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What is Unfair Dismissal?
Unfair Dismissal is defined within the provisions set out in the Fair Work Act 2009 (Cth). It includes the dismissal or termination of an employee’s employment in instances deemed unreasonable, unjust, or harsh. In addition, if the dismissal is not inline with the provisions defined in the Small Business Fair Dismissal, the situation can be called unfair dismissal. It should not be a dismissal that happens due to genuine redundancy as well. This is clearly defined within the Fair Work Act in 2009.
Lodging an Unfair Dismissal Application with Fair Work
If you are a victim of unfair dismissal, you will be able to proceed with lodging an unfair dismissal application to the fair work commission. There is a very strict time period of 21 days to lodge an unfair dismissal application from the date of termination. It is possible for you to proceed with an application on your own. However, we encourage you to get in touch with an Employee Advisor and for support. Doing so will ensure you have a clear understanding of how to proceed with the case and ensure all your facts are clear, and in support of achieving the best possible outcome for you.
There are other instances of dismissal which includes general protections and unlawful termination. Both of which are options to consider dependent on the circumstances surrounding your dismissal by your employer.
What are some examples of unfair dismissal?
Now you have a basic understanding of what unfair dismissal is. While keeping that in mind, let’s take a look at some of the examples and situations that may constitute unfair dismissal. Based on this, you can get a clear understanding of whether you are a victim of unfair dismissal or not.
- Your employee was terminated without providing a valid reason, which relates to your conduct or your capacity.
- Your employer didn’t notify you about the dismissal through a face-to-face interview or any other formal method.
- Your employer didn’t allow you to talk to a support person, with whom you will be able to discuss your termination.
- Your employer didn’t provide you the opportunity to respond to the claims made against you for dismissal.
- Your employer didn’t warn you in the past about your poor performance and you received a dismissal notice related to it suddenly.
- Your employer didn’t have any Human Resource specialist or any other person with relevant experience, who can explain the situation on what would happen after dismissal.
Apart from these common examples, any other related case can be considered as unfair dismissal.
The objective of the Fair Work Commission is to determine whether the reason provided by the employer against the employee for dismission is unjust, harsh, or unreasonable. The reason should also be relevant to the employee. If the commission figures out that the employee has been terminated on false grounds, there is a possibility for the employee to proceed with an appeal. The commission will take the appeal forward and do justice to the dismissed employee. The commission carefully analyzes each and every factor related to the case before making a decision.
How should an employer notify you of dismissal?
It is the responsibility of an organisation (your employer) to formally inform dismissal to the employee. It should not happen through any of the electronic communication methods such as a text message. There should be a face-to-face meeting in order to notify an employee about the dismissal. However, an email can be used to communicate the same after the face-to-face interview. If there is no possibility to have a face-to-face interview due to an extreme case, dismissal can be informed via email or a video call.
A dismissal decision taken by an organisation would not come to effect until it is communicated to the employee. When there are a dismissal, lieu payments should be paid immediately.