An unfair dismissal in Australia is when an ex-employee has had their employment terminated unfairly by way of the organization, or if the worker resigns because they were pressured/forced to do so because of the behaviour of the organization (referred to as forced resignation).
A person has been unfairly dismissed when the Australian Fair Work Commission sees that:
An ex-employee can submit an unfair dismissal claim if they have:
Completed the minimal employment period and are covered by a Modern Award (or award-based transitional instrument) or if an enterprise agreement (or agreement-based transitional instrument) applies to the person.
Please keep in mind, employees must have served a minimal employment period before they can make an unfair dismissal claim. Minimum employment intervals are:
Employers must always make sure procedural fairness is applied when dismissing an employee. When considering whether a dismissal is harsh, unjust or unreasonable, the Australian Fair Work Commission will take into account all of the following factors:
Fair Work Australia defines a man or woman’s dismissal as a case of correct and legitimate redundancy if:
Fair Work Australia considers the employer did not require the employees activities and the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
If a new member of staff is issued the tasks performed by the person who has recently been dismissed, the dismissal may not be seen as genuine.
The employer must consult about redundancies in accordance with any Award or Enterprise Agreement that may apply.
If the employee could have found another job in the same or another business of the employer, it also may not be regarded as a genuine redundancy.
If you are not sure if you have been unfairly dismissed, talk to Unfair Dismissals Australia today!
Unfair Dismissals Australia is an industry leader. We strictly represent employees regarding issues to do with fair work. We are available 7 days a week.