If you feel as though you have been wrongfully terminated from your job, there are many ways you can bring yourself to justice. An employee can be considered wrongfully fired from their employment when their employer has initiated the termination, or they were forced to resign because of something the employer did.
Filing an unfair dismissal claim
If you have been wrongfully terminated you are eligible to make an application to the Fair Work Commission under two conditions, either general protections dismissal or unfair dismissal laws. You need to send in an application to the Fair Work Commission under these laws within 21 days of the dismissal taking place.
If you have been unfairly fired or terminated by your employer, or were forced because of your employer to resign, you can file an application under dismissal laws to the Fair Work Commission for either compensation or reinstatement (getting your job back). This is what is known as an unfair dismissal claim.
Your termination can be considered unfair if you were dismissed under these conditions:
- harsh, unjust or unreasonable dismissal
- You were not a case of genuine redundancy
- If you worked for a small business, and the reason for your termination is not compliant with the Small Business Fair Dismissal Code.
It is important to note that the Commission will not investigate why you were terminated, and that you will have to provide evidence to the commission to prove it was unfair. A Commission Member is legally capable of deciding whether or not your termination was unfair. This is where you can utilise unfair termination lawyers where they help you gather the evidence and present it to the commission.
Who can apply?
There is only so much a Fair Work Commission can do with unfair dismissal lawyers claims that is under their jurisdiction. Here are the conditions under which you can make an application:
- Apply for it within 21 days of termination becoming effective
- The national workplace relations system needs to have covered it
- You need to be have been the one who was dismissed, and
- Meet certain eligibility criteria, like the minimum employment period.
An employer has every right to pursue a jurisdictional objection if they can prove their terminated employee does not fall within the Commission’s jurisdiction. The unfair dismissal claim will be dismissed if the objection is upheld. best employment lawyer perth can consult you on whether or not the objection is valid in your case.
As an employer
If the Fair Work Commission has sent you a notice about an application for unfair dismissal, this can mean the following things:
- Someone you have recently believes that their dismissal was unfair.
- They have already started taking legal action against you to seek justice for the alleged unfair dismissal. However, there has been no result or decision made as of yet.
- You have every right to respond with the correct form/s, including explaining why you object to the application, otherwise the Commission will not have the information to progress or close the application.
- A time and date for a conciliation conference will be given to you and your company. This is an olive branch process where Commission staff try to find reconciliation for both sides without needing to involve a Commission Member. Staff conciliators are not authorised to make decisions on the basis of the application.
- Finally, the application will be sent to a Commission Member if conciliation fails, and they will come to a decision.
As an employee
If you believe your employment was terminated unfairly:
- You can take legal action against your employer with an to the Fair Work Commission using the correct unfair dismissal form and paying a small fee.
- The Commission will be obligated to send a copy of your application to your former employer, and they will have a chance to respond to your dismissal application.
- A time and date will be given to you for a conciliation conference. This is an olive branch process where Commission staff try to find reconciliation for both sides without needing to involve a Commission Member. Staff conciliators are not authorised to make decisions on the basis of the application.
- Finally, the application will be sent to a Commission Member if conciliation fails, and they will come to a decision.
- The compensatory measures the Commission can make are limited by the law (the Fair Work Act 2009), and a commission member can choose to do one of the following if your application is accepted for a hearing:
- Reinstatement, where you get your job back
- Compensation which is not more than 26 weeks’ pay, and does not include compensation for shock, hurt or humiliation
- Non-financial remedies where you receive something like a written statement of service.
Applying for an unfair dismissal claim is an entire legal process which is far more serious than simply making a complaint against your employer. Make sure to follow the appropriate procedures and instructions.
Why you will need a lawyer
Employment Lawyers Perth are skilled and equipped in handling delicate situations like the ones of wrongful dismissal. Things can get emotional and hurtful very quickly without a mediator. It is possible to send evidence to the commission and show up at the conciliation conference without a lawyer, but chances are the other party will already have a lawyer to defend their position. The lawyer can advise you on how to approach the situation while trying to negotiate with the opposite party.
An employment lawyer can help you follow procedures and remind you of important dates if you have never had a legal proceeding before. A lawyer’s expertise and experience can be calming in situations of high anxiety and pressure, and you need not do more than trust them to help you come to either a compromise or protect your interests. Whether you have been accused, or whether you are the one who has made the application, hiring a good lawyer can help you appropriately.
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