clear warnings or opportunities to improve your performance
• If you were dismissed due to an injury or illness which you were still recovering from
• If you have been forced to resign by the conduct of your employer
• If your employment was terminated for redundancy but your position has been given to another person
• If you have been dismissed without being given clear a clear reason, or without being given a fair chance to respond to the reasons for dismissal.
Examples Of Unfair Dismissal
Examples, where termination was found to be an unfair dismissal, including termination due to:
• Being absent from work due to illness (including psychological illness)
• Worker being on restricted duties
• Swearing at a manager and punching a notice board
• Failing to report another employee’s dishonesty
• Fighting at work (where conduct not proven)
• Paying money to the wrong place, error of judgment
• Employee refusing to participate in training outside of working hours.
Looking at the above examples, it is important to note that sometimes the termination was found to be unfair dismissal because the employer did not have sufficient proof or did not investigate allegations thoroughly. It might have been a different question if the conduct was proven.
Am I Eligible To Make Application For Unfair Dismissal?
An employee who meets certain criteria and who believes they have been unfairly dismissed may make an application to the Fair Work Commission for an unfair dismissal remedy. In order to qualify to make an application for unfair dismissal, the employee:
• Must have been employed for more than 12 months (if the employer is a small business)
• Otherwise, must have been employed for more than 6 months
• Must have earned less than the ‘high-income threshold’ as set from time to time (currently $158,500 p.a.)
• Must lodge the application for unfair dismissal remedy within 21 days of the dismissal taking effect.
Once the application is lodged in the Fair Work Commission, the matter will be set down for conciliation by telephone. If the matter cannot be resolved, the matter usually proceeds to a hearing.
It is important to note that a strict 21-day time limit applies for unfair dismissal claims, so if you believe you have been unfairly let go, it is important to take immediate action. Talk to us now.
Unfair Dismissal vs. Unlawful Dismissal
If you are not eligible to make an unfair dismissal claim, you may still make an application under the general protections part of the Act. General protection claims do not consider whether a dismissal was "harsh, unjust or unreasonable"; instead, they consider whether the reason for the termination was unlawful.
Constructive Dismissal In Sydney
At times, you may still have the right to make an unfair dismissal claim even if you have resigned from your employment and there’s, therefore, no breach of contract. This happens because of the conduct of the employer, leaving you with no other choice but to resign.
Termination in this form is generally known as constructive dismissal. For example, constructive dismissal occurs where a person is told that unless they resign immediately, their employment will be terminated.
Hire The Best Lawyer in Sydney Who Cares About Your Needs
Facing a tough situation at work is tough, especially during a pandemic. It's important to understand your rights as an employee and other options that are available to you. It's a good idea to check with your local family law office if you have questions or concerns. Our employment lawyers are amongst some of the best in Sydney, who will take the time to listen to your concerns and work with you to determine the best way forward.
At JCL Legal, we consider your whole situation and take the time to understand your feelings and your needs. Contact us now and talk to one of the best Sydney lawyer!
sources: mcardlelegal.com.au, avlawyers.com.au, shine.com.au, slatergordon.com.au, fglaw.com.au, owenhodge.com.au
