Since December 2009 every State and Territory (other than Western Australia) has agreed to transfer their industrial relations powers to the National System other than in relation to State Government or Local Council employees. This means that everyone except State Government or Local Council employees or those employed in WA by sole traders or partnerships are covered by the National System.
National System
You will not be eligible to pursue a claim in the national system if you were:
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employed by a small business owner (a business with less than 15 employees) who followed the Small Business Unfair Dismissal Code
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an employee who earned more than $106,400 (if you earned more than this amount you may be able to pursue a breach of contract claim);
- an independent contractor;
- an employee that had been employed for less than 6 months;
- an employee who resigned and was not forced to do so by the conduct of your employer;
- employed under a contract for a specified period of time, a specified task, or the duration of a specified season and were dismissed at the end of the period, task or season;
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trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement;
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employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them
There are strict time limits within which you must bring an unfair dismissal claim. You must file your claim within 14 days of the date your dismissal took effect, failing which you lose your right to claim. You should therefore take prompt action and call Workers First on 1300 991 791 or complete our online enquiry form below.
What is Unlawful Termination?
If you were unfairly dismissed for an unlawful reason such as discrimination or because you were trying to exercise a workplace right then this is a breach of the general protections provisions under the Fair Work Act and you can commence a general protections application alleging dismissal. This is the equivalent of the old Unlawful Termination Claim.
Examples where the general protections provisions will apply are where you are dismissed because of a discriminatory reason like having an injury or being pregnant or where you are dismissed because you tried to query your pay or because you made a complaint at work about your conditions of employment or the actions of another co-worker.
If your dismissal was in breach of the general protections provisions then the employer is also exposed to fines under the Fair Work Act 2009 including the pecuniary penalty provisions which can result in a fine of up to $33,000 for corporate employers.
There are different time limits which apply in relation to general protections claims involving dismissal. You are allowed 60 days from the date the dismissal took effect to lodge your claim. You should however seek advice within the first 14 days to ensure your claim is truly a general protections claim as if it is not then you may lose any claim you have. To see if the general protections provisions apply to you call Workers First on 1300 991 791 or submit an online enquiry form below.
Remedies
Reinstatement with or without back pay is still the primary
remedy available. Compensation must not
exceed the lesser of 6 months’ pay or 50% x high income
threshold ($54,150 in 2009-2010).
In awarding compensation FWA must take into account the
viability of the employer’s enterprise; the length
of service; remuneration the person would have received; efforts
to mitigate; amount of remuneration
earned during the period after the dismissal; future loss of
earnings; and any other matters considered
relevant.
Compensation may be reduced if misconduct contributed to the
dismissal. Compensation for shock, distress
and humiliation must not be included in relation to the manner
of the dismissal.
