Unfair Dismissal Lawyers Melbourne

Many casual employees don't realise they have unfair dismissal rights — here's when they apply:

• Employment was on a regular and systematic basis.
• There was a reasonable expectation of ongoing employment.
• They have completed the minimum employment period of 6 months for large businesses (15 or more employees) or 12 months for small businesses (fewer than 15 employees).

Eligibility depends on the nature and pattern of the casual employment arrangement.

Here's what unfair dismissal actually means under Australian law. Unfair dismissal pertains to terminations that are harsh, unjust, or unreasonable, focusing on the fairness of the dismissal process and reason. Unlawful termination involves dismissals for reasons prohibited by law, such as discrimination or exercising workplace rights. While both address wrongful terminations, they differ in legal criteria and applicable remedies.

To be eligible to file an unfair dismissal claim in Victoria, an employee must:

• Have completed the minimum employment period: 6 months for large businesses (15 or more employees) or 12 months for small businesses (fewer than 15 employees).
• Be covered by the national workplace relations system.
• Not earn above the high-income threshold, unless covered by a modern award or enterprise agreement.

Casual employees may also be eligible if they have been employed on a regular and systematic basis with a reasonable expectation of ongoing employment.

An unfair dismissal application must be lodged with the Fair Work Commission within 21 calendar days from the date the dismissal takes effect. Extensions are granted only in exceptional circumstances, so timely action is crucial.

Remedies for unfair dismissal may include:

• Reinstatement: Returning the employee to their former position.
• Compensation: Monetary payment for lost wages, capped at 26 weeks' pay or half the high-income threshold, whichever is lower.

The Fair Work Commission determines the appropriate remedy based on the circumstances of each case.

The Small Business Fair Dismissal Code provides guidelines for small businesses (fewer than 15 employees) to ensure dismissals are fair. Compliance with the Code offers protection against unfair dismissal claims. Key aspects include:

• Ensuring a valid reason for dismissal related to conduct or capacity.
• Providing warnings for underperformance, except in cases of serious misconduct.
• Allowing the employee an opportunity to respond to concerns.

Adherence to the Code is assessed by the Fair Work Commission in relevant cases.

A dismissal is considered a genuine redundancy if:

• The employer no longer requires the job to be performed by anyone due to operational changes.
• The employer has complied with any consultation obligations in an applicable modern award or enterprise agreement.
• It was not reasonable to redeploy the employee within the employer's enterprise or an associated entity.

Genuine redundancies are not classified as unfair dismissals.

If you believe you've been unfairly dismissed:

1. Seek Legal Advice: Consult with a legal professional or relevant authority to assess your situation.
2. Gather Evidence: Collect documents and information related to your dismissal.
3. File an Application: Submit an unfair dismissal application to the Fair Work Commission within 21 days of dismissal.

Timeliness and thorough preparation are essential for a successful claim.

In Victoria, a dismissal is deemed unfair if it is harsh, unjust, or unreasonable. This assessment considers:

• Valid Reason: Whether there was a valid reason related to the employee's capacity or conduct.
• Notification: If the employee was informed of the reason.
• Opportunity to Respond: Whether the employee had a chance to respond to the reason.
• Procedural Fairness: The overall fairness of the dismissal process.

Additionally, the Fair Work Commission examines factors such as the employee's length of service and any prior warnings about performance or conduct.

An unlawful dismissal occurs when an employee is terminated for reasons prohibited by law, including:

• Discrimination based on protected attributes such as race, sex, age, disability, or marital status.
• Temporary absence due to illness or injury.
• Membership or non-membership in a trade union.
• Exercising a workplace right, like making a complaint or inquiry regarding employment.

Such dismissals violate the Fair Work Act 2009 and other anti-discrimination laws.