Unfair Dismissal Lawyers Brisbane

1. Understand the Reason for Your Dismissal: Determine why your employment was terminated. Employers must have a valid reason, such as poor performance, misconduct, or redundancy. 
2. Check Compliance with Procedures: Ensure your employer followed the correct procedures. This includes providing written notice and an opportunity to respond to any allegations against you. 
3. Gather Evidence: Collect any relevant documents, such as your employment contract, performance reviews, and correspondence with your employer. This evidence can support your claim. 
4. Seek Legal Advice: Obtain legal advice from an employment lawyer or a legal advice service to discuss your situation. They can help you understand your rights and the strength of your case. AKS are leading Brisbane employment lawyers. 
5. Lodge a Claim: If advised, file an application with the Fair Work Commission within 21 days of your dismissal. Missing this deadline can make it difficult to pursue your claim. 
6. Communicate with Your Employer: Before lodging a claim, consider discussing your concerns with your employer. Sometimes, issues can be resolved without formal proceedings. 
7. Follow Up: If you proceed with a claim, stay in touch with your legal advisor and follow their guidance throughout the process. 

Yes, you must file an unfair dismissal claim within 21 days of your dismissal. In some cases, extensions may be granted, but it is crucial to act promptly to ensure your claim is considered.

Constructive dismissal occurs when an employee resigns due to their employer’s conduct, which makes their working conditions intolerable, effectively forcing them to leave. This type of dismissal is recognised under Australian law and can form the basis for an unfair dismissal claim. 

• Understanding Constructive Dismissal: Constructive dismissal arises when an employer’s actions fundamentally breach the employment contract, leaving the employee with no reasonable alternative but to resign. Examples include workplace harassment (including sexual harassment), significant changes to job duties without consent, non-payment of wages, and unsafe working conditions. 

• Making a claim: If you believe you have been constructively dismissed, you can file an unfair dismissal claim with the Fair Work Commission (FWC). The process involves lodging a claim within 21 days of your resignation. The FWC will then notify your employer, who must respond in writing. The case may proceed to conciliation, and if unresolved, to a hearing. 

• Evidence Required: To support your claim, gather evidence such as emails, letters, and witness statements that demonstrate the employer’s detrimental conduct. You must also show that your resignation was a direct result of this conduct and that you suffered financial loss as a result. 

• Legal Advice: Given the complexity of constructive dismissal claims, seeking legal advice is crucial. An employment lawyer can help you understand your rights, gather necessary evidence, and navigate the legal process effectively 

To be eligible for an unfair dismissal claim in Australia, you must meet the following eligibility criteria: 

Minimum employment period: 

• 6 months for businesses with 15 or more employees 

• 12 months for small businesses (less than 15 employees) 

Income threshold: Your annual earnings must be below the high-income threshold (currently $175,000 as of 1 July 2024) unless covered by an award or enterprise agreement. 

Employment status: You must be a permanent employee or a casual employee with regular and systematic employment. 

Timeframe: You must lodge your claim within 21 days of the dismissal taking effect. 

Nature of dismissal: The dismissal must be considered harsh, unjust, or unreasonable. If the employer had valid grounds due to unsatisfactory performance or misconduct and followed the correct procedures then there may not be grounds for a claim. 

Exclusions: You are not eligible if you were genuinely made redundant or if you’re a contractor, trainee, or high-income earner not covered by an award or agreement. 

Remember that each case is unique, and it’s advisable to seek legal advice to determine your specific eligibility. 

If you believe you lost your job unfairly, several remedies are available under the Australian Fair Work Act that our employment lawyers can fight for including; 

• Reinstatement: The primary remedy is reinstatement to your former position. This means you get your job back, along with continuity of service and compensation for lost pay from the time of dismissal to the reinstatement date. 

• Compensation: If reinstatement is not feasible, the Fair Work Commission may order compensation. This typically covers lost wages up to a maximum of 26 weeks, along with other financial losses such as loss of bonuses or benefits. However, it does not cover shock, distress, or humiliation. 

• Other Financial Losses: In addition to lost wages, you may be compensated for other financial losses directly resulting from the dismissal, such as the loss of superannuation contributions or other employment benefits. 

It’s crucial to act promptly, as you must lodge your claim within 21 days of your dismissal. Seeking legal advice can help you understand your rights and strengthen your claim. Each case is unique, so the specific remedies available can vary based on individual circumstances 

The duration of unfair dismissal proceedings can vary, but it typically involves several key stages, each with its own time frame. Here’s an overview of what you can expect when resolving a case is you’ve been wrongly dismissed: 

1. Lodging the Claim: You must file your application with the Fair Work Commission (FWC) within 21 days of your dismissal. This is a strict deadline, and missing it can jeopardise your claim. 
2. Employer Response: Once the claim is lodged, the employer has 7 days to respond. This response will outline their reasons for the dismissal and any objections they may have. 
3. Conciliation: The FWC will typically schedule a conciliation session within a few weeks. Conciliation is a voluntary process where a conciliator helps both parties try to reach a mutually acceptable resolution. This stage can take a few weeks to a couple of months, depending on the complexity of the case and the availability of the parties.
4. Hearing: If conciliation fails, the case proceeds to a formal hearing. The FWC will set a hearing date, which can be several months after the conciliation. During the hearing, both sides present evidence and arguments. You may want to have a support person present. The entire process, from lodging the claim to receiving a decision, can take several months. 
5. Decision and Remedies: After the hearing, the FWC will issue a decision. If the dismissal is found to be unfair, remedies such as reinstatement or compensation may be ordered. This final stage can add additional time to the process, depending on the complexity of the case and the specific remedies awarded. 

Throughout this process, having a lawyer can be invaluable in navigating the legal complexities and ensuring your case is presented effectively.