Unfair Dismissal

What is an Unfair Dismissal?

A dismissal is unfair if you have been dismissed or feel like you were forced to resign, and the dismissal or forced resignation was harsh, unjust or unreasonable.

A dismissal or forced resignation may be harsh, unjust or unreasonable if, for example:

1. 1. 1. there is not a valid reason for the dismissal relating to your conduct or capacity;
      2. you were not adequately notified of the reason for termination;
      3. you were not given an adequate opportunity to respond to any reasons related to your conduct or capacity;
      4. a request for a support person to be present at a meeting was unreasonably refused; and
      5. the termination related to unsatisfactory performance, that you were not adequately warned.

Do you feel that you been unfairly terminated?

It can be difficult if the termination came as a shock, and you were not prepared to be unemployed.  Unfair dismissal applications in the Fair Work Commission can be complex and often experts in the field. 

As Lawyers who exclusively act in the area of employment, we can help you navigate the complicated area of unfair dismissals.  We can assist you with unfair dismissal applications as well as attending Fair Work Commission conciliations and hearings.

What are your legal options?

Depending on your circumstances, you may be eligible to file an unfair dismissal application with the Fair Work Commission. 

Eligibility criteria includes the minimum time you have been employed, whether you earn under the high income threshold, fall under an award or enterprise agreement, whether you have filed your application within 21 calendar days of your last day of work and that you have paid the filing fee.

What outcome can you receive in an unfair dismissal application?

If you are successful with your unfair dismissal application, then the Fair Work Commission may order that:

1. 1. 1. you be reinstated into the job that you were dismissed from; and/or 
      2. you be compensated for any loss up to 26 week’s pay. 

The Fair Work Commission cannot award compensation for any shock, distress or humiliation, or other damages other than economic loss caused by the manner of the dismissal.

How do our employment lawyers help you?

We can help you by talking through the eligibility criteria with you and assist you in deciding whether your dismissal was unfair or not and preparing and filing the application and advocating you at the conciliation.

Frequently Asked Questions

What is the time limitation for filing an unfair dismissal application?

The time limit is 21 calendar days, from the date dismissal occurred. You may file an out of time application but you will need to address: the reasons why you are out of time.

1. 1. 1. the reason for the delay;
      2. when you first became aware of your dismissal;
      3. actions you have taken to dispute the dismissal;
      4. prejudice to the employer because of the delay;
      5. the merits of your unfair dismissal application; and 
      6. fairness between you and other persons in a similar position.

What is the high-income threshold?

Currently the high-income threshold is $158,500. This changes from year to year.

Do I need a lawyer to file an unfair dismissal application?

No, you can use the unfair dismissal benchbook to help you file an application. The benchbook provides a plain English explanation of the processes in the Fair Work Commission but does not provide legal guidance.  We also have a youtube channel with a tutorial on how to prepare and file an unfair dismissal application.

What is a conciliation?

The first major step in an unfair dismissal application is for the parties to attend a conciliation organised by the Fair Work Commission. 

The conciliation is an informal process and is conducted over the phone by a conciliator or a commissioner. 

The conciliation is a great opportunity for the parties to resolve the matter before the need to incur further legal costs and undergo a lengthy Commission process.  If your matter is not resolved at the conciliation then it will progress further towards a final hearing. 

Can legal costs be awarded in unfair dismissal claims?

Generally, each party is required to pay their own legal costs.  Costs can only be awarded if:

1. 1. 1. a party has started or responded to an application vexatiously or without reasonable cause; 
      2. it should have been reasonable apparent that the application had no prospects of success; or 
      3. a party has made the other party incur costs because of an unreasonable act or omission or because of unreasonably continuing a matter.