Losing your job is one of the most stressful events an individual can experience. However, there is little time to sit and reflect – if a dismissal feels ‘unfair’, you need to act quickly.

If you believe you have been unfairly dismissed, here are the five most critical things you need to know to protect your rights.

1. The clock is ticking

Under the Fair Work Act 2009 (Cth), you have 21 calendar days from the date your dismissal took effect to lodge an application with the Fair Work Commission.

This deadline is strictly enforced. While the Commission can grant extensions in ‘exceptional circumstances’, these are rare and the Commission will usually ask you to account for each day that you are out of time. Ignorance of the timeframe is no excuse and the shock and upset that can accompany a dismissal, will rarely be severe enough to qualify as ‘exceptional’.

If you miss this window, you may lose your right to seek a remedy entirely.

Even if you are negotiating with your employer or waiting for a final pay check, do not let the 21 day deadline pass, if you are considering challenging the dismissal.

2. Check Your Eligibility Early

Not every employee is eligible to make an unfair dismissal claim. To be protected from unfair dismissal under the Fair Work Act, you generally must a number of criteria including:

• you must have worked for at least the minimum employment period – which is 6 months for most employees, or 12 months if your employer is a small business employer that engages fewer than 15 employees;
• you must earn less than the high-income threshold, or be covered by a modern award or enterprise agreement; and
• you must be an employee, not an independent contractor.

3. Was it ‘Harsh, Unjust, or Unreasonable’?

The Fair Work Commission doesn’t just look at why you were dismissed, but how it happened. A dismissal is considered unfair if it was harsh, unjust, or unreasonable. The Commission considers a range of factors, including:

• whether there was a valid reason related to your capacity or conduct;
• whether you were notified of that reason and given an opportunity to respond;
• whether you were allowed to have a support person present during discussions; and
• if the dismissal related to performance, whether you had been warned previously.

4. Small Business Rules are Different

If you worked for a business with fewer than 15 employees, different rules may apply. Small business employers should follow the Small Business Fair Dismissal Code, when terminating an employee.

If a small business employer can prove they followed this Code, the dismissal will generally be found to be fair.

5. What Can You Actually Get?

If your claim is successful, the primary remedy is reinstatement (getting your job back) ideally with orders that maintain continuity of service (meaning it was like you were employed this whole time). However, if reinstatement is not appropriate—which is common when both parties consider that the relationship has broken down—the Commission may award compensation instead.

The vast majority of unfair dismissal matters settle at the conciliation stage of proceedings, where the parties have an opportunity to discuss the matters in dispute and attempt to reach an agreement to settle the matter. Reinstatement is almost never achieved at conciliation – as it requires the agreement of both parties – however, the payment of compensation, the provision of a statement of service, and/or a commitment to respond to reference checks in a prescribed matter, are all potential outcomes from the conciliation conference.

How We Can Help

Navigating a claim while dealing with the emotional fallout of a termination is exhausting. At Workplace Allies Ltd, we specialise in helping employees (and employers) understand their rights and reach fair outcomes.

Think you might have a claim? Don’t wait until day 20. Contact our team today for a confidential consultation to discuss your options.