Unfair Dismissal Claims - NSW
Being unfairly dismissed from your employment can place a lot of stress on you and your family... If your unfair dismissal is for reason of misconduct or poor work performance, it also can have an impact on your ability to obtain new employment and maintain your regular lifestyle.
Although we can't alleviate the stress you may be experiencing, we may be able to help you receive some compensation, or have your sacking converted to a resignation and a Statement of Service issued to you which should place you in a better position to get your career back on track. However, it's important you make your unfair dismissal claim within the strict time limit of 21 days from the date of your dismissal.
What type of claim am I eligible for?
You also should be aware that you may have available to you more options than just an unfair dismissal claim. These other types of claims could entitle you to much more compensation than an unfair dismissal claim, because some of these claims have uncapped compensation. You could have a:
If you have one of these other claims, you need to be careful not to commence, or settle, an unfair dismissal claim first, as it could prevent you from making the other claim. That is why it's important to speak to a lawyer before lodging your unfair dismissal claim with the Fair Work Commission (FWC).
What do I do now? What are the costs involved?
If you have been terminated and you think the circumstances are unfair, unlawful or in breach of your contract, one of our experienced team's members can provide you with a preliminary assessment of your circumstances to assist you to decide which path to take.
The preliminary assessment does not involve the provision of a comprehensive advice about your circumstances, rather it's a twenty minute telephone conference with one of our team members at a pre-arranged time to assist you to decide which path to take.
Frequently Asked Questions
Please read our FAQs below before getting in touch with us.
If your employer has broken the law in dismissing you or they have breached your employment contract, you may be eligible to lodge an unfair dismissal claim under the Fair Work Act 2009 (Cth).
Common situations in which a dismissal is deemed unfair:
In unique circumstances, there are also a number of other considerations the Fair Work Commission (FWC) makes when deciding if a dismissal was unfair. If your dismissal does not fall into one of the common situations listed above, and you still believe it to be unfair, you should seek legal advice immediately.
In order to be eligible to make an unfair dismissal claim in NSW you must fall within the scope outlined within the Fair Work Act 2009 (Cth). This means:
You will not be eligible if:
The best way to determine if you are eligible is to take this online quiz: click here
It is common for employers to dismiss employees on the basis of redundancy and use this as a valid reason for the dismissal. However, this can only legally occur if your position was genuinely made redundant. This means:
The law that governs redundancy and unfair dismissal is complex and, in most cases, requires interpretation from a person or entity that has experience in this area of Employment Law. If you have any doubts about your eligibility you should seek legal advice immediately, as a strict time limit of 21 days does apply.
Yes, in some cases if you have resigned you may still be eligible to make an unfair dismissal claim. This is when a 'Constructive Dismissal' occurs. A constructive dismissal is when the employee, because of the conduct or actions of their employer, is left with no other choice but to resign. The single most common situation that this occurs in is when an employer gives their employee an ultimatum by telling them that they must resign or be sacked. Again, this is another complex area of Employment Law that requires legal advice to determine eligibility.
An employee who is not eligible to make an unfair dismissal claim may still be able to make an Unlawful Termination Claim (also called a General Protections Claim). This type of claim does not look at whether the dismissal itself was unreasonable, unjust or unfair. Instead it looks at whether the reason behind the dismissal was contray to the law (unlawful).
Common situations in which a termination is deemed unlawful:
There have been some recent changes to the law regarding the time limits for lodging this type of claim, click here to find out more information.
Generally, there are two outcomes for unfair dismissal claims: reinstatement or compensation. However, reinstatement rarely occurs. The maximum compensation payable is capped at six months pay (read this article) This will generally only be awarded in the most serious of cases. If the employee is reinstated, they may still be eligible to receive "back pay" for the period of unemployment from the date of dismissal to the date of reinstatement.
Very strict, however, there have been cases where the FWC has extended the time limit, but only in exceptional circumstances. If the time limit has passed and you still want to lodge an unfair dismissal claim, you should seek legal advice immediately to determine if your situation might qualify as an exceptional circumstance.
The first step you should take is contacting the FWC (http://www.fwc.gov.au - 1300 799 675), who are the national workplace relations tribunal. If it looks like you have a viable unfair dismissal claim, the FWC will advise you to seek legal advice - which is when you get in contact with us.
If your employer, by dismissing you, has breached one or more of the terms of your employment contract (whether or not that contract is in writing) you may have a breach of contract claim.
If your employer has dismissed you merely because you exercised, or sought to exercise, a workplace right (e.g. to take sick leave) you may have an adverse action claim.
If your employer discriminated against you by terminating you because of one or more of your personal attributes. Your personal attributes include your: race; skin colour; social origin; gender; sexual preference; age; physical or mental disability; marital status; family or carer responsibilities; pregnancy; religion; or political opinion.
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