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Unfair Dismissal:

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Unfair Dismissal: what is it?

The Fair Work Act creates a scheme by which unfair dismissals are dealt with. Under that Act, an employee will be found to be unfairly dismissed if the dismissal is harsh, unjust or unreasonable, was not a case of genuine redundancy and the dismissal was not consistent with the Small Business Fair Dismissal Code.

Obviously, a determination on the above will be heavily evidence based. Fair Work Australia will need to consider a variety of matters in making its decision whether or not the dismissal was unfair: the reasons given for the dismissal, whether there were warnings given to the employee if the reason related to unsatisfactory performance, whether the employee was notified of the reason and given an opportunity to respond to the reasons given, whether the employer allowed a “support person” to be present with the employee when the reason for the dismissal was delivered, and other operational or relevant matters relating to the functioning of the business enterprise.

An employee will be covered by the protection under the Fair Work Act if, in the event that the business is not a “small business”, that employee was employed for no less than six months. Other factors that may ground a claim under the Fair Work Act include: a modern award or enterprise agreement covers the employee and the total yearly income for that employee is less than the high income threshold.

In the event that the unfairly dismissed employee is successful in his claim against the employer, various remedies are available. These can include reinstatement or compensation (which is caped under the Fair Work Act).

Precisely where you stand and what your legal position is, will of course depend on your matter and your particular circumstances.  It is important that you seek a preliminary legal opinion, before you embark upon litigation. It is also important that you move very quickly, as there is usually a time limit of only fourteen (14) days from the date of termination of your employment, to commence legal action in Fair Work Australia. 

Our unfair dismissal lawyers at Navado will be able to consider your matter and the circumstances that you are facing and provide you with a preliminary legal opinion, in relation to whether or not you have been unfairly dismissed and if so, what, if any, damages might be available to you.  You can make an appointment with one of our employment lawyers now, if you require employment legal advice about your possible unfair dismissal matter. 

If you wish to speak with one of our Employment Lawyers, contact our firm on (02) 9233 4048 or send an email to info@navado.com.au to arrange an appointment. 

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