How Can I Get More Than 26 Weeks Pay For My Unfair Dismissal Claim?
The maximum amount of compensation you can seek for an unfair dismissal claim is 26 weeks’ loss of pay according to the FWC. However, there may be ways to claim more compensation depending on the circumstance. Every few employees achieve this amount at the FWC
Generally, the parties to the Unfair Dismissal (Applicant and Respondent) will come to an agreement in terms of what is the most appropriate compensation that should be awarded to the Applicant. If there is no agreement at conciliation, the Commission may order the Respondent to pay compensation at an arbitration.
What is considered when calculating compensation
When the Commission calculates costs to be awarded. They first consider how long the employee would have remained employed, if they had not been dismissed. The Commission will look at the length of time the employee worked for the employer. Also other factors such as their work history and any performance or behaviour issues. As an employee, you will need to provide proof of what you were earning, including allowance or any regular overtime.
Next, the Commission considers any money which the employee earned since the dismissal became effective. For example, any workers’ compensation payments are considered wages and therefore will be deducted. Or perhaps the employee has received another job position elsewhere earning new income.
Employees conduct is considered
The Commission will also consider what impact the compensation amount to be awarded will have on the employer. As such, the ability of the business to still operate after paying compensation to the employee. Furthermore, if the Commission believes the employees’ misconduct has contributed to the dismissal, the amount of compensation will also be reduced. It is important to note that the Commission will also consider whether the employee has taken reasonable steps to reduce their loss. Such as trying to find a new job.
Furthermore, the compensation will be reduced if the amount calculated is above the compensation cap. The Compensation cap as of July 2021 is the lower amount between half of the employee’s annual wage, or $79, 250. The Compensation limit comes from the maximum 26 weeks’ pay. And the fact that unfair dismissal claims can only be lodged for employees earning under $158,500 per year. It should also be noted that less than 0.4% of employees receive the maximum amount of compensation. As such, it is very rare to receive more than 26 weeks’ pay, let alone 26 weeks’ pay.
For example, if an employee earnt $50,000 per year before their dismissal, their compensation cap would be $25,000 as it is the lower amount between half her salary and the compensation limit. The Commission may calculate the employee’s compensation as $33,000, above the compensation cap. If this happens, the Commission will have to order that the employee is only paid $25,000.
Now that we understand how compensation is awarded, let’s look at how it is we can still claim above 26 weeks’ pay!
As mentioned previously, in an unfair dismissal claim, you cannot be awarded more than 26 weeks’ loss of pay/ $79,250 by the Commission. For example, Krisha earned $160,000 per year before she was dismissed. Even though Krisha earned above the high-income threshold she was protected from unfair dismissal. Because she was covered by an enterprise agreement. Half of Krisha’s annual wage is $80,000- above the current compensation limit of $79,250.
This means that any amount of compensation ordered by the Commission cannot be more than $79,250. The Commission calculates Krisha’s compensation as $93,000. Because this is more than the compensation limit, the Commission orders that Krisha is paid $79,250 (Example taken from FWC webpage).
However, if applicable, you may consider suing your employer for breach of contract, which may result in compensation greater than 26 weeks’ pay. The remedy for breach of contract is monetary damages. In which you may be awarded compensation for money loss due to the breach of contract. However, suing your previous employer for breach of contract may be difficult and costly. As such, it would be best to ensure you have a valid breach of contract claim, before spending such money in court.
Instead of lodging an Unfair Dismissal claim. You may lodge a General Protections Claim if you have been dismissed for exercising a workplace right or were discriminated against. Additionally, a General Protections Claim does not involve the $158,500 salary limit. Therefore, any employee on a higher salary is eligible. Be aware the basis to bring a claim is narrower.
There is no capping for how much you can seek when lodging a General Protections Claim. In fact, you may seek loss of weeks’ pay. As well as compensation in the form of general damages for pain and suffering. For example, seeking payment to account for the stress and anxiety inflicted by the Company.
In Sagona v R & C Piccoli Investments Pty Ltd & Ors  FCCA 875. The Applicant was an employee of a small family-run business for over 12 years. The Applicant advised the Company that she was 10 weeks pregnant and proposed to take a period of maternity leave. It was held that the applicant was forced to resign as a result of the course of conduct taken by the Company due to her pregnancy. The Court was also satisfied that the Applicant was injured in her employment by the Company’s treatment towards her.
The company was ordered to pay
The Company was ordered to pay the Applicant $61,000 as a pecuniary penalty, $164,097 for loss suffered and $10,000 for distress, hurt and humiliation. This amount awarded far exceeding 26 weeks’ of her pay and $79,250.
However, it is important to note that if you are unsuccessful at conciliation with your General Protections Claim. You may go to the Federal Circuit Court or the Federal Court. The costs for taking the claim to the Federal Court can be very costly and likely to take a long time. Although, if successful, the compensation awarded is likely to be greater than what would have been offered at conciliation.
If you have been injured at work and have been paid wages through your Workers Compensation claim. You cannot be terminated for lodging the claim. However, if you are unable to return to your pre-injury duties after 12 months (this time length may change depending on state), the Company may fairly and lawfully terminate your employment. Although, the dismissal should not affect your Workers’ compensation.
As such, you may be receiving more than 26 weeks’ pay through a WorkCover claim, than you would be by lodging an Unfair Dismissal Claim. Depending on your approved claim agreement. Important to note however, your doctor must continue to certify that you are unfit to carry out your pre-injury duties, even after termination.
Things to consider in how can i get more than 26 weeks pay
Overall, you may be able to claim greater than 26 weeks’ loss of pay in the following circumstances:
- if you have been dismissed while on WorkCover, you may receive continuous WorkCover compensation for your injury, which may be greater than 26 weeks’ worth of your pay.
- Suing your employer for breach of contract in court.
- Lodging a General Protections Claim if you have been dismissed for exercising a workplace right or if you have been discriminated against/ sexually harassed. If unsuccessful at conciliation, you may proceed to the Federal Circuit Court or the Federal Court. (its costly, keep this in mind)
Go straight to court
The other way to approach the dismissal or claim is go straight to court, get good solicitors advice, and consider this option. We cannot give this advice as we are not lawyers, but we can refer you to one. We have a very good referral system. Many employees on higher salary, seniority, older employees, considerable service, or have been subject to deceptive and misleading conduct in their employment, consider this option.
How Can I get More than 26 Weeks Pay For My Unfair dismissal Claim?
How Can I get More than 26 Weeks Pay For My Unfair dismissal Claim? The list is not extensive. I hope this helps, we publish allot of blogs about unfair dismissals, general protections, constructive dismissals. However its far more fun / less stressful to keep a job, than to lose it. The stress of losing money and finding a new one. You are always welcome to call us and discuss your situation. Our view is always get representation.1800 333 666.
We are A Whole New Approach P/L, we are not lawyers, but voted No1 for workplace advice. Matters involving termination in the workplace, diversity in the workplace, we are happy to discuss. All Fair work Australia (FWC) matters we are happy to give free advice. Anything to do with workers rights, employment rights, we are here for you.
An article that may be of assistance on larger payouts, general protections click here
We have a page on cases and what there worth, click here
Difference between dismissal and general protections, click here
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.