It is hard to believe that while most of us are preparing for Christmas or holidays or spending time with the family, some businesses use this time to dismiss employees in preparation for a fresh start to the New Year.
Being dismissed from your employment can be a difficult experience filled with much uncertainty. It is often difficult to know where you stand, what your rights are and how you can resolve the dispute and move forward.
Protection from unfair dismissal
If you have been dismissed from your employment for reasons of performance or conduct or perhaps no reason at all, or your job has been made redundant, you may be protected by the Fair Work Act 2009 (Cth) (“the Act”).
The Act protects employees who:
(a) have completed a minimum period of employment (12 months for a small business otherwise 6 months); and
(b) presently earn $136,700 per annum or less or, if above that amount, where their employment is covered by a modern award or enterprise agreement.
If you have been dismissed from your employment, and you do not meet the above criteria, you may still have protections under the Act and should contact our experienced Gold Coast Employment Lawyers for an assessment.
Have you been made genuinely redundant?
You may not have been genuinely made redundant if:
(a) your job is still required to be performed; or
(b) your employer failed to comply with any obligations under a modern award or enterprise agreement (such as consulting with you); or
(c) you could have been redeployed within the employer’s business or an associated business.
Have you been unfairly dismissed?
If you have been dismissed from your employment or your job has not been made genuinely redundant, it may be an unfair dismissal if:
(a) your dismissal was harsh, unjust or unreasonable; and
(b) your dismissal was not consistent with the Small Business Fair Dismissal Code (which applies where your employer and its associated entities have less than 15 employees);
To determine whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission will take into account:
(a) whether there was a valid reason for your dismissal relating to your capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether you were notified of that reason; and
(c) whether you were given an opportunity to respond to any reason relating to your capacity or conduct; and
(d) any unreasonable refusal by your employer to allow you to have a support person present to assist at any discussions relating to your dismissal; and
(e) if your dismissal related to unsatisfactory performance by you – whether you had been warned about that unsatisfactory performance before your dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting your dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting your dismissal; and
(h) any other matters that the Fair Work Commission considers relevant.
How can we assist?
We can assist by providing you with clarity and understanding of your rights, obligations and the process involved. Each case is different and needs to be considered on its merits. You only have 21 days from the take your dismissal took effect to file the appropriate application with the Fair Work Commission, so you must act quickly. For an assessment, please contact Affinity Lawyers on 07 5563 8970 to make an appointment and discuss your individual circumstances with an experienced lawyer in Runaway Bay.
