Unfair dismissal – Is it worth it Find out!. Is a question we are asked all the time. If you been unfairly dismissed and are now grappling with the question of whether you should lodge a claim of unfair dismissal? Are you weighing up your options as to whether the whole ordeal would be worth it? Many employees that have been terminated or dismissed are faced with these sorts of questions. Thankfully, here are a number of reasons as to why it may be beneficial for you to seriously consider lodging a claim. If you want compensation (nothing wrong with that, the employer needs to pay, click on “how much is my unfair dismissal case worth“.
Clearing your name
Firstly, if you genuinely believe that you have been unfairly dismissed then stand up for yourself and lodge your claim in the name of justice. Many people lose their job and do not always agree with it. This is why it is imperative that if you disagree with the reason for your termination, you challenge this decision and clear your name. Being dismissed has the serious potential to impact your future employment and prospects of finding alternative work. During the unfair dismissal process, an applicant can seek to have the company retract the termination and instead allow them to resign as part of a settlement agreement. This may also be accompanied with a statement of service or written reference.
If an employee and their ex-employer reach an agreement prior to a formal hearing, it is likely that the terms of this agreement will be reflected in a document known as “Terms of Settlement” or a “Deed of Release”. This document serves to formalise the agreement between the parties in writing and stipulates that that without any admission of guilt or fault, the parties have reached an agreement. These documents often contain clauses that are beneficial to you and your future, such as confidentially, non-disparagement and release.
These clauses serve to ensure that both parties agree to keep the matter confidential (meaning that the employment, dismissal and Fair Work Commission proceedings are all confidential), neither party is to make disparaging comments about each other to anybody and both parties agree that they will not make any future claims or actions against each other. In the event that there are allegations of misconduct or animosity between the parties, a document of this type will prove to be beneficial to both parties and provide the legal reassurance needed to move forward.
This sort of agreement can be struck with or without any financial compensation and so a number of employees will lodge a claim for unfair dismissal to solely clear their name and obtain a resignation on their personnel file. This may be an important or crucial factor for obtaining future employment.
Unfair Dismissal – Is it worth it find out! The /Fair Work Commission Option = Cost-friendly Litigation
If an employee lodges an unfair dismissal claim, there is no expectation that they seek legal advice or retain legal representation. To lodge an unfair dismissal claim, the current application fee is $74.90. This fee can be waived in cases of serious financial hardship. If you believe paying this fee may cause you serious financial hardship, you can complete a waiver form and send this in with your application. Nevertheless, you are strongly encouraged to consider representation as it gives you the best possible chance of obtaining a desirable settlement.
When you have a representative, they will guide you as to what these standards are and this will indicate to the Commission and the opposing party that you are taking the matter seriously. In order to argue the best possible outcome, applicants need to seize both the moral and legal high ground in the way they carry themselves during these conferences and hearings.
It is also important to note that the Fair Work Commission is an independent government body and so they are impartial. This means that the agents of the Fair Work Commission, such as conciliators or Deputy Presidents, are not on the employee’s side. They provide even handed advice to both employers and employees. If you engage a representative, they will address the merits of your claim, the Respondent’s arguments and provide you with the best advice on how your case should be handled.
Many people are put-off any sort of legal action due to the misconception that justice is not cheap. Justice does not always have to come at a price. The Fair Work Commission acts like a court and operates like one, but is not a court. A Fair Work Commission claim does not have the same hefty legal fees as an ordinary court proceeding in a higher court such as the Federal Court of Australia. Thus, applicants need not be deterred from lodging a claim of unfair dismissal out of fear that they may not be able to afford it. Many lawyers or paid agents can offer no-win, no-fee arrangements for unfair dismissal claims and the standard of work remains the same without breaking the bank.
Fair work Commission procedure
Similarly, the Fair Work Commission’s procedure involves alternative dispute resolution mechanisms in order to avoid the need for a formal hearing. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving an Unfair Dismissal dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings. In the Fair Work Commission 2018-19 Annual Report, 13,928 Unfair Dismissal applications were lodged. Of these 13,928 applications, 78 percent were (a total of 8,161) were resolved at the conciliation conference with the assistance of the Commission staff during conciliation.
Make your employer PAY
Unfair dismissal – Is it worth it? one of the reasons to pursue a claim, is to make the employer pay, “they have to understand what I’ve been through”. One of the most attractive aspects of an unfair dismissal claim is the possibility for financial or monetary compensation. However, it is important to note that there is a statutory cap regarding the amount of money you can seek. Unfair dismissal claims have a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination, whichever is lesser. This can be sought during conciliation or can be awarded by a Fair Work Commission Member if they are satisfied that reinstatement is inappropriate. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress or humiliation.
When determining the amount of compensation that may be awarded, the Fair Work Commission will take into account the employees’ length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated, the efforts of the employee to mitigate the loss suffered because of the termination, such as looking for alternative work, the amount of remuneration earned by the employee from employment or alternative work during the period between the termination and making the compensation order.
Aforementioned, there is a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination, whichever is lesser. At arbitration, the Fair Work Commission Member cannot order a Statement of Service be provided and the decision is publicly listed online for anyone to see. Thus, whilst unfair dismissal claims may be a cost-friendly legal action, it may be considered a “low return” in regards to the amount of money that can be sought. Nevertheless, when a person has lost their job, any number of weeks pay is beneficial whilst looking for alternative work.
Unfair Dismissal – Is it worth it Find out!
Other factors are numerous: revenge, principal, stress of lodging the claim, focusing on getting another job, I was sacked for no good reason, i have to do something. There is allot to consider
Any questions regarding “Unfair Dismissal – Is it worth it? Find out!“, we would love to hear from you. We are A Whole New Approach P/L, we are not employment lawyers, or a government agency, we are independent workplace advisors, we lead in advocacy work, representation and research on all matters relating to the workplace. Any Fair work Commission matters, termination of employment, including being sacked (dismissed), general protections, workplace investigations. Any diversity in he workplace issues, we are happy to hear from you. We work in all states, including Victoria, NSW, QLD, Tas, SA, WA, NT.