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What Every Employee Needs To Know About Unfair Dismissal

There are many versions of what people may conceive as “unfair dismissal”, or commonly known as unfairly being fired from their job, depending on what side of the fence they are on. What is employee unfair dismissal? In general, it refers to a situation when an employee has been fired or been pushed to edge […]

What Every Employee Needs To Know About Unfair Dismissal

What Every Employee Needs To Know About Unfair Dismissal

By Aylward Game - Mar 29, 2020 Articles, Employment Law

There are many versions of what people may conceive as “unfair dismissal”, or commonly known as unfairly being fired from their job, depending on what side of the fence they are on.

unfair dismissal for employeesWhat is employee unfair dismissal?

In general, it refers to a situation when an employee has been fired or been pushed to edge unlawfully, so as to force him/her to resign from their position for no valid reason recognized by the current laws.

How do you know if your employer fired you unfairly?

The rule of thumb is to look at your own employment agreement first. Look for the following four specific things, although the list is not exhaustive, it should pretty much give you some idea as what unfair dismissal is:

  • How long you have been working for your employer and whether your employer was a small business with fewer than 15 employees;
  • Look to see if the reason for your dismissal accords with your agreement under its termination clause;
  • Look to see if the dismissal was proportionate with the act or omission you may have done (that is: whether the dismissal was harsh or unjust); and
  • Look to see if your employer followed a fair process to have you dismissed.

Does the termination clause in the employment agreement means that you cannot fight your unfair dismissal?

No. But the answer here is subject to a couple of variables. For instance, an employer might deem that they have acted upon the termination clause fairly and that they were right in firing the employee in the first place and nothing was harsh, but it may well be the opposite. It is a matter of right interpretation of the termination clause, the laws, and the advice that an HR manager or the decision-maker may receive or give at the time in question.

What laws in Queensland protect you against unfair dismissal?

The provision of unfair dismissal is covered by the Fair Work Act 2009. Section 385 of the Act defines “unfairly dismissed” as a dismissal of harsh or unreasonable nature, not consistent with the Small Business Fair Dismissal Code, and that the dismissal was not a case of genuine redundancy.

What rights do you have at the workplace and can you get fired for exercising those rights?

You cannot get fired for exercising the rights detailed below (That is: your employer cannot take adverse action against you just because you have exercised those rights). Please note that the list here is not an exhaustive one, but should shed some lights on your workplace rights:

  • You cannot be bullied or discriminated against at your workplace and if you reasonably confront that and you are fired, your employer may have taken adverse action against you;
  • Because you are a member or not a member of a union;
  • Taking or not taking part in industrial activity;
  • Having a protective attribute;
  • Wearing any religious requirement or symbol such as wearing Hijab, or other religious headgears or symbols
  • Forcing you to do something against your will; and
  • If you are subject to undue influence or pressure

If you are fired, how long do you have to lodge your claim and where?

If you deem you have been unfairly dismissed, you have 21 days after the day you are notified of the dismissal to apply to Fair Work Commission for unfair dismissal. It, of course, is best to seek legal advice immediately. This can benefit you among others, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue and more importantly if your claim is lodged within the prescribed time.

Here at Aylward Game Solicitors out the team is ready to assist you with any employment or workplace-related legal situations on 1800 217 217.