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Steps to Take Against an Unfair Dismissal

Employment law in Australia is designed to offer protection to all kinds of employees across industries to ensure they are treated with fairness. Employers are required to enforce a safe, healthy work environment, pay fair wages and comply with a range of regulations when dealing with employees. 

What is Unfair Dismissal?

According to the Fair Work Commission, a workplace dismissal is considered unfair if: 

  • The dismissal was harsh, unjust or unreasonable 
  • There was not a valid reason for the dismissal 
  • The dismissal does not qualify as a case of genuine redundancy
  • If your dismissal was not in line with the Small Business Fair Dismissal Code

Basis for Harsh, Unjust or Unreasonable Dismissal 

An employer performs a harsh, unjust, or unreasonable dismissal if:

  • The employee was not adequately informed of the reason for their dismissal
  • The employee was given a chance to respond to the cause of their dismissal
  • The employee was not permitted to avail themselves of a support person to assist during the discussion of their dismissal
  • The employee was dismissed due to consistent unsatisfactory workplace performance but was not given prior warning of this before dismissal
  • Reasons for dismissal based on the employee’s capacity or conduct are unclear

Filing a Claim Through the Fair Work Commission

To file an application, you must do so within 21 days of your dismissal and have coverage from the national workplace relations system. You must be a full-time employee for at least six months with earnings under $153, 600 or have earnings covered by an enterprise agreement. 

The unfair dismissal claim process will proceed as follows:

  1. Fill in the correct form and pay a fee for your application to the Fair Work Commission.
  2. The FWC will then send a copy to your former employer, and they will be provided a timeframe in which to respond to your claim. An employer can lodge an objection if they believe the case does not fall under the FWC’s jurisdiction. If this objection is upheld, the unfair dismissal claim will be dismissed.
  3. FWC staff will provide a date for a conciliation conference. This is a mediating step to help both parties resolve the dispute without the need for a formal hearing.
  4. If the issue cannot be resolved, the application will be sent to a Fair Work Commission Member for a hearing. 

Employment & Unfair Dismissal Lawyers in NSW 

Access Law Group’s team of employment lawyers specialise in providing legal counsel for employment disputes to ensure that the aggrieved party has all the expertise they require. Contact our expert employment lawyers today to defend or file your claim.