Under the Fair Work Act 2009 (Cth), there are two common avenues for resolving disputes between employers and employees.
Under the Fair Work Act 2009 (Cth), there are two common avenues for resolving disputes between employers and employees:
- An unfair dismissal claim (sometimes referred to as wrongful dismissal), in which it is alleged that the termination of employment was not for a valid reason and/or was procedurally unfair. The unfair dismissal jurisdiction encompasses claims that the termination of employment was not a genuine redundancy, as well as claims that the employer deliberately created a hostile work environment forcing the employee to resign (known as constructive dismissal). See also: Q&A about unfair dismissal.
- A general protections claim (sometimes referred to as unlawful dismissal), in which it is alleged that the termination of employment was unlawful. The general protections provisions of the Fair Work Act cover the following scenarios:
- The employer took action against the employee for exercising a workplace right;
- The employer coerced or pressured an employee to not exercise a workplace right, or misrepresented the employee’s rights;
- The employer discriminated against an employee or prospective employee because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- The employer dismissed the employee because the employee was temporarily absent from work because of illness or injury; and
- The employee is/was engaged as an independent contractor, when the arrangement had the characteristics of employment (“sham contracting”).
See also: Q&A about general protections claims
Importantly, you must make your claim within 21 days after the dismissal took effect. If you think you might have a claim, make an appointment to see us as soon as possible: (03) 9583 6263. If you have missed the deadline, it may still be worth seeing us to assess your options.
If we too think you have a claim, we will represent you at a conciliation conference conducted by Fair Work Commission. The aim of a conciliation conference is to settle the dispute earlier and avoid unnecessary legal costs. Most matters settle at this stage, but some proceed to a formal hearing. If you are successful, remedies include reinstatement and/or compensation for lost earnings.