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Lost your Job? What are your Options

Has your employment been recently terminated?

Do you think your dismissal was wrong?

If your answer is YES to the above, and you want to seek a legal remedy, you have some options to consider.

If you think you are eligible, you must apply to the Fair Work Commission within 21 calendar days of the employment dismissal taking effect. The Commission will only allow a late application if it is satisfied that there were exceptional circumstances that led to it being lodged out of time.

Unfair Dismissal application

Unfair dismissal is when an employee is dismissed from their job (i.e., terminated by their employer, or forced to resign because of something the employer did) in a harsh, unjust or unreasonable manner.

To be eligible to apply, the employee must have worked the following minimum employment periods:

  • If a small business*, then at least 12 months. (A small business is defined as any business with fewer than 15 employees).

  • If a large business, then at least 6 months.

*Small businesses have different rules for dismissal which are set out in the Small Business Fair Dismissal Code. The Fair Work Commission will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this.

Additionally, the employee must be:

  • covered by an employment award, or

  • covered by a registered agreement, or

  • have an annual earnings rate which is less than $153,600 (as of 1 July 2020). This threshold is indexed each financial year starting on 1 July.

Is the Unfair Dismissal application suitable for me?

This may be the most appropriate application for you if:

  • you believe there was not a valid reason for your dismissal, or

  • you were not notified of the reason before you were dismissed, or

  • you were not given an opportunity to respond to the reason for your dismissal before you were dismissed, or

  • you had not previously been warned about unsatisfactory performance, or

  • in all the circumstances, your dismissal was harsh, unjust or unreasonable.

What is Redundancy and when could it become an Unfair Dismissal?

Sometimes, the employment comes to an end because of redundancy.

Redundancy occurs when an employer either decides that they no longer need an employee’s job to be done by anyone, or the employer becomes insolvent or bankrupt, and terminates the employment.

A genuine redundancy by a solvent employer is when:

  • the person’s job doesn't need to be done by anyone,

  • the employer follows any consultation requirements in the award or registered agreement, and

  • there was no reasonable opportunity for the person to be redeployed within the employer’s business or an associated business.

If any of the above elements are missing, the redundancy is not genuine and an eligible employee is able to bring an unfair dismissal claim.

Where redundancy occurs because of employer's insolvency or bankruptcy, employees may get compensation for the lost wages and entitlements through the Fair Entitlements Guarantee (FEG).

General Protections Dismissal application

This is where an employee is dismissed by their employer for one or more of the following reasons:

  • the employee's race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)

  • temporary absence from work because of illness or injury

  • trade union membership or non-membership or participation in industrial activities

  • exercising or planning to exercise a workplace right by making a complaint or inquiry in relation to the employment, or participating in proceedings against the employer.

Is the General Protections Dismissal application suitable for me?

This application is not about the fairness of your dismissal, it is about a dismissal that has occurred in breach of protections set out in the Fair Work Act 2009.

Generally, the Fair Work Commission only has a narrow role in relation to these types of disputes, and that is to facilitate a conciliation conference. If you wish to have the matter determined to its finality, you may need to commence an action in the Federal Court. However, you cannot commence an action in the Federal Court until after you have been through the Fair Work Commission General Protections processes.

If you have recently lost your job and you want to take a legal action, contact us as soon as you find out about the employment dismissal. We have a team of experienced solicitors who would happily assist in advising on the merits of your application, possible remedies, preparing the application as well as representing you at the Fair Work Commission and Federal Court proceedings.


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