28 Jan UNFAIR DISMISSAL: Overview
An employee generally has the right to pursue an unfair dismissal claim under the Fair Work Act 2009 if one of the following applies:
- A modern award covers your employment. Most employees in Australia are covered by a modern award – the main exclusions are for some professional occupations;
- An enterprise agreement applies to your employment; or
- You earn less than the high income threshold ($138,900 per annum from 1 July 2016).
In addition, an employee is generally unable to pursue an unfair dismissal application if:
- They have not served the minimum employment period. This is 6 months or 12 months for a “small business” – which is defined as having less than 15 employees;
- The dismissal is on the basis of a genuine redundancy; or
- The employment was for a fixed period of time and the employment ends at the end of the specified period.
IMPORTANT: An application for unfair dismissal must be made within 21 days of the dismissal taking effect. An extension will be granted only in very limited circumstances.
If an unfair dismissal application proceeds to a Hearing, the Commission must ultimately decide whether the dismissal was harsh, unjust or unreasonable. A range of factors must be taken into account in making this assessment including: whether there was a valid reason for the dismissal, procedural fairness and any other factors considered relevant by the Commission.
The Commission can order the reinstatement of a person who it determines has been unfairly dismissed along with an order that the employer pay the employee for wages lost since the dismissal and restore the continuity of employment. If reinstatement is considered inappropriate, the Commission can award compensation which is capped at the lower of six months’ wages or $69,450 from 1 July 2016.
Make an online enquiry or call Crawford de Carne Lawyers today if you need further information about unfair dismissal laws or need assistance with a claim.
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