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Unfair Dismissal & Fair Work Actions

Our lawyers can provide representation and advice to both employers and employees in relation to unfair dismissal and Fair Work Actions.

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Unfair dismissal and Fair Work actions - Why you need a lawyer

Financial Assets

Helping you understand your rights

It is important to understand your rights whether you are either an employee lodging an unfair dismissal claim or an employer subject to an unfair dismissal claim. We can help educate you on your rights and obligations within your particular company, tailoring our advice to suit the circumstances of your individual situation.

Timely Legal Services

Assisting you in understanding if your dismissal was unfair

Your termination as an employee may be deemed unfair if it was harsh, unjust or unreasonable. A lawyer can discuss the facts of your termination with you to determine whether your dismissal was unfair. If it was unfair, we can advise you on how to approach the Fair Work Commission with your case.

Dispute Resolution

Helping you avoid an unfair dismissal claim

Our lawyers can help you, as an employer, avoid unfair dismissal claims by having an employment contract, referencing your policies and procedures in the contract, outlining where your employees can improve and providing set times for them to improve. This can help you terminate employees without risking an unfair dismissal claim.

Guiding you through the process

Many unfair dismissal claims are resolved through negotiation, although sometimes court action may be required. Our experienced team of lawyers can guide you through every step of the process from disciplinary measures, conducting dispute resolution techniques and if required, finalisation of the court litigation process.

Frequently asked questions

In order to access the benefit of the unfair dismissal provisions under the Fair Work Act 2009 (Cth), an employee must have been employed by the employer for a duration in accordance with the below:

- If employers have more than 15 employees, you must have been employed for at least six months; or
- If employers have less than 15 employees, you must have been employed for at least 12 months.
In order to be eligible to commence unfair dismissal proceedings, a dismissal must have occurred. Such a dismissal must have been made by the employer, rather than a choice made by the employee. There is an exception to this rule in circumstances where the employee had no choice in resigning due to the conduct of their employer. For example, an employer engaging in conduct that results in the employee not properly being able to do their job. In these circumstances, where the employee may have resigned, the Fair Work Commission may hold that a constructive dismissal has occurred.
In order for dismissal to be deemed unfair, the dismissal could be characterised as at least one of the following:

- Harsh (where the dismissal was not a result of the employee’s misconduct and was considered an over-reaction);
- Unjust (if there was no misconduct by the employee or the misconduct was trivial); and
- Unreasonable (the employer’s decision to terminate the employee was unreasonable in all circumstances).
The Fair Work Commission may determine a dismissal to be harsh, unjust or unreasonable if:

- There was no valid reason for the dismissal relating to the employee’s capacity or conduct;
- The employee was not notified of the reason for their dismissal;
- The employee was not given an opportunity to respond to the reason provided;
- The employer refused to allow the employee to have a support person present at discussions relating to the dismissal; or
- No warnings were given previously in relation to the unsatisfactory performance.
The first thing the Fair Work Commission will consider in determining if a dismissal was unfair is whether a valid reason existed for the dismissal. Some examples of valid termination reasons include:

- Dishonest conduct and lying to superiors or co-workers;
- Embezzlement of money or theft of the employer’s or co-worker’s property;
- Endangering the safety of co-workers;
- Repeatedly breaching the policies and procedures of the employer;
- Abusing co-workers or clients;
- Failing to follow clear directions of a superior;
- Damaging the reputation of the employer;
- Continued poor performance despite being warned; and
- Being consistently absent from work without a valid reason.
A redundancy is only genuine if these three factors exist:

1. The employer no longer requires the employee’s job to be performed by anyone due to operational changes;

2. The employer complied with any redundancy provisions in the relevant modern award or enterprise agreement; and

3. It was impossible to re-deploy the employee into another job within the employer’s business
Strict time limits apply for employees that wish to lodge an unfair dismissal application. The application must be lodged within 21 days of the date upon which the dismissal took effect. There are only extremely limited exceptions to this rule, so it is important to seek legal advice as soon as possible to avoid running out of time.

Why choose us

We will tell you the truth at all times

We will be honest with you about your prospects of success, issues that arise or the commercial viability of your matter. The first time you come to see us, we will tell you whether you even need a lawyer.

We will respect you and your situation

Our job is not to judge anything you may have done. Our job is to guide your matter and actions moving forward to give you the best possible outcome for you, both legally and personally.

We will listen and understand your needs

We will hear not just what you want to achieve, but why you want to achieve it. We will tell you what you need to do to achieve the outcome you are after, legally, practically and emotionally.

We will stand by you all the way

Your matter doesn’t finish once a court order has been made. We will stay on your matter right up until all of the outstanding issues have been dealt with and the court orders are complied with.

We can help you through all aspects of employment law

Forge Legal’s employment lawyers are specialists in all areas of employment law and can assist you with all labour law matters.

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