Unfair Dismissal Lawyers

Unfair Dismissal
Under the Fair Work Act 2009, an unfair dismissal occurs when the termination of an employee was “harsh, unjust or unreasonable".


The Fair Work Commission (FWC) deals with the most unfair dismissal claims. The FWC does not deal with unfair dismissal for persons employed by the NSW State Government, or a related body. It is the role of the NSW Industrial Relations Commission to facilitate unfair dismissal claims for state public sector employees.  

Eligibility to lodge a claim
To make an unfair dismissal application you must be covered by the national workplace relations system, completed a minimum employment period of at least six (6) months (one (1) year in the case of a small business employee) and have earned less than the high income threshold in the 12 months preceding your termination. An unfair dismissal application must be lodged within 21 days of the date of termination of employment.

Reinstatement or Compensation
The FWC has the power to order the reinstatement of employment in circumstances where an eligible employee has been unfairly dismissed. Where the Commission determines that reinstatement would be impractical, it has the power to order that the former employer provide the employee with compensation of up to 26 weeks pay.

 

General Protections - Adverse Action
Under the Fair Work Act, employees who choose to engage workplace rights are guaranteed general protections from being treated adversely by their employers. A workplace right is defined under the Act as being:

  1. an entitlement set out in a workplace law, workplace instrument or ordered by an industrial body;
  2. participate in, a process or proceedings under a workplace law or instrument;
  3. make a complaint or inquiry:
    - to a body with power under workplace law to seek compliance with that law;
    - about their employment.

In addition, General Protections extend to discrimination based on race, colour, sexual preference, age, physical, mental or intellectual disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Eligibility to lodge a claim
All employees are eligible to lodge a General Protections claim - regardless of whether there employment has bene terminated.  Unlike unfair dismissal there is no earnings threshold requirement for employees to meet and eligibility is purely reliant on whether or not the employee has engaged (or in some instances not engaged) a workplace right and been 'adversely affected' by their employer as a result. Where an employee has suffered 'adverse action' at the hands of the employer the affected employee will have 21 days from the date of that the "action action" was taken against them in which to file a General Protections application with the FWC.

Compensation or Reinstatement
Unlike the unfair dismissal regime, there is no cap to the compensation that can be awarded to an applicant of a General Protections claim. However, the award of compensation usually takes into account similar criteria as an unfair dismissal case. There is also the ability for the FWC to order that the applicant be reinstated to their previous position.

Our experienced employment lawyers have assisted hundreds of employees with dismissal related claims. We a strong reputation within the legal profession for our expertise in employment law and can help you achieve a fair outcome.