UNFAIR DISMISSAL

The first thing to consider is the reason for the dismissal.

Was there a valid reason? Did the employee fail to perform their duties? Was there some sort of misconduct?

If the answer is “no”, or “yes, but”, the employee should then consider whether they are in fact eligible to make a claim.

Section 394 of the Fair Work Act 2009 sets out the requirements that need to be met to be eligible to make a claim for unfair dismissal.

The most important factor is whether the claim is commenced within 21 days from when the dismissal took effect. There is special legal meaning as to when a dismissal “took effect” so if there is some question about when the dismissal occurred and the answer impacts your eligibility, seek advice urgently.

If the dismissal took effect within the last 21 days (or may have) or there is a good reason for a delay in making a claim, the employee will likely be eligible.

In addition to this, the employee needs to have been employed for the ‘minimum employment period’ which is 6 months for employees employed by businesses with more than 15 employees or 1 year (for employees employed by small businesses).

Further, the employee needs to be covered by an award, enterprise bargaining agreement (aka ‘EBA’) or earn less than the high-income threshold (which is currently $175,000 for dismissals taking place after 1 July 2024).

Although these eligibility questions seem straightforward, that isn’t always the case for all circumstance so legal assistance may be required to answer some of these questions.

Once the employee has determined that they are eligible to make a claim, they need to consider whether they are likely to win their case and, if they do, whether it is worthwhile financially.

When looking at whether an employee is likely to win their case, the Fair Work Commission considers whether the dismissal was ‘harsh, unjust or unreasonable’ and whether the dismissal was a case of genuine redundancy.

Some of these words have special legal meaning so, unless the employee is going to take the time to teach themselves those meanings by reading the legislation and applicable case law, they should seek legal advice as to their chances of success in their specific circumstances.

When considering whether it is financially worthwhile to make a claim, the employee needs to weigh up how much their claim is worth if they win (which should include financial compensation but also how they will feel to obtain justice and deter their employer from doing the same thing to others) against how much it is going to cost them to do it (which should include legal costs but also their personal time and the emotional toll of litigation).

If, after reading the above, you think you might be eligible for an unfair dismissal claim and you would like to confirm your eligibility and get some advice about your chances of success and whether the case is worthwhile, call us for a free initial consultation with an experienced employment lawyer.

If we don’t think you have a case, we’ll tell you. If we think you do have a case, we’ll talk to you about the next steps.

Remember! You only have 21 days to make the claim and you need to allow time to retain a lawyer and have your documents drafted, so the sooner you get in contact with us, the more likely we are to be able to help you.