If you’re an employee in Victoria who has been unfairly dismissed, you may be able make an unfair dismissal claim. Although reinstatement is a possible resolution for most claims, this may not happen. Without proper legal representation, an employee who has been unfairly dismissed may end up with no or minimum compensation.
Unfair dismissal Victoria
A person has been ‘unfairly dismissed’ under section 385 of the Fair Work Act if the dismissal:
- Was harsh, unjust or unreasonable.
- Did not have any valid reasons.
- Was not consistent with the Small Business Fair Dismissal Code.
- Was not a genuine redundancy.
When can an employee lodge an unfair dismissal claim?
An employee can lodge a claim when:
- The termination did not follow procedures.
- The employee was not paid his or her entitlements.
- The employee’s rights were denied.
Small Business Fair Dismissal Code
As of 1 January 2010, a small business employer is ‘a business with less than 15 employees by head count’.
Under the code, an employer can dismiss any employee on reasonable grounds if the employee’s conduct justified a termination. The employer does not have to show proof that misconduct has occurred.
How unfair dismissal claims are lodged
An employee has up to 21 days from the termination date to lodge a claim. Forms are available on The Fair Work Commission’s website and claims are lodged online.
What happens after lodgement?
The Fair Work Commission will send a letter to the employer and the employer is given time to respond. The Fair Work Commission will then organise a conciliation moderated by a Fair Work Commissioner. If a resolution cannot be reached, then it will proceed to a conference and hearing.
Any employee who has been unfairly dismissed should seek legal advice from an unfair dismissal lawyer. Unfair dismissal lawyers can give legal advice on your entitlements as well as important assistance with forms lodgement, meetings with the Fair Work Ombudsman and legal representation if the case proceeds to court.