The FWC is the government agency liable for labor laws. It was established to oversee the majority of workplace issues, such as unfair dismissal.
If you believe you have been wrongly fired by your company, you may challenge your discharge or administrative action by your employer’s disciplinary or dismissal processes. If neither of these options works, you can apply to the Fair Work Commission (FWC).
When a jury considers an application for wrongful discharge, they may apply procedural tests. Unfair dismissal may occur for purposes other than those stated by the employer. For instance, it could be unjust if your boss failed to obey the correct procedure for disciplining and terminating you.
Additionally, the tribunal may clarify why you are legally entitled to bring an unfair dismissal lawsuit since only workers can do so.
What are Unfair Dismissal Laws in Australia?
Unfair dismissal is a complicated field of labor law, but it is one that any workplace should be familiar with. If you violate the laws governing job dismissal, you face being taken before an Employment Tribunal and ordered to pay compensation.
Suppose your employer has wrongly fired or sacked you, or you have been compelled to leave as a result of what your employer has done. In that case, you will be entitled to submit an appeal to the Fair Work Commission for reconsideration (regaining your job) or reimbursement. This is referred to as an unjust firing charge.
Your dismissal could be deemed unjustifiable if:
You were terminated, and your termination was cruel, unfair, or unreasonable; your termination was not due to actual redundancy; and, if you worked for a small company, your termination was inconsistent with the Small Company Fair Dismissal Code.
It is critical to understand that perhaps the Tribunal will not conduct an investigation into the conditions surrounding the termination. Suppose you file a wrongful discharge lawsuit and the Commission has a hearing. In that case, you may give facts to the Commission demonstrating that the dismissal was unjust.
Only a Committee Member has the authority to determine if your firing was justified. Still, we recommend you read this to get a better understanding of unfair dismissals and their repercussions.
Are You Allowed to Apply Due to Unfair Dismissal?
Almost all Australian workers are shielded from wrongful dismissal under the federal fair work policy. Suppose the boss was a corporation or other incorporated entity. In that case, you are probably shielded against wrongful firing under the 2009 Fair Work Act. Suppose your boss was a sole trader and you worked in Western Australia. In that case, you are probably shielded from wrongful dismissal under the Western Australian Industrial Relations Act 1979. An unfair dismissal can result in reinstatement and reimbursement.
Five eligibility requirements, dubbed jurisdictional aspects by attorneys, are used in the national fair work framework.
- You must have been fired or constructively discharged while working with the business.
- You must have worked for a “national structure employer,” which is described as a business or other corporate organization engaged in a trade or a federal government institution. Local governments and not-for-profit organizations can be classified under either scheme based on the scope of their business operations.
- Your gross remuneration legally referred to as the “annual cost of earnings,” should be less than the “high-income threshold,” which would be $153,600 on 1 July 2020 (this amount will raise annually on 1 July). Otherwise, your work is covered by an enterprise arrangement or modern award.
- You have worked for nearly the full qualification time of 12 months if you work for a small company or 6 months if you work for a non-small business.
- You must file a wrongful firing complaint with the Fair Work Commission within 21 days of your termination.
Naturally, you should seek competent legal counsel as quickly as possible after a firing, as each of the above simple credentials has several levels of legal sophistication.
In Western Australia’s scheme, additional qualifications apply. Probation, for example, is significant in the State policy though not in the federal fair wage policy, and the State system uses the term “prescribed amount” rather than “high-income threshold.” The applicable time limits are therefore different, while the possible solutions are mostly identical.
What is Automatic Unfair Dismissal?
Automatic unfair dismissal is a concept that refers to instances in which an individual is fired for a cause that is covered by the law. Among the types of dismissals that are automatically unequal are those involving asserting a constitutional right, parental/adoption leave, requesting payment of the minimum wage, maternity/paternity leave, pregnancy, participating in a labor union, operations allowing a protected disclosure, etc.
If an individual were dismissed for one or more of these reasons, the dismissal would be immediately deemed unfair. The distinction between an automatic unfair dismissal and an unfair dismissal is that the latter applies to all workers regardless of work duration.
Repercussions of an Automatic Unfair Dismissal
Suppose an employment tribunal ruled that dismissal was automatically unfair. In that case, the company cannot defend the allegation, and the employee is automatically effective with their unfair dismissal claim. Additionally, the employer will be required to reinstate the employee (return them to their previous position) or re-hire them in a new position and offer compensation.
Appropriate Termination Protocols
There are proper and improper forms to terminate an employee. The majority of employers would exercise caution in this region, as they do not wish to be on the receiving end of an employment tribunal decision.
The critical factor is that your boss adheres to a systematic and fair policy. This is almost always included in the work contract or employee handbook. Typical protocols will involve informal alerts, recorded attempts to remedy the situation, an incentive for you to justify yourself, and final written notices prior to dismissal.
Your boss must have sent you a fair explanation of the issue and therefore undertaken a sincere effort to remedy it in accordance with current procedures, in the view of a tribunal. They cannot, for instance, apply one set of rules to you and another to someone else. The sole difference occurs in the event of ‘gross incompetence,’ in which case the boss is within his authority to terminate your employment immediately and without notice.
What to Do if You Are a Survivor of Unfair Dismissal?
If you choose to proceed to a trial, you must establish that you were fired wrongly, and the boss must establish the contrary. You will need legal guidance, which the Labor Union may obtain, or an employment lawyer.
Your employer’s defense should include the following:
- They must explain that they adhered to the correct protocol.
- They must explain why you have not been handled differently.
- They must prove that you were already informed of all business laws.
You should only go before a court if you have met the company’s standard protocol and are nevertheless unhappy with the result. Since each party must establish the argument, you can maintain copies of all communications, both submitted and obtained, as well as documentation of all acts and incidents leading up to your dismissal.
Why Should You File a Lawsuit for Unfair Dismissal?
After filing an unfair dismissal lawsuit, you will be able to recover money for the loss of your career and all other damages that resulted. Alternatively, you may prefer to be recalled in the role you formerly held or re-employed in a comparable position at your former employer.
However, an allegation may also include something equally valuable to you: fairness. A wrongful firing lawsuit will successfully establish that the employer’s conduct was unreasonable and that you should not be dismissed.
Crucially, a credible wrongful discharge lawsuit will help you obtain both outcomes. Taking no measure ensures that inequality can continue to exist. Expert solicitors will assist you in obtaining the result you need.
How to File a Lawsuit for Unfair Dismissal
Remember the Fair Work Commission (FWC) manages all the labor laws and thus is an industrial relations tribunal, and they handle all the unfair dismissal-related issues.
It is highly advised that you obtain professional counsel from a qualified work attorney prior to taking further action towards a wrongful dismissal claim. They will assist you in determining the quality of your claim and provide advice about the chances of success. Suppose the argument is impossible to proceed with. In that case, it is wise to be mindful of this as soon as possible during the procedure.
Although getting legal counsel is a critical first move, you are not required to advise the attorney, or any other, to represent you throughout your situation. There is no formal provision that you have an attorney represent you in a wrongful discharge lawsuit.
Even so, employment law can be quite complex, and you can feel more secure in the prospects of success if you can focus on technical experience.
Being let off from the job is many people’s worst fear. Being fired wrongly will seem ten times worse. Along with the normal concerns of paying taxes, staying up on mortgage payments, and providing for one’s relatives, there is an additional feeling of injustice and helplessness. If this has occurred in your case, that is an inequality that you should counteract. So contact a lawyer or file a claim to the FWC if you feel you have been unfairly dismissed.
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