Unfair Dismissal Claims

If you have been dismissed from your employment and are unsure what to do next, Grope Hamilton Lawyers can assess your circumstances, explain whether an unfair dismissal claim may be available and help you take the next steps.

Understanding Unfair Dismissal

Being dismissed from your employment does not automatically mean that you have been unfairly dismissed in the legal sense. An unfair dismissal claim involves a specific legal assessment of the reason for the dismissal, the process followed by the employer and the circumstances surrounding the end of the employment.

In South Australia, an unfair dismissal matter may fall within either the national workplace relations system or the South Australian state system, depending on the employer and the nature of the employment. Under both systems, a central question is whether the dismissal was harsh, unjust or unreasonable. This may involve considering whether there was a valid basis for the dismissal, whether the employee was informed of the concerns and given a genuine opportunity to respond, and whether dismissal was a proportionate outcome in the circumstances.

For employees covered by the national system, additional considerations may include whether the dismissal was consistent with the Small Business Fair Dismissal Code and whether it was a case of genuine redundancy. Whether a person is eligible to make an application will also depend on their individual employment circumstances.

Time Limits for Unfair Dismissal Claims

Applications lodged outside the applicable time limit may only be accepted in exceptional circumstances. The date on which a dismissal takes effect, the employment system that applies and any relevant procedural requirements can affect the deadline. Different processes may also apply to certain public sector or specialist employment matters.

Even if you are unsure whether you are eligible to make an unfair dismissal claim, it is important to seek legal advice promptly so that the applicable deadline and available pathway can be considered.

Strict time limits apply to unfair dismissal claims. For employees covered by the national workplace relations system, an application must generally be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. Where a general unfair dismissal matter falls within the South Australian state system, an application must also generally be lodged with the South Australian Employment Tribunal within 21 days of the dismissal becoming effective.

Legal Support for Your Unfair Dismissal Claim

When your employment ends unexpectedly, it can be difficult to know whether the dismissal was unfair in the legal sense, which workplace relations system applies or what needs to be addressed first. You do not need to work through those questions before speaking with us.

Grope Hamilton Lawyers will take the time to understand what happened, review the circumstances surrounding your dismissal and help you identify the legal pathway that may be available.

Initial Assessment

Assess Your Position

We consider the circumstances of your dismissal and help identify the legal pathway that may be available.

Applicable workplace relations system
Eligibility to make a claim
Relevant time limit

Circumstances and Evidence

Review What Happened

We review the reason given for your dismissal, the process followed by your employer and the information relevant to your employment.

Employment contract and termination letter
Warnings and workplace correspondence
Other relevant records

Application and Response

Prepare and Progress Your Claim

Where appropriate, we can prepare and lodge your application with the relevant tribunal and assist as the matter progresses.

Preparing the application
Lodging with the appropriate tribunal
Responding to jurisdictional objections

Conciliation and Resolution

Work Towards Resolution

We help you prepare for the dispute-resolution process and provide representation where appropriate.

Conciliation preparation
Settlement negotiations
Further conferences or hearings

The appropriate tribunal will depend on which workplace relations system applies to your employment. As part of our initial assessment, we can help identify the relevant jurisdiction and where any application may need to be made.

National Workplace Relations System

Fair Work Commission

For employees covered by Australia’s national workplace relations system, unfair dismissal applications are generally made to the Fair Work Commission.

South Australian State System

South Australian Employment Tribunal

For certain employees covered by the South Australian state industrial relations system, an unfair dismissal matter may be dealt with by the South Australian Employment Tribunal.

Could You Be Eligible to Make an Unfair Dismissal Claim?

Eligibility is a separate question from whether the dismissal itself was unfair. The requirements differ depending on whether the employment falls within the national workplace relations system or the South Australian state system.

National Workplace Relations System

Eligibility Requirements

Most South Australian private-sector employees are covered by the national workplace relations system. Protection under this system generally depends on whether the employee:

Was employed by a national system employer.
Completed the minimum employment period of six months, or 12 months where the employer had fewer than 15 employees at the time of dismissal.
Was covered by a modern award or enterprise agreement, or had earnings below the applicable high income threshold.
If employed casually, was a regular casual employee and had a reasonable expectation of ongoing employment on a regular and systematic basis.

South Australian State System

Coverage and Exclusions

An application may be available to employees of:

The South Australian Government.
A State Government business enterprise, subject to any applicable exceptions.
The local government sector.

Restrictions or exclusions may apply to:

Employees serving a qualifying or probationary period.
Casual employees, depending on the length and regularity of the engagement.
Apprentices.
Non-award employees earning at or above the applicable remuneration threshold.
Employees whose applicable award contains specific unfair dismissal provisions.

The system that applies depends on the identity and legal structure of the employer, and exceptions may apply.

A separate question is whether the employment ended in a way that is legally recognised as a dismissal. This may require closer consideration where an employee resigned, was demoted or experienced a substantial employer-imposed change, or where employment ended under a fixed-term or task-based arrangement.

Forced Resignation

A resignation may be treated as a dismissal where the employer’s conduct left the employee with no real choice but to resign.

Demotion or Substantial Change

A demotion or other substantial employer-imposed change may amount to a dismissal where it results in a significant reduction in remuneration or duties, even if the employment relationship continues.

Fixed-Term, Task-Based or Seasonal Employment

Employment ending at the conclusion of a genuine specified period, specified task or seasonal arrangement will not ordinarily be treated as a dismissal, although the surrounding circumstances may require closer consideration.

What May Make a Dismissal Unfair?

Once the eligibility requirements have been considered, the next question is whether the dismissal itself was harsh, unjust or unreasonable. The precise legal assessment will depend on the workplace relations system that applies, but the reason for the dismissal and the way the decision was made will usually be important.

  
          Reason and Evidence
        
          Was the Reason for Dismissal Properly Supported?
        
          Review the evidence, information considered and whether dismissal
          was proportionate.
        
          The reason given by the employer does not appear to be supported by
          the available facts or evidence.
        
          Relevant information or the employee’s explanation appears to have
          been overlooked.
        
          Dismissal appears disproportionate to the conduct, performance or
          capacity issue raised.
        
          Fair Process
        
          Was the Employee Given a Fair Opportunity?
        
          Review how concerns were communicated and whether the employee had
          an opportunity to respond.
        
          The employee was not clearly informed of the concerns or allegations
          relied upon.
        
          The employee was not given a genuine opportunity to respond before
          the decision was made.
        
          Performance concerns were relied upon without clear warnings or a
          reasonable opportunity to improve.
        
          A request for a support person was unreasonably refused.

Under the national system, these matters form part of the Fair Work Commission’s broader assessment of whether a dismissal was harsh, unjust or unreasonable. A dismissal is considered in its full context, and no single factor will automatically determine the outcome.

These are also the kinds of issues our employment lawyers will examine against the termination letter, warnings, workplace correspondence, meeting records and the sequence of events leading to the dismissal. This helps identify the strengths and risks of the matter and how an unfair dismissal claim may need to be approached.

What Outcomes May Be Available?

An unfair dismissal claim does not lead to one standard outcome. A matter may be resolved by agreement between the employee and employer or, if it proceeds to a final determination, the relevant tribunal may decide whether a remedy should be ordered.

Returning to Employment

For matters within the national workplace relations system, the Fair Work Commission may order reinstatement where a dismissal is found to be unfair. This may include continuity of service and, in some circumstances, remuneration or benefits lost during the period away from work.

For matters within the South Australian state system, SAET may order re-employment in the employee’s former position or, where that is not practicable or appropriate, in another available position.

Compensation

Where returning to employment is not an appropriate outcome, compensation may be considered. Compensation is not automatic merely because a dismissal is found to be unfair.

Under the national system, compensation is directed towards lost remuneration. The Fair Work Commission cannot order compensation for pain and suffering, shock, distress, hurt or humiliation as part of an unfair dismissal remedy. Under the South Australian state system, SAET may order compensation where re-employment in any position would not be appropriate.

An Agreed Resolution

A matter may also resolve without a final decision where the employee and employer agree on settlement terms. Depending on what is negotiated, an agreement may include a financial settlement, a statement of service, payment of outstanding entitlements, reinstatement or continuity of service, an agreed resignation, or confidentiality and non-disparagement terms.

A settlement creates a legally binding agreement between the parties. The terms available through negotiation may be broader than the remedies a tribunal could order after a hearing.

The outcome that may be appropriate will depend on the applicable workplace relations system, the circumstances of the dismissal, the evidence available and whether the matter is resolved by agreement or determined by a tribunal.

Frequently Asked Questions

What happens after an unfair dismissal application is lodged?

Once an application is lodged, the employer will generally receive a copy and be given an opportunity to respond. The employer may dispute the circumstances of the dismissal or raise an objection about whether the claim can proceed.

The matter may then be listed for conciliation or another early dispute resolution process. Conciliation gives both parties an opportunity to discuss the issues and explore whether an agreement can be reached, but it does not determine whether the dismissal was unfair.

If the matter does not resolve, it may proceed to further directions, a conference or a hearing before the Fair Work Commission or the South Australian Employment Tribunal, depending on the system that applies. The course of each matter will depend on the issues raised and whether the parties reach an agreement.

What does it mean if my employer objects to the application?

An employer may raise a jurisdictional objection if it says that the relevant tribunal does not have the power to deal with the application.

In a national-system claim, an objection may concern whether a dismissal legally occurred, whether the application was made within time, whether the minimum employment period was completed or whether the dismissal involved a genuine redundancy. Depending on the issue, the objection may need to be determined before the tribunal considers whether the dismissal was unfair.

An objection does not automatically mean that the employer’s position is correct. The tribunal may require evidence and decide whether the claim should continue.

What if my employer says I was dismissed for serious misconduct?

Describing conduct as “serious misconduct” does not, by itself, determine whether a dismissal was fair.

The circumstances may still require consideration of whether the alleged conduct occurred, what evidence supported the allegation, whether the matter was properly investigated, whether the employee had a fair opportunity to respond and whether immediate dismissal was proportionate.

The seriousness of the allegations, the employee’s response and the surrounding circumstances will all be relevant to the legal assessment.

Could my dismissal involve another type of employment law claim?

Not every legal issue arising from a dismissal is limited to unfair dismissal. The appropriate legal pathway may depend on why the employment ended and what other issues were involved.

For example:

A dismissal connected with a workplace complaint, protected leave, discrimination or the exercise of a workplace right may raise a General Protections or Adverse Action Claim;
A failure to comply with notice, remuneration or another contractual obligation may involve a Breach of Employment Contract; and
A work-related physical or psychological injury may require separate consideration under Workers’ Compensation or Personal Injury Law.

These pathways involve different legal tests and procedures. The law may also restrict a person from pursuing more than one statutory application concerning the same dismissal, making it important to identify the appropriate claim before an application is lodged.

Can finding another job affect an unfair dismissal claim?

Obtaining new employment does not necessarily prevent a national-system unfair dismissal claim from continuing. However, earnings received after dismissal and the steps taken to reduce financial loss may be relevant if the Fair Work Commission later considers compensation.

This means that obtaining another job may affect the amount of financial loss attributed to the dismissal, rather than determining whether the original dismissal was unfair. Different considerations may apply to matters within the South Australian state system.