Unfair Dismissal Solicitors - Litigation Lawyers Australia

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Legislation applying to any Australian concerning an unfair dismissal and the possible claim is enclosed within the Fair Work Act 2009 (FWAct) which has been effective since 2010. Australia’s employment system is one of world’s most complex, although recent consolidations of statutes in this and other Acts have clarified the process some by ensuring these acts take precedence over state and territorial legislation. The FWAct addresses most uncertainties within employment frameworks dealing with employers and employees, such as the minimum months employed and number of employed personnel within the firm, salary caps used to determine eligibility for recompense, what acts by the employer are considered unfair or discriminatory, and were those actions taken unfair or too harsh, were those unlawful or legal and provides time-frames to those terminated employee to take action and make application for reinstatement or compensation after review by the Fair Work Commission (FWC). There are additional codes which apply to a small business with 15 employees or less that must be observed. A terminated employee would be well-advised to consult an expert unfair dismissal solicitor immediately after termination, so that they do not miss an opportunity for relief or compensation.

Wrongful Dismissal

Our unfair dismissal solicitors attend to all matters related to an unlawful employment termination. Australian law classified wrongful dismissal in the FWAct as unlawful or unfair:

Unfair Dismissal: the unlawful action of terminating someone’s employment that is unreasonable, unjust, or harsh. This might also apply in a constructive dismissal case, which occurs wherein the employer’s behaviour was inconsistent with fair employment to such a magnitude that the employee had no alternative but to terminate their employment. An application to the Fair Work Commission for reinstatement or compensation is justified in a case of unfair dismissal.

Unlawful Dismissal: the unlawful action which happens when an employee was terminated from employment based on the unacceptable reasons which are outlined by the Workplace Relations Act 2006, which include the decisions dependant upon membership in a trade union, pregnancy, family responsibilities, marital status, or their temporary absence due to an illness, or for discriminatory practices such as age, gender, nationality, or race. An application by a solicitor to the Fair Work Commission for reinstatement or compensation is justified in a case of unlawful dismissal.

Fair Work Act 2009

Unfairly terminated employees now have good news in the FWAct. Many compensation levels have been raised for those that qualify and qualification now applies to significantly more firms than previously considered. Nonetheless, compensation can only be ordered if reinstatement is not a possibility, or it is not feasible. A terminated employee might expect the commission to review a claim for compensation when re-instatement is not possible, if the qualifications have been met and the application to the FWC was made within a period of 14 days after dismissal. In determining damages, issues related to the employee’s duties within a company or corporation, in conjunction with their seniority might bear consideration according to an interpretation of legislation by the commission. This could be disadvantageous to executives, who could have possibly made some of the decisions that resulted in employment terminations, and in some cases even their own.  

Qualification Criteria

The following qualification benchmarks apply to both damage awards and reinstatement regarding unfair dismissals is further explained in the FWAct. A former employee is eligible for review if they satisfied these fundamental criteria:

  • a confirmed redundancy cannot have been the reason for dismissal
  • minimum time of employment must be 6 months for firms with more 15 employees
  • minimum time of employment must be employment must be 12 months in those firms with 15 or less
  • determination of an unjust, harsh, or unreasonable dismissal
  • the Small Business Fair Dismissal Code must be complied with
  • the current wages cannot at the time of dismissal must not top the Act’s salary cap

Employment Lawyers

Our expert solicitors are thoroughly familiar with the conditions for unfair dismissal claims and handle conciliations with employers and can assist with the application for review to the FWC.  They frequently give advice in regards to common law concerning employment rights, as well as the terms and conditions of employment as they pertain to unlawful dismissals. The review must consider any failure by the employer’s part that did not strictly adhere to statutes contained in the Workplace Relations Act 2006 and includes any decisions made based in any manner on an employee’s non-membership or trade union membership, their family responsibilities, or marital status, pregnancy, or any temporary illness that resulted in missed work, and those based on prejudices that result in discrimination of gender, age, nationality, race, or ethnic origin. In the event you require employment advice, complete our contact form, call our helpline or send us an email.

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