According to the Holmes and Rahe Stress Scale, losing your job ranks eight out of ten on the list of life’s most stressful events. But when it is unexpected, or happens as a result of something that seems unfair, it can be even more traumatic.
In the 2016-2017 financial year, 11,160 cases of unfair dismissal were brought against employers across Australia. Of these, 2,280 failed to settle, while 8,800 settled through a combination of monetary and reinstatement agreements.
If you have been dismissed from your job, how do you know if it is unfair, and whether you are entitled to compensation or reinstatement (getting your job back)?
William Ward is Special Counsel for the Employment, Industrial Relations and Safety team at Meyer Vandenberg Lawyers, and one of only three accredited workplace relations specialists in the ACT. He has overseen hundreds of unfair dismissal cases, and says that while each case is different, there are two main things the Fair Work Commission (FWC) considers when trying to decide if a dismissal is unfair.
“The Fair Work Act defines unfair dismissal as dismissal that is harsh, unjust or unreasonable,” says William. “Then, there are two main arms to determining whether a dismissal was harsh, unjust or unreasonable: substantively unfair or procedurally unfair.
“Substantively unfair relates to the reason for the dismissal, and whether it justified the dismissal. For instance, being dismissed for being five minutes late, or enquiring about your employment or pay conditions would be substantively unfair.
“Procedural unfairness relates to when the employer did not follow a fair process in relation to the dismissal, such as you weren’t given proper warnings to address performance concerns, or a chance to explain yourself regarding certain actions.
“For example, if CCTV footage captures a worker taking money from petty cash, the employee cannot simply be terminated on the spot. They must be given a chance to explain why they did what they did. They may have been going to buy milk for the office, so instant dismissal would be considered both substantively and procedurally unfair.”
William says it’s important to distinguish between unfair dismissals and other possible types of claims that might also be available following a dismissal, such as a General Protections or discrimination claim.
“Quite often, employees are able to bring more than one type of claim against their employer, however, they must elect which claim best suits their situation. It may be unfair dismissal, or it may be a straight up discrimination case for the Australia Human Rights Commission – such as being dismissed for becoming pregnant, homosexual, of a particular race or religion, and so on.
“Not all employees are able to claim unfair dismissal either. The Fair Work Act distinguishes between small employers (less than 15 staff) and large employers (more than 15 staff). If you work for a small employer and have not been employed for at least 12 months, you cannot bring an unfair dismissal case against your employer. For large employers, an employee needs to be employed for at least six months.
“Different rules also apply in different jurisdictions. For instance, everyone employed in the ACT, whether public or private sector, is covered by the Fair Work Act. Similarly, most employees in NSW are also covered by the Fair Work Act. But a NSW public sector employee, such as a council or hospital worker employed in Yass or Queanbeyan is not covered. They would have to bring a claim under the NSW Industrial Relations Act.
“If you earn more than $145,400 and are not covered by an award or enterprise agreement, you cannot bring an unfair dismissal case. You may be able to bring another case though, such as a General Protections claim (covering things such as disability, political opinion, social origin, and so on).
“If you’re at the end of a fixed term contract, you can’t claim unfair dismissal. However, if you’ve been on a one year fixed term contract and it’s been renewed every year for several years, you may have a case.”
If you believe you have been unfairly dismissed, William recommends:
- Act fast. After dismissal, you generally only have 21 days to bring a case against your employer. You can contact an employment lawyer or the Fair Work Commission and lodge a claim directly. The employer will then be notified and can put together their response.
- Collect evidence. It’s important to document what happened, and collect evidence or testimony from those who may have witnessed any incidents. Each party can say whatever they like, and while you may believe you have a case, your employer may think nothing of it. Only evidence will help to decide who is right or wrong.
- Telephone conciliation. The Fair Work Commission will organise a telephone conciliation between parties and a mediator, which allows both parties to state their position. Quite often this results in a settlement. If it doesn’t settle, it will go to an arbitrated hearing in front of a Fair Work Commission member. This is similar to a court hearing, though not as formal. This is also when you will need to submit evidence, ask witnesses to provide statements, and so on.
- Decision. The Fair Work Commission member will weigh the evidence and hand down their decision. If the employee is successful, they may make an order for compensation or reinstatement. If they believe there was no unfair dismissal, the case will be dismissed.
In terms of compensation, the maximum compensation is up to six months’ pay or $72,700 (whichever is less). If you only worked a couple of days a week, keep in mind that you may be fighting for very little money, unless your main goal is to get your job back.
Each side must cover the cost of their own legal fees (except where a side acts vexatiously or without reasonable cause), which can be quite expensive if the matter goes to arbitration.
William says seeing a lawyer early can save employers and employees a lot in the long run.
“We often speak with employees who have recently been dismissed, and offer advice on how best to proceed. We can also offer employers advice if they want to dismiss an employee, and are not sure if it is lawful. This early intervention can save a lot of time, stress and money in the long term.”
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Original Article published by Rachel Ziv on The RiotACT.