If you are dismissed from a workplace and you feel as if the conditions surrounding that dismissal aren’t necessarily fair, it may be the case that you have either been unfairly or unlawfully dismissed.
The law surrounding unfair and unlawful dismissal can be complicated, particularly unfair dismissal, which is why there isn’t necessarily a perfect guideline or reliable precedent for working out the circumstances of the fairness of a dismissal. Typically you only have 21 days to bring your case before the Fair Work Commission, so it’s critical you get your details to a reliable lawyer as soon as possible if you think have been treated unjustly!
While it may be the case that a dismissal could be both unfair AND unlawful, understanding exactly what each one is and how they apply will be the first step in understanding what options you may have available.
A dismissal can be deemed unfair if it is unjust, harsh or unreasonable in relation to the termination of employment based on the behaviour or performance of an employee. The employee must have been given sufficient opportunity if appropriate to rectify their behaviour, and in the instance of termination must have received a fair process and have a clear understanding of the reasons for termination.
Sometimes employee conduct will have been sufficiently unsatisfactory to be able to terminate immediately, and sometimes unsatisfactory performance is not sufficient to do so and will require a number of warnings about rectifying behaviour before termination would be fair and not unjust. This can change on a case by case basis, so confirming the details of your case with a lawyer as soon as possible is crucial to working out your options.
One of the distinctions here is where there is a case for genuine redundancy; that is, for financial or technological reasons an employer no longer requires a position to be filled. It is the position and never the person that is made redundant and an employer must take steps to redeploy the employee in other positions if possible. The employer must also engage in a clear and fair process in relation to a redundancy, a process which documents a genuine need for the redundancy of that position.
There are two main remedies an individual is entitled to if they have been unfairly dismissed. The first is reinstatement of employment, if reinstating is possible without a breakdown of future working relationships. Secondly (and subject to statutory thresholds), a worker may be entitled to compensation up to a maximum of six months of the annual working wage from the date of dismissal.
Unlawful dismissal differs in that the dismissal is unlawful for express reasons, which vary from discrimination on the basis of gender or race, maternity leave or union activity outside of work hours. It does not apply to contractors, or to people who have simply discharged the specific contractual period of work for which they were obligated. There are also a special series of rules that apply to those who are suffering from illness or injury as a result of their work, and it is unlawful to dismiss someone who is suffering from a temporary illness that renders them unable to work. There is a careful difference between terminating an employee because they are ill or injured and terminating an employee because that employee can no longer perform the requirements of the position, though one may eventuate from the other.
Remedies for breach of unlawful dismissal are the same as unfair dismissal, and may include compensation or reinstatement. Again, in both instances, proceedings must be brought within 21 days of the dismissal, so it is imperative to speak to a lawyer to ascertain possible circumstances for remedy!
For any questions around dismissal or your rights in relation to cessation of employment feel free to contact us at email@example.com or 1300 FNQ LAW.
Disclaimer:This article contains general information and personal opinions. The information contained in this article is not legal advice and should not be treated as such. You must not rely on the information in this article as an alternative to legal advice from an appropriately qualified professional. If you have any specific questions about any legal matter you should consult an appropriately qualified professional. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this article. We do not represent, warrant, undertake or guarantee that the use of information in this article will lead to any particular outcome or result.
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