8 Ways Your Dismissal Could Be Unfair

Losing Your Job Is Hard But You Can Do Something

If you have lost your job, it is no doubt a difficult time in your life.

The MKI Legal team have advised thousands of employees who have been terminated from their employment. We understand how you feel as many of our clients have felt the same way. A lot of our clients initially:

experienced anxiety from losing their regular source of income;
were worried how they’re going to pay the bills or mortgage;
were concerned about what their children or loved ones would think.

However we find that our clients who have been unfairly dismissed who took action to challenge their unfair termination were able to:

move on with life by knowing they corrected a wrong;
get financial compensation to help pay the bills until they find a new job;protect their reputation by getting their dismissal
withdrawn, so they could say they resigned instead of saying they were fired.

Just because you have been dismissed from your job, does not mean you have to accept it. There are laws in Australia protect employees from unjust dismissals.

At MKI Legal we help employees get justice.

This article provides a detailed analysis on the unfair dismissal laws in Australia. However, unfair dismissal is not the only way of challenging your termination- there may be other ways if your circumstances do not fit any of these criteria.

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Also remember, this is not an exhaustive list of all the circumstances where a dismissal could be against the law, so you could have a claim even if your facts don’t fit into any of these categories.

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An employee may be able to file an unfair dismissal application if they believe they have been unfairly dismissed from employment.

Requirements to file an unfair dismissal

Not everyone is eligible to lodge an unfair dismissal claim.

These 6 requirements must be satisfied before someone can file an unfair dismissal claim. These are:

1. The person was an employee as opposed to a contractor

2. The employee was dismissed. If the employee resigned, the only way the employee can lodge an unfair dismissal claim is if the employee had no choice but to resign because of the unreasonable conduct of the employer. If the employee simply resigned, the employee cannot lodge an unfair dismissal application.

3. The employee has to file within 21 days from when their employment ended. This is usually their last day at work. If their last day was longer than 21 days ago, they cannot proceed with an unfair dismissal claim without special permission from the Commission. Such permission is hard to get.

4. Minimum period of service requirement test . This test is based on the amount of employees the company had at the time of dismissal, and is as follows:

If the company had 15 or more employees at the time of dismissal (including a person terminated), in order to file an unfair dismissal claim the employee had to be employed for more than 6 months
if the company had 14 or less employees at the time of dismissal (including the person terminated), the employee had to be employed for more than 12 months.

5. Type of employment test as follows:

Full time or part-time employees automatically pass this test.
With casuals, casuals need to work regular hours for the minimum period of service mention above. If a casual works irregular hours they do not qualify for an unfair dismissal claim.

6. Income test as follows (from 1 July 2020):

if an employee earns less than $153,600 per year (excluding superannuation), they qualify for unfair dismissal
if an employer earns more than $153,600 (excluding superannuation) a year and they are covered by a modern award or enterprise bargaining agreement, they qualify for unfair dismissal.
if an employee earns more than $153,600 per year, and they are NOT covered by Modern award or enterprise bargaining agreement, they cannot lodge an unfair dismissal claim

What makes a dismissal unfair?

These are some examples of situations where someone may be successful in an unfair dismissal claim.

# 1 Dismissed for something they did not do.

In its simplest form, the employee was dismissed because of some wrongdoing alleged by the employer.

If it turns out that this allegation is untrue, and the employee did not engage any wrongdoing, the employee will be successful in an unfair dismissal claim.

#2 Dismissal Not Warranted.

If the employee did something wrong, such as not perform their job properly or engaged in some form of misconduct, the employee can still be successful in an unfair dismissal claim if the wrongdoing by the employee was not serious enough to justify dismissing the employee.

In other words, the employee should not have been dismissed but instead should have been given a warning, further training or something else.

If this is the case, the employee will be successful in an unfair dismissal claim.

# 3 Dismissal for underperforming not justified

If an employee was dismissed because the employee was not performing adequately their job, the dismissal could be unfair if any of the following has occurred

1. They did not actually under-perform at their job. In other words, they performed adequately in their job and the employee disputes the allegations by the employer that the job was not done correctly.

2. If the employee has under performed, but it is excusable because they were not given adequate training or support.

3. If employee has under performed, but the employee was not given a sufficient opportunity to improve before they were terminated. For example, they were not warned if they do not improve their performance they could be dismissed or were not given a sufficient chance to improve.

# 4 The employee has been treated differently

At law this is known as ‘differential treatment’.

If employee has engaged in some form of wrongdoing and they were fired because of it, then it could be unfair dismissal if other employees did something similar that the employer you did, but those other employees we’re not fired.

In other words the employer treated the dismissed employee differently to other employees.

#5 The redundancy was not genuine

A redundancy is a special type of termination where an employee is dismissed because the employer no longer requires that position to be performed by anyone. In other words, the job is no longer needed. This is usually because of a downturn in business or because of new technology being introduced which replaces human labour.

For example, if a restaurant has 3 chefs but due to a downturn in business, the restaurant no longer needs 3 chefs but only requires 2 chefs. In this situation, one of the positions of chef is made redundant.

If an employee has been made redundant, the employee will succeed in an unfair dismissal claim if the employee can show any one of the following:

Their job was still required. This means essentially that the business cannot function without the employee’s job being performed by someone.
The Employee’s job is no longer required, but the employee could have been given another job within the organisation (or in another business within the corporate group) that the employee was capable of doing.
• The third reason is if the business has failed to properly discuss the redundancy with the employee before the employee was made redundant. This is known as failure to comply with “consultation requirements”. This third reason only applies if the employee is covered by a modern award or enterprise bargaining agreement.

# 6 No opportunity to respond

Before an employee can be dismissed for any wrongdoing or failure to do the job properly, the employee must be given a reasonable opportunity to have their say.

The way this works in practice is as follows:

The employer may write a letter to the employee setting out the allegations against them and give the employee a chance to respond in writing to the allegations. This is done before the employee is dismissed.
Another way is the business will have a meeting with the employee to go through the allegations and give the employee a chance to respond to them
Sometimes it’s a combination of meetings with the employee and giving the employee a chance to respond in writing.

The issue here is whether the employee had a chance to have their say about the allegations against them before they were dismissed.

If the employee did not have a chance to have their say before dismissal, then they will be successful in an unfair dismissal claim

#7 Fired for no reason at all

Sometimes employees are fired out of the blue and for no reason at all.

If an employee has no idea why they were fired, then they would likely be successful in an unfair dismissal claim.

#8 Asked for a support person but were not allowed one

Before an employee is dismissed, there is usually meetings with the employee to discuss the allegations against them.

When it comes to meetings where termination of employment is a possibility, the employee has the right to have a support person attend these meetings (e.g the meetings where the employee has an opportunity to have their say).

A support person can be a family member, friend or a work colleague. A support person attends the meeting with the employee to provide moral and emotional support while the employee is dealing with the difficult task of responding to allegations.

A support person does not speak on the employee’s behalf but attends the meeting with employee and provides emotional support to the employee.

If the employee ask for a support person to attend these meetings, but the employer refused a support person permission to attend, and there was no reasonable basis for such refusal, the employee will be successful in their unfair dismissal application.

Do any of these apply to you? Call For Free Discussion

If any of these circumstances apply to you, you may have an unfair dismissal claim.

Contact our office for a free discussion about your circumstances to find out what you could be entitled to.

Hurry you only have 21 days.

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There are other claims employees can make that:

have no requirement for a minimum length of service, so you can file these even if you’ve been employed for less than 6 months;
have no income restrictions, so you can make it even if you earn more than $142,000 per annum.

Even if you have an unfair dismissal claim, you should explore whether you have this other type of claim – as it could be more advantageous to you.

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