Unfair Dismissal Lawyers, Toowoomba

Your dismissal may be considered unfair if:

• you were dismissed, and
• your dismissal was harsh, unjust or unreasonable, and
• your dismissal was not a case of genuine redundancy, and
• if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.

To pursue an unfair dismissal claim against your employer, you must:

• lodge your application within 21 days of dismissal becoming effective
• be covered by the national workplace relations system
• be an employee who has been dismissed
• meet eligibility criteria, including the minimum employment period.

The minimum employment periods are:

• one year — where the employer employs fewer than 15 employees (a small business employer)
• six months — where the employer employs 15 or more employees.

In addition, if you earn more than the high-income threshold, at least one of the following must apply:

• you are covered by an award, or
• you are covered by an enterprise agreement.

You will not be eligible to file a claim for unfair dismissal if you are:

• an employee of a local and state government in New South Wales, Queensland or South Australia
• an employee of state government of Tasmania
• an employee of state government or non-constitutional corporations in Western Australia
• an independent contractor
• someone who resigned and were not forced to do so by your employer
• someone employed under a contract of employment for a specified period of time, a specified task, or the duration of a specified season who was dismissed at the end of the period, task or season
• a trainee whose employment was for a specified period of time and you were dismissed at the end of the training arrangement
• an employee who has been demoted but has had no significant reduction in your remuneration or duties and you remain employed by the employer who demoted you.

If you are eligible to file an unfair dismissal claim under the Fair Work Act, you must file your claim within 21 days of your dismissal taking effect.

Once an application is filed, an employer will have 14 days to respond to the application and the matter will be listed for a conciliation conference.

A conciliation conference is a voluntary process where Commission staff try to help both sides resolve the dispute without the need for a more formal hearing before a Commission Member. Staff conciliators do not make decisions about the merits of the application and any agreements to settle the matter are generally subject to the terms of a formal deed signed by all parties.

If the matter doesn’t resolve at conciliation, the matter will be sent to a member of the Commission for hearing.

The only remedies the Commission can order are limited by the law (the Fair Work Act 2009) to:

• reinstatement to your old job/role
• compensation up to a maximum of 26 weeks' pay.

No.

In very limited circumstances, the Commission may require the losing party to pay the other party’s costs, but only where the Commission is satisfied the matter was commenced or responded:

• vexatiously or without reasonable cause, or
• with no reasonable prospect of success.

Indemnity costs (costs are all costs including fees, charges, disbursements, expenses and remuneration as long as they have not been unreasonably incurred) may be ordered when there has been an element of misconduct or delinquency on the part of the party being ordered to pay costs.