Unfair Dismissal | Newcastle & Central Coast Lawyers

How do I know if I have been unfairly dismissed?

Determining if you have a claim can be complex. Our lawyers can review the circumstances leading up to your dismissal and determine if it is likely to be deemed unfair. 

Can I make a claim for unfair dismissal?

If it is deemed that your dismissal was unfair you can make an application to the Fair Work Commission to be reinstated or compensated for losses. Public servants need to lodge forms with the Industrial Relations Commission of NSW.  

What should I do if I have been unfairly dismissed?

You will need to fill out and file an unfair dismissal claim form with the Fair Work Commission. The onus is on you to have the evidence to prove your dismissal was unfair. This is where a lawyer with expertise in unfair dismissal can be of assistance. They can review the information provided and ascertain what made the dismissal unfair. The two main points of contention are whether your employer followed the right procedure or if there was a valid reason to dismiss you from work.   

How do I prepare an unfair dismissal claim?

Making an unfair dismissal claim is a legal process so you need to take the process seriously and follow the procedures. You will need to fill out the application (Form F2) which can be found on the Fair Work Commission website. You will need to fill out the form with as much detail as possible, mark questions as ‘not relevant’ if they have no bearing on your case and answer every question to prevent your application from being delayed. If you are unsure about the process, Fourtree Lawyers can prepare and lodge the claim for you.

Where do I lodge an unfair dismissal claim?

If you were working in NSW claims can be made through the Fair Work Commission. Public service employees need to make a claim through the Industrial Relations Commission of NSW. 

If I am dismissed for serious misconduct can I make a claim?

Yes. You can still make an application if these allegations can’t be substantiated or if the employee did not follow due process. 

Do I need to talk to my former employer?

No, copies of unfair dismissal applications will be sent to your employer by the Commission.  

Do I need a lawyer for an unfair dismissal claim?

Legal proceedings can be extremely complex and stressful. An experienced lawyer can help you navigate the process, review your case, provide expert advice concerning the likelihood of winning the case and give you the best chance of positive outcome.  They will let you know if you have been unfairly dismissed, if you have a case and should lodge an application, what to say on the application form and what is likely to happen. 

If you think you have been unfairly dismissed it is important to get legal advice to determine if you can be compensated for losses incurred; clear your name if the allegations are false and/or be reinstated.

What is the proper procedure for dismissal?

An employee needs to be informed, either in writing or verbally, why they risk losing their job.

The employee needs to be given a chance to respond to the warning and rectify the problem, including extra training and a clearer understanding of job expectations.

Can an employer object to an unfair dismissal claim?

The Fair Work Commission can only deal with unfair dismissal applications that fall within its powers, also known as its 'jurisdiction'.

If an employer believes that the Commission does not have jurisdiction to deal with the unfair dismissal application, or the person is not eligible to make the application, then the employer can lodge a jurisdictional objection.

What is a jurisdictional objection?

A jurisdictional objection can be lodged by an employer if the applicant:

• was not an employee (e.g. they were an independent contractor or volunteer)
• was not dismissed or resigned voluntarily
• was made genuinely redundant
• earned over the high-income threshold and was not covered by a modern award or employed under the terms of an enterprise agreement
• was employed for a specified period, task, seasonal contract or traineeship arrangement and was dismissed at the end of the period, task, season or arrangement
• was not a national system employee
• was a casual employee and was not regularly and systematically employed and had no reasonable expectation of continuing employment
• made the application against an entity that is not the employer
• made multiple applications regarding the dismissal
• worked for the employer for less than six months, or less than one year if the employer was a small business employer, or
• lodged their application to the Commission outside the specified time limit and there are no exceptional circumstances permitting an extension of time.

By lodging a jurisdictional objection, the employer is saying that the Commission does not have the power to deal with the claim.

What does termination at the employer’s initiative mean?

Termination is at the employer's initiative when:

• the employer's action 'directly and consequentially' results in the termination of employment, and
• had the employer not taken this action, the employee would have remained employed.

There must be action by the employer that either intends to bring the relationship to an end or has that probable result.

Whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration. It is important to examine all of the circumstances, including the conduct of the employer and the employee. 

What is abandonment of employment?

‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend their place of employment without proper excuse or explanation. As a result, he shows an unwillingness or inability to substantially perform their duties or obligations under the employment contract.

This may be termed a ‘renunciation’ of the employment contract.

The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

Renunciation is a species of repudiation that entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation that terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

What are the grounds for instant dismissal?

An employee can be dismissed for alleged serious misconduct without notice. These can include theft, fraud, violence, intoxication and serious breaches of occupational health and safety procedures.

Do I need a lawyer to defend an unfair dismissal claim?

Unfair dismissal proceedings can be costly and time-consuming. Our experienced lawyers can help you navigate the process by reviewing the case against you and responding to the complaints made.

If you receive a copy of an unfair dismissal claim from the Fair Work Commission, you must respond to the allegations. It is a legal proceeding and needs to be dealt with accordingly.

Our lawyers can look at the case in hand, review your processes and advise on the best way to proceed. The onus is on you to provide the evidence to object to and hopefully have the claim dismissed.