Unfairly Dismissed

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It is important that you are aware of your rights and obligations in relation to your employment, particularly when it is about to begin or end.

What terms should be placed in your employment contract?

Legislation, awards or enterprise agreements may provide you with entitlements and obligations which should be recorded in your contract. It is better to clearly determine what your conditions of employment are when you start your employment than to become involved in a dispute over your conditions when your employment ends or you are experiencing difficulty in your workplace.

What are your entitlements under your award or contract?

Your entitlements will depend upon your personal circumstances. Sometimes your entitlements can only be determined by reference to your contract, to legislation and to an award or enterprise agreement.

What if you are having difficulty at work?

Most people do not seek legal advice until after their employment has been terminated. It is important that if you are having difficulty in the workplace that you first attempt to resolve it and, if that is unsuccessful, you should immediately seek legal advice. The Industrial Relations Commissions allow applications by employees who fear that their employment is in danger of being terminated. When such an application is made, it is common for the difficulty to be resolved between the employer and employee and for a termination to be avoided.

What action can be taken if you are terminated?

If your employment has been recently terminated, you may be entitled to bring proceedings before the Industrial Relations Commissions if the dismissal was unfair. In most cases, we will be able to tell you if your claim will succeed after you discuss your circumstances with us. We offer free first interviews for this practice area so there may be no fee for the first interview if you do not have a claim.

When is a dismissal unfair / unlawful?

There are a number of factors which make a dismissal unfair. If you have been terminated because of your conduct, you should always receive details of any allegations against you and should always have an opportunity to put your side of the story to those allegations. Except in situations involving very serious misconduct, you should always receive a clear warning explaining that if you continue with a particular course of conduct then your employment will be terminated. If you have been terminated for redundancy, there are a broad range of factors to consider and we therefore recommend that you obtain advice on your employer’s selection criteria for redundancy and the level of any redundancy payment.

What are you entitled to claim for?

You are entitled to claim for damages. You can also apply to be reinstated to your old position or to be placed in another position with your employer.

What rights do casual or part-time workers have?

In general, casual workers are not able to make a claim with the Industrial Relations Commission. However, recent cases suggest that both part-time workers and casual workers who have worked regular shifts over a period of time may have the ability to bring an application for unfair dismissal. We recommend that you seek advice on your individual circumstances.

What happens when you lodge a claim?

Once your claim has been lodged, a conference before a commissioner will be scheduled within approximately one month. At that conference, the commissioner will act as a mediator and attempt to settle the dispute between the parties. If the matter is unable to be settled at the conference, the commissioner will refer the matter for a trial. A trial is a formal hearing where the Industrial Relations Commission can award damages or, in certain circumstances, order that the employee be returned to their former position.

When should you seek legal advice?

If your employment is terminated, you must act quickly as an unfair dismissal claim can only be lodged within 14 days of the termination taking effect. If you are seeking advice in relation to new employment, we recommend that you consult us prior to signing your contract.

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