Australian employees receive a high level of protection from employment laws. These include protection against unlawful, wrongful and unfair dismissal. And, although you might not realise it, these are quite different.
Before you make a dismissal case against a former employer, you need to determine what sort of case you need to make. This can be difficult without legal advice, so we’d recommend speaking with an employment lawyer if you need more information. As well as this, we’ve provided a quick outline of the main types of illegal dismissal, with the aim of giving you a solid knowledge base to start with.
What Is Unfair Dismissal?
To start with, let’s look at unfair dismissal. To keep things simple, unfair dismissal refers to the termination of employment without good reason or in an unfair or harsh manner. This could include:
Being fired because something unrelated to your job and workplace, including personal issues.
Being dismissed unexpectedly without being told why.
Having your employment terminated due to performance or workplace issues that you haven’t been given the chance to fix.
As you can imagine, the scope of unfair dismissals is wide, and each case is therefore treated on an individual basis by the Australian Fair Work Commission.
If you have recently lost your job and don’t know why, or think that you’ve been dismissed unfairly, there are things you can do about it. You may want to consult employment lawyers who will be able to tell you if you have any hope of getting your job back or of being compensated for wrongful dismissal.
What is unfair dismissal
It is important to understand exactly what unfair dismissal is. The definition may be different depending on what Australian state you are in. In Western Australia unfair dismissal is said to occur when an employee’s dismissal is oppressive, harsh or unfair. An example of this would be when there was no cause for the dismissal, or if the reason for the dismissal was not sufficient to have that result.
It could be that the employee was alleged to have performed poorly, accused of some misconduct, or that dismissal was inappropriate to the offence. Or it could be that the employee was given no chance to explain their alleged action or to prove it was false.
Who can make a claim for unfair dismissal?
In Western Australia, you have to make a legal claim through Western Australian Industrial Relations Commission (WAIRC). The person who can make a claim must:
Have been employed under the state system
Have earned less than $155,800 per year if not employed under an award
Have been dismissed or forced to resign
What happens then?
Legal advisors will advise you to make a claim within 28 days if possible. It costs $50 to lodge a complaint and you will have to provide certain documents. The WAIRC will look into the claim and if they are satisfied you have a case, will set a date for a conciliation conference. This potentially avoids going to court, a lengthy and costly procedure.
The meetings are usually held in Perth or at certain regional centres and each person has to meet their own costs to get there. Notification of dates and times will be given via snail mail, or in the case of urgency, by telephone or email.