Can I bring an Unfair Dismissal claim against my Employer?
If you have recently been dismissed from your employment and you believe your dismissal was unfair, unjust, or there was a lack of consultation from your Employer, you might have a claim. However, there are a number of eligibility criteria which can prevent you from legally bringing an unfair dismissal claim. It can feel a bit like a marathon that starts with a 100m hurdle event – if you jump over all the hurdles and make it to the end, then you can start the marathon. This article briefly sets out the hurdles that you need to jump over in order to be eligible to bring an unfair dismissal claim.
Hurdle 1 - Timeframe
Much like not making it to the starting line on time for the race, if you don’t file an unfair dismissal claim on time then you have very little chance of even getting out of the blocks. Employees have 21 days from the date they are dismissed (or the event leading to them resigning, in the case of a constructive dismissal) to bring an Unfair Dismissal claim. If your claim isn’t filed with the Fair Work Commission by that date, then no matter how good your claim is it will be ruled ineligible and you’ll lose any rights you might have had. In exceptional circumstances, the Fair Work Commission can grant an exception to that rule, but that would be the equivalent of starting the race late and hoping everyone else fell over before the finish line, so unless you’re the modern-day Steven Bradbury, you wouldn’t rely on it.
Hurdle 2 – Have you been ‘dismissed’?
This might seem simple, but some things that may not be a dismissal are a resignation (unless it is ‘forced’), a redundancy (provided it is genuine), you’ve been demoted or your fixed term has expired. You’re in the wrong race altogether, and an unfair dismissal claim will not be applicable.
Hurdle 3 – Has the dismissal been effected?
In this case, you’ve timed your jump too early, hit your front leg on the bar and come crashing to the ground. Unless you have actually been dismissed from your employment, you cannot bring a claim for Unfair Dismissal. This will usually be specified in your termination letter, and in some cases a resignation can still be a dismissal if it is considered to be a ‘forced’ resignation. There are some technicalities around what constitutes a ‘dismissal’ and whether it has been effective, so if it is unclear then you should seek legal advice before bringing a claim.
Hurdle 4 – High Income Threshold
If you earn more than the high income threshold (which at the time of writing, is $162,000 per annum, and subject to review on 1 July each year) then you will be ineligible to bring an Unfair Dismissal claim. Bonuses and other payments can be included in this part of the criteria. You may still be eligible for other claims though (breach of contract, general protections) so you should still seek legal advice, but if you earn more than the threshold you will simply be ineligible for an unfair dismissal claim.
Summary
Sometimes, no matter how unfair or unjust the circumstances might be, an unfair dismissal claim simply won’t be available to you. This doesn’t mean you won’t still have an action against an Employer, as there are other claims you could potentially bring, including a claim for general protections, breach of contract and misrepresentation.
If you have been dismissed but you think one or more of the above hurdles will prevent you from bringing a claim, you should still seek legal advice as there may be other options available. Contact our Employment Law team today for a free consultation.