Q & A about unfair dismissal claims

1. I’ve missed the 21-day deadline. Can I still make a claim?

You may be able to apply for an extension of time, if you have a valid reason. 

2. I was fired during my probation period. Can I make a claim?

Usually not.

In a small business (defined as less than 15 employees), an employee can be kept on probation for a maximum of 12 months and terminate their employment at any time within that period. In a larger business (over 15 employees, including casuals), an employee can be kept on probation for a maximum of 6 months and terminate their employment at any time within that period. Provided your ex-employer has complied with the relevant requirement, you will not be eligible to make an unfair dismissal claim.

If you suspect you were dismissed due to discrimination, however, it is best to come and see us.

3. I was a casual employee. Can I make a claim?

Only if you had regular and systematic shifts and an expectation of ongoing employment.

4. I’m an independent contractor. Can I make a claim?

No, unless the characteristics of the engagement were more akin to employment. This is a complex area and requires particular advice. Come and see us.

5. Will the other side pay for my legal fees?

Each party must bear its own costs. If the matter proceeds to a formal hearing, the Commission has the discretion to make a costs order if satisfied that the application or response was vexatious, or without reasonable cause, or had no prospects of success (section 611 of the Fair Work Act). A costs order is difficult to obtain and should not be relied on. 

6. My annual salary was over $142,000 in 2017-18. Can I still a claim?

No, unless your employment was covered by a modern award or enterprise agreement. Otherwise, employees earning over a certain threshold (updated annually on 1 July), are not protected by the unfair dismissal laws.

7. I have just been unfairly dismissed. Should I apply for new jobs?

When you are ready, it is important to get back in the employment market and apply for new jobs. A good unfair dismissal applicant will try to mitigate (lessen) the loss caused to them by applying for new jobs, even if their application is unsuccessful. Efforts are acknowledged, not just outcomes. 

8. My dismissal was both unfair and unlawful – should I make an unfair dismissal claim or a general protections application?

There are important distinctions between the two applications – not only with respect to the claim itself, but also the level of difficulty and available remedies. A failure to make the correct application can jeopardise your chances of success. It is best to obtain our personalised advice as soon as possible.

Please note that the above answers are generalised and may vary in light of your circumstances. Call us on (03) 9583 6263 to make an appointment.