We end jobs with employers for a variety of reasons. Sometimes people end jobs on their own accord – which is the manner we’d all like to leave our places of employment. While other times, people are the victims of circumstances beyond their control, and have been let go by the employer such as a company becoming insolvent. Finally, there are those who believe they’ve been unfairly dismissed from their jobs and need to take action quickly.
Challenging an unfair dismissal
When challenging an unfair dismissal, be mindful that an application in relation to the dismissal must be made within 21 days of termination, which are the general notice requirements for the Fair Work Act. In New South Wales s 184(1) of the Industrial Relations Act states that if an employee has been dismissed in a “harsh, unreasonable or unjust” manner, the employee may apply to have their claim dealt with. Queensland’s unfair dismissal provision in the Industrial Relations Act also defines unfair dismissal in a similar manner.
Who cannot challenge an unfair dismissal?
Unfortunately, there are some categories of employees who are excluded from bringing an action of unfair dismissal that also apply at a state and federal level. Those who may be excluded are:
• an employee who is still on probation
• an employee on contract for a specific task
• a casual employee who is engaged for only a short period
• some apprentices and trainees.
Factors to be considered in an unfair dismissal
The Fair Work Act is where individuals can find the unfair dismissal provision, and just like the states, the unfair dismissal laws are similar in nature to New South Wales and Queensland.
Using the Fair Work Act as a guide, there are criteria that need to be considered when assessing the harshness of the dismissal of an employee:
• whether there was a valid reason for the dismissal related to the capacity or conduct of the individual
• whether the individual was notified of that reason
• whether the individual was given an opportunity to respond to any reason related to the capacity or the conduct
• any unreasonable refusal by the employer to allow the individual to have a support person present to assist at any discussions relating to the dismissal
• if the dismissal related to unsatisfactory performance by the individual , whether the individual had been warned about the unsatisfactory performance before the dismissal
• the degree to which the size of the employer’s venture would be likely to impact on the procedures followed in effecting the dismissal
• the degree to which the absence of dedicated HR management specialists or expertise likely is to impact on the procedures followed in effecting the dismissal ;
• and any other matters the Act considers relevant.
Unfair dismissal proceedings covered under the Fair Work Act is handled by Fair Work Australia, who may be able to handle a claim up until its conclusion. However, if the issue cannot be resolved by the process of conciliation, the claim may be pursued in the Federal Court or the Federal Magistrates Court.
Leaving a job in acrimonious circumstances is less than ideal, and the trauma is greater when an employee believes that they have been treated harshly by the employer. There are avenues that you can take to seek help if you believe you have been unfairly dismissed from a place of employment. Make sure you use them for your own benefit.