At Workclaims Australia we are specialists at running unfair dismissal cases in the Fair Work Commission and in the Western Australian Industrial Relations Commission. Workers dismissed will often have a sense of grievance that they have not been treated fairly. Unfair dismissal cases arise where the decision to dismiss lacked a valid reason or was harsh or unjust or unreasonable.
The law with respect to an unfair dismissal is that the employer must always have a valid reason for the termination. More often than not there will be a dispute about the reason being valid . To be a valid reason it must be sound and defensible. This is in the sense that the employer must establish evidence based grounds to exercise the power of dismissal. Even if there is a valid reason that will not necessarily be fatal to an unfair dismissal claim. There are a range of matters which the Tribunal must take into account. Ultimately the Fair Work Commission has a very wide discretion in deciding whether in all the circumstances the termination was a harsh one or whether it was an unjust termination or whether it was unreasonable. If the Tribunal finds that one of these factors exist it will be in a position to make a finding of unfair dismissal.
The Commission will also consider the procedural fairness as to whether the dismissed worker had been given reasons for the dismissal and had a fair opportunity to respond. In many cases there will need to be previous warnings well documented with time lines for improvement and rectification.
A feature often not fully understood is that the term redundancy can be used quite loosely by employers. The legislation prevents an unfair dismissal being made if the termination was due to a genuine redundancy . However the redundancy needs to be considered very carefully particularly from the standpoint of whether the worker being dismissed could have been deployed elsewhere in the business or a related entity. Always check this point with Workclaims Australia .
Time is of the essence. A dismissed worker has 21 days to lodge a claim. There is a provision allowing an extension of that time but it is rarely appropriate to the circumstances. The legislation speaks of exceptional circumstances and these will be rare indeed. The critical advice is do not delay. Get the claim in within the 21 day limit as you can always add material to the application.
Applications made for unfair dismissal are dealt with firstly by conciliation where an attempt is made to reach an amicable agreement between the parties and if that does not succeed then the matter is sent for a full hearing before a member of the Commission.
The remedy for unfair dismissal can be re-instatement with all entitlements intact and payment of lost wages since the dismissal. If that is not appropriate then the Commission can order the payment of compensation.
So immediately you are dismissed call us at Workclaims Australia for urgent advice. Call 0893010850. You may have a case even if you resigned and this was caused by the conduct of the employer.