Dismissal

The most common time a lawyer becomes involved in the employment relationship is when it goes wrong. This can happen when a person remains employed or around the termination of their employment. There are a number of legal options available to workers in such situations. We can provide advice and assist through these processes.

The three key claims are:

  • Unfair dismissal claims;
  • Adverse action claims;
  • Claims alleging prohibited discrimination or harassment.

Unfair Dismissal

The most well-known action arising from the termination of employment is an unfair dismissal claim. Unfair dismissals are a specific kind of claim brought in the Fair Work Commission. They are generally quick and informal claims. In many instances the matter is not complex enough to warrant legal representation. Unfair dismissal claims are useful for people who have been harshly treated and often enable recovery of sufficient compensation to meet bills and living expenses until other work can be obtained. They are however modest claims with most claims resolving after legal costs for something in the range of $7,000.00 to $15,000.00.

While the primary remedy for unfair dismissal is reinstatement, most claims settle for payment of money at a conciliation stage. In the event matters run to hearing, the remedy will be either reinstatement (which is very uncommon), or payment of compensation of up to 26 weeks pay.

Who Can Bring a Claim?

Not all employees are entitled to bring an unfair dismissal claims. Employees may bring a claim if they:

  • earn less than the high income threshold (currently $138,900 excluding superannuation) or are covered by an Award or agreement and
  • have been employed by the employer for at least 6 months.

The Fair Work Act provides that a dismissal is unfair if it is “harsh, unjust or unreasonable”. In practice, the primary focus of the Commission is to determine whether or not there was a ‘valid reason’ for the termination.

The Process

The process for an unfair dismissal claim generally involves:

  1. Within 21 days of the termination, proceedings must be commenced
  2. Within about a month of filing the matter will be subject to a conciliation conference which will attempt find a negotiated resolution. Negotiated resolutions generally involve the payment of money along with the execution of a deed containing releases along with confidentiality and non-disparagement obligations.
  3. In the event there is no negotiated resolution, the matter will be timetabled for hearing. This timetable will allow for the preparation of statements by both the employee and employer, an outline of submission, and potentially the production of documents.
  4. A hearing will occur before a member of the Fair Work Commission. Hearings generally take place about 3 months after the termination. Following the hearing the member will make a decision as to whether the dismissal was, or was not unfair. In the event there is a finding the dismissal was unfair, the decision will also provide for compensation or, in rare occasions, reinstatement.

Links and Resources

Unfair Dismissal Application Form 
The Fair Work Commission website contains a range of useful information about unfair dismissal claims
• How do unfair dismissal claims operate? – A Fair Work Commission youtube video
• When should I get a lawyer involved in my employment dispute [blog post]

Costs and our Fees

We do not act on a “no-win no fee” basis for unfair dismissal claims. Our fees are based on the time spent on the matter. In general, our fees to conduct an unfair dismissal to conciliation are in the order of $2,500 – $3,000. Further costs are payable to conduct the matter to final hearing if it does not resolve at conciliation.  We provide a detailed costs disclosure containing estimates prior to doing work.

Unless a party acts unreasonably, there is no scope to have costs paid by the other side. This means that in almost all cases each side pays their own costs.

Adverse Action Claims

Adverse action claims are claims brought under the Fair Work Act. Adverse action claims involve allegations that a person has been treated unfairly (including by having their employment terminated) as a result of:

  • a prohibited reason such as sex, race, age; or
  • a person having exercised or proposed to exercise a workplace right;
  • a person having exercised or proposed to exercise an industrial right, such as joined or participated in union activities.

Adverse action claims are more significant and costlier than unfair dismissal claims. Unlike unfair dismissal there is no cap on the amount of compensation that can be recovered and compensation can be recovered, if appropriate, for pain and suffering.

Adverse action claims must be commenced within 21 days of the termination of employment or 6 years if there is no allegation of termination.

Who Can Bring a Claim?

All employees, along with potential employees and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or as to earnings.

The Process

The process for an adverse action claim differs depending on whether it involves the termination of employment.

For claims involving termination:

  1. Within 21 days of the termination, proceedings must be commenced in the Fair Work Commission.
  2. Within about a six weeks of filing the matter will be subject to a conciliation conference which will attempt find a negotiated resolution
  3. In the event there is no negotiated resolution, the Commission will issue a certificate. Following the certificate, the applicant can commence proceedings in the Federal Court or Federal Circuit Court. Alternatively, the parties can agree to have the matter dealt with by the Fair Work Commission.
  4. If the parties elect to have the matter be dealt with by the Fair Work Commission, the matter will be timetabled for hearing in a manner similar to that used for unfair dismissals. This timetable will allow for the preparation of statements by both the employee and employer, an outline of submission and potentially the production of documents. A hearing will occur before a member of the Fair Work Commission. Hearings generally take place about 3 to 6 months after the termination.
  5. If the applicant elects to commence proceedings in the Federal Circuit Court or Federal Court, the matter will be listed for directions. The directions will cover the preparation of pleadings, evidence, usually in affidavit form, and other steps.  Commonly, Orders for compulsory mediation will be made.  The matter will then be listed for trial.
  6. The trial in the matter will take place about twelve months after the termination.  Witnesses will be cross examined and the judge will make a decision as to whether adverse action has taken place and the appropriate orders for compensation, penalties etc, that may arise.

Links and Resources

Our Fees

We do not act on a no-win, no fee basis in adverse action claims. Our fees are based on the time spent on the matter. In general, our fees to conduct an unfair dismissal to conciliation are in the order of $2,500 – $3,000. Further costs are payable to conduct the matter to final hearing if it does not resolve at conciliation. We provide a detailed costs disclosure containing estimates prior to doing work.

Unless a party acts unreasonably, there is no scope to have costs paid by the other side. This means that in almost all cases each side pays their own costs.

Discrimination Claims

For more information about discrimination claims see our Harassment and Discrimination page.

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