One of the most common times a lawyer becomes involved in the employment relationship is when it goes wrong.
The key claims are:
- Unfair dismissal claims;
- Adverse action claims; and
- Termination in breach of contract.
We are able to provide assistance in all claims concerning termination.
Contact us for a free initial assessment.
Unfair dismissal
Unfair dismissal is “harsh, unjust, or unreasonable” termination of employment
An unfair dismissal claim is the most well-known action arising from the termination of employment.
Most unfair dismissal claims are brought in the Fair Work Commission. For some workers, such as those employed in the public sector or by local councils, the unfair dismissal claims are brought in state Industrial Relations Commissions.
Unfair dismissals are a specific kind of claim that are generally quick and informal. In many instances, the matters legal representation increases costs without commensurate benefit.
Unfair dismissal claims are useful for people who have been harshly treated and who are often unable to recover sufficient compensation to meet bills and living expenses until other work can be found. While reinstatement is a potential remedy, most claims resolve for payments in the range of $7,000.00 to $20,000.00.
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 claim. Under the Fair work Act provisions, employees may bring a claim if they:
- earn less than the high income threshold (currently $158,500 excluding superannuation) or are covered by an Award or enterprise 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:
- Commencing proceedings within 21 days from the date of termination;
- Within about a month from filing, the matter will be subject to a conciliation conference, in which the parties will attempt to find a negotiated resolution. Negotiated resolutions generally involve the payment of money along with the execution of a deed containing releases along and confidentiality and non-disparagement obligations.
- In the event there is no negotiated resolution, the matter will be timetabled for a hearing. This timetable will allow for the preparation of statements by both the employee and employer, an outline of submissions, and potentially the production of documents.
- The 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 of the Commission will make a decision as to whether the dismissal was unfair. If there is a finding that the dismissal was unfair, the decision will also provide for compensation or, in rare occasions, reinstatement.
Links and Resources
Costs and our Fees
Segelov Taylor Lawyers 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
Adverse action claims involving termination arise where there a person is dismissed for a prohibited reason
- 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.
Who Can Bring a Claim?
All employees, potential employees, and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or threshold as to earnings.The Process
The process for an adverse action claim differs depending on whether the claim involves the termination of employment. For claims involving termination:- Proceedings must be commenced in the Fair Work Commission within 21 days from the date of termination;
- Within about six weeks from filing, the matter will be subjected to a conciliation conference, where the parties will attempt to come up with a negotiated resolution
- If 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.
- 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 submissions, 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 date of termination.
- 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. The trial generally takes place about twelve months after the date of termination and witnesses will be examined and cross examined. The judge will then make a decision as to whether adverse action has taken place. If adverse action is found to have happened, the appropriate orders for compensation and penalties will be made as well.
Termination in breach of contract
While a claim for termination in breach of contract is rare, a successful claim will allow you to recover damages amounting to money you would have earned if not for the termination
Information Videos
Employment & Industrial Law
David Taylor from Segelov Taylor Lawyer speaks about when you would be eligible for an unfair dismissal claim in an employment setting.
David Taylor, Principal at Segelov Taylor Lawyers gives an overview of what constitutes unfair dismissal in employment law.
David Taylor, Principal of Segelov Taylor Lawyers speaks about the process of making an unfair dismissal claim.
David Taylor, Principal at Segelov Taylor Lawyers explains what remedies you may be entitled to in an unfair dismissal claim.
David Taylor, Principal at Segelov Taylor Lawyers discusses adverse action in employment law.
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