Industrial Relations

Lodging an Unfair Dismissal Claim.

Employees who have a legitimate industrial relations complaint or unfair dismissal action that can be brought before Fair Work Australia (was the Australian Industrial Relations Commission) have an intricate process to go through to lodge their Claim.

It's now getting even more complicated, if you have been unfairly or unlawfully sacked you need to sure that your claim is lodged in time. You cannot bring an Unfair Dismissal claim if you have been sacked for a 'genuine redundancy'.

If you are unfairly sacked from the 1st of July 2009 everyone can bring a unfair dismissal, unlawful dismissal or both, subject to some criteia. This is basically the rules:

1) You have 14 days to lodge a unfair dismissal claim from the day you were told your sacked or you finished up, whichever is the latter. (pre 1/7/2009 it is 21 days)
2) You have 60 days to lodge a unlawful dismissal claim on the following grounds: (if you're outside the timeline as set out, you may still be able to bring a unfair or unlawful dismissal claim if you have exceptional circumstances for not lodging on time)
a) a person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it's based on the inherent requirements of the job.
b) Temporary absence from work because of illness or injury
c) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours, non-membership of a trade union, seeking office as, or acting as, a representative of employees
d) being absent from work during maternity leave or other parental leave
e) temporary absence from work to engage in a voluntary emergency management activity
f) filing a complaint, or participating in proceedings against an employer.

If we are lodging a unfair dismissal claim for you, you must meet the follwiung criteria
3) completed a minimum employment period of at least 6 months (or 12 months if your employer is a small business employer - fewer than 15 full-time equivalent employees) at the time of dismissal, either been: covered by an award, or covered by an agreement, or earning less than $108,300 a year.
4) Regarding unlawful dismissal claims there is no minimum period of employment or salary limit.
5) Remedies are reinstate you (give you back your job), or compensate you for up to 26 weeks pay (if this is more than $54,150, then compensate you for up to $54,150).
6) If you been made redundant, you cannot bring a claim, however if you belive it is not genuine you may still be able to bring a claim.
7) if you work from a business that employs less than 15 employees they can dismiss you providing they have followed a check sheet issued by the goverment, if they haven't followed it, you can bring a claim. Basically if you have received one warning, and the Employer has followed a check list they can get rid of you.

Constructive dismissal
If you have been forced to resign, in other words you have absolutely no choice by the conduct or behaviour of the employer you are entiled to lodge a unfair dismissal claim. At the time of your resignation if you have choice the claim will fail. You have to be able to argue it was impossible to stay there.

It is early days for the new system, employees rights have increased, call us to day to discuss your situation.

Where possible we will not let the employer get away with unfairly terminating your employment, bring unnecessary stress and financial hardship to you and your family.

We will lodge a Unfair Dismissal Claim on your behalf (be aware there is a very strict 21 day rule to lodge a unfair dismissal claim in the AIRC) and represent you at hearings, or Negotiate a result before a Hearing Date arrives. If you are seeking assistance, you are already stressed and under pressure.

If your industrial relations, unfair dismissal or discrimination claim deserves to be run and the employer won't settle, we will be there for you.

All: Unfair dismissal, Industrial relations, Redundancy, Unlawful termination, Discrimination, Workchoices, Workplace relations, Employee rights, Forced to resign, Arbitrations, Workplace reform, Workplace relations, Harrassment, Workers rights, Work choices, Workplace reform, Industrial relations commission, VCAT

Call us today, make that call!!

A Whole New Approach has run a number of high profile industrial relations and discrimination cases. (we are not lawyers)

We aren’t afraid to challenge the big companies and have had a number of significant wins, including Walgama v Toyota Motor Corporation Australia Limited (2008), Vicki Radman v Flight Centre Ltd (2007) and Bain v Terrock Pty Ltd (2007). We’ve had a number of important battles over unfair dismissals revolving around operational reasons, including Cruickshank v Priceline Pty Ltd (2007), Carter v Village Cinemas Australia Pty Ltd (2007), Collin McKenzie v Fuji Xerox (2008) and Perry v Savills (Vic) Pty Limited (2006).

An extremely significant recent decision was Napoli v Dabserv Pty Ltd. In this case, A Whole New Approach was successful in winning an extension of time hearing against Dabserv Pty Ltd, the administrative arm of the large law firm Mallesons Stephen Jaques. The applicant was unable to lodge her unfair dismissal claim until 49 days after the 21 day time limit for a number of reasons, including her psychological state.

However, A Whole New Approach successfully argued that an extension of time should be granted to Ms Napoli so that her case for unfair and unlawful dismissal could be heard.

ABSOLUTELY NOTHING ON THIS SITE CONSTITUTES LEGAL ADVICE. A WHOLE NEW APPROACH PTY LTD IS NOT A LAW FIRM AND WE ARE NOT SOLICITORS.      

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