If you have recently been dismissed from your employment, you may want to know whether you have any grounds to bring a claim.
The answer to this question will depend on a variety of factors such as how long you have been employed, which jurisdiction you fall under (i.e. State or Federal), whether you are covered by an award, or are a high-earning employee, and the reasons for the dismissal.
If you do have grounds to bring an unfair dismissal application, you will need to ensure that you file the application in time.
In this article we briefly focus on unfair dismissal under the Fair Work Act 2009 (Cth) (the “Act”), however, similar protections may apply to employees who are not covered by the Act.
What is Unfair Dismissal?
Unfair dismissal is a term used to describe an employee who has been dismissed from their employment in a harsh, unjust, or unreasonable manner. See section 385 of the Act.
The Act protects/covers those employees who:
- work for a national system employer (see section 14 of the Act);
- have been employed for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business);
- earn less than the high-income threshold (Note: the law also protects employees who earn more than the high-income threshold if their employment is covered by an award or an enterprise agreement); and
- where the employee is a casual employee, has worked on a regular and systematic basis before dismissal and has a good reason to believe this would continue.
What constitutes and does not constitute dismissal?
The Fair Work Commission deals with unfair dismissal applications on a daily basis, and what constitutes unfair dismissal will generally turn on the facts of the case, but often arises where an employee’s employment is terminated:
- with or without warning for their behaviour;
- due to an alleged failure to perform their job to the required level and ability;
- on the basis of redundancy.
Generally, if an employee voluntarily chooses to resign, this will not be considered a dismissal, though, some circumstances where it can be established that an employer’s behaviour left the employee with no real choice but to resign may constitute a dismissal. However, this can be difficult to establish. Read more about forced resignations.
Other scenarios where an employer may not have dismissed an employee might include:
- The old contract ends, and the employee is not offered a new contract;
- The employee has completed the specified task they were employed to complete; or
- The employee was only employed for seasonal work, and the season in which they were employed has ended.
How do I bring a claim?
If you think you have been unfairly dismissed, you may be able to bring a claim by filing an unfair dismissal application with the Fair Work Commission. If the matter proceeds to hearing the Fair Work Commission will need to consider whether the dismissal was harsh, unjust, or unreasonable.
What constitutes harsh, unjust, or unreasonable will generally turn on the facts of the case at hand, however, the Act sets out the criteria to be considered.
Section 387 of the Act provides:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
21-day time limit
Assuming you are eligible to bring an unfair dismissal application, you will then be required to lodge the claim within the required 21-day time frame.
The 21-day time limit in unfair dismissal cases is an extremely significant aspect you MUST be aware of. It is vital to be aware that the clock starts on the day after the dismissal takes effect. If the 21st day falls on a weekend or public holiday, you may lodge the following business day. However, when calculating the 21-day period, you need to include both public holidays and weekends. That is, unless the last day for filing falls on a weekend or public holiday, you do not get extra time to file your application because of weekends and public holidays.
The importance of getting this right and filing your application within the required time limit cannot be reiterated enough. If an application is late (even by one day), you will need to seek an extension of time. Whilst out-of-time applications can be made, it is a high bar to meet, and most applications fail. Even filing a few minutes out of time can preclude you from having your claim heard. The Fair Work Commission has a short video outlining the importance of the 21-day time frame.
A Commission Member will only grant an extension of time if exceptional circumstances exist. This is where a formal hearing may be required to make a decision, particularly if the employer objects. During a formal hearing, an employer will be given the chance to respond to an application and may object if it is late. A commission member will then review both sides and make a decision on whether to successfully grant an extension of time or dismiss the application.
Section 394(3) of the Act, provides that:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
What is considered exceptional circumstances will depend on the facts of the case however, it is a fairly high bar to meet. In general terms, not having knowledge of the required time limit or being on a holiday does not constitute an exceptional circumstance, however, a serious medical condition with valid evidence to prove your condition may be deemed an exceptional circumstance. Whilst the Commission will dismiss a case if the application is filed only a few minutes out of time where there is no exceptional circumstances for doing so, it will grant extensions that are considerably out of time if there are exceptional circumstances. For example in Allan Gabriel v Titan Recruitment Pty Ltd T/A Titan Recruitment – [2023] FWC 230 an application was filed 42 days out of time. The applicant was at the time legally represented. Notwithstanding, the Commission granted exceptional circumstances due to representational error (i.e. because the employee’s legal representatives had made an error).
The Fair Work Commission offers a quick video explaining late applications and the process that follows.
As you will see there are some scenarios where an application filed out of time may be allowed, but generally it will not and as such you should always seek to file within time. If, you think you have been unfairly dismissed and would like to consider whether is worthwhile bringing a claim you should however, if you do not file within time and would like to know if there is a basis to do so, you might consider seeking legal advice.