Employment Law

QLD: Understanding Unfair Dismissal

Have you recently lost your job?

Losing your job can be a stressful shock for many QLD’ers. We rely on our work for financial security and a means of livelihood. It is important you understand your rights if you have been dismissed from your place of employment, especially if you believe you may have been unfairly dismissed by your employer.

What is unfair dismissal? Have I been unfairly dismissed?

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. A dismissal would also be deemed as unfair should it be considered an illegitimate redundancy.

Harsh penalties can ensue if an employer is found to have unfairly dismissed an employee. Such penalties include prosecution. Notwithstanding the fact that if can be detrimental to a business.

Initially, you should consider if you were dismissed:

  • based on allegations about your conduct which were false or incorrect
  • based on poor performance, but were not given clear warnings or opportunities to improve your performance
  • because an injury or illness which you were still recovering from
  • because your position has been given to another person
  • without being given a clear reason, or have not been given a fair chance to respond to the reasons for dismissal

These are just some instances of which would be considered as an unfair dismissal from a place of employment. You may be eligible to claim if:

  • You have been employed for more than six months;
  • You were not a casual employee or seasonal employee, contractor or labour hire employee;
  • Your employer was not a small business (less than 15 employees); and
  • Your employment was covered by an award or enterprise agreement, and you are not earning more than the “Unfair Dismissal High Income Threshold”.

Usually, before being able to legally dismiss you on the basis of your capacity to work or based on your conduct, an employer is required to give you a warning and a reasonable opportunity to correct your behaviour.

Small businesses and unfair dismissal

Since it can be quite tough at times for small business, they are exempt from the Fair Work Commission’s Unfair Dismissal Application. Employees of small businesses with fewer than 15 employees cannot claim unfair dismissal. Instead, the small business must demonstrate they comply with the Small Business Fair Dismissal Code.

Even if you are not eligible to make an unfair dismissal claim for one of the reasons listed earlier, you may have an alternative legal claim, so it is best to speak to experienced lawyers about your personal situation.

How do I raise an unfair dismissal claim?

If you would like to pursue a claim for unfair dismissal, you can make an application with the Fair Work Commission. It is important that all applications are made within 21 days of a termination taking effect. If you miss this three-week deadline, you are likely to become ineligible for any compensation.

Further support unfair dismissal

There is an abundance of useful resources provided online by the Fair Work Commission which will help you to determine if you can apply for unfair dismissal, including this unfair dismissal eligibility quiz.

If you are considering making an unfair dismissal claim or are unsure as to whether you were unfairly dismissed, we recommend you seek advice from an experienced employment solicitor as soon as possible to ensure you have the best chance of success.

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