Legal Guide

How Do I Know if I've Been Unfairly Dismissed?

Being dismissed from your job is a difficult situation to have to face. There are many reasons that an employee can be legally dismissed, such as in the case of genuine redundancy, because of poor performance or due to serious misconduct. However, there are also plenty of situations where employees are dismissed unfairly and may be entitled to legal recourse.

Employers have a duty of care towards their employees and, as an employee, you have certain rights in the workplace. Your employer cannot do whatever they like, whenever they choose. They have to act within the confines of the legal system, treat employees fairly and follow procedure when interacting with their workers. There are many reasons that an employer might have grounds to fire an employee, however, they must have a valid reason to end your employment and follow the correct procedures, otherwise, you might be able to make an unfair dismissal claim.

Continue reading to learn how you can determine if you have been unfairly dismissed by your employer.

What Constitutes An Unfair Dismissal?

An employee is considered dismissed when their employment contract comes to an end or is ended by the employer, the employee resigns or in the case of a constructive dismissal where the employer has committed a breach of contract, allowing the employee to resign in response.

On the other hand, an employee can be said to be unfairly dismissed when the dismissal was harsh, unjust, or unreasonable. The dismissal was not because of a genuine redundancy or, in the case of small business owners, where the dismissal was not in keeping with the Small Business Fair Dismissal Code.

Who Can Make An Unfair Dismissal Claim?

If you feel that you may have been unfair, you will need to lodge your application to the Fair Work Commission within twenty-one days of your dismissal. You will need to show the commission that your dismissal was indeed unfair, based on the circumstances we have described above. It is also crucial that you have served a minimum employment period for your application to be processed.

For small businesses with fifteen employees or less, the minimum employment period is one year. And, for employers who are not classed as a small business, the employment period is six months. Finally, you must be covered by the national workplace relations system to be eligible to make a claim.

What To Do If You Have Been Unfairly Dismissed

For employees who have been dismissed unfairly, you can begin legal proceedings by simply applying to the Fair Work Commission with the correct paperwork and fee. Your employer will be given an opportunity to respond to the claim and you will then be given an appointment for a conciliation conference, where you and your employer will try to resolve the issue with the help of the Commission. If a resolution cannot be reached, your case will be forwarded to a Commission member to assess the merits of the case. Based on their assessment, the dismissal will either stay in effect, you will be reinstated or you will receive compensation of up to twenty-six week’s pay.

Understand Your Rights And Take The Next Steps With Confidence

Being dismissed from your job is a difficult thing for anyone to have to deal with. However, being dismissed unfairly is even more challenging to come to terms with and you need to pursue the correct course of action if you find yourself in this situation. Take some time to explore your options, seek out legal advice and understand your rights before moving forward. With the right approach, you can confidently take the next steps towards getting reinstated or compensated for your unfair dismissal and put this issue behind you for once and for all.

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