SWIMMING, NOT DROWNING?
SWIMMING, NOT DROWNING?Being unfairly dismissed can have a catastrophic impact upon your life and that of your loved ones! Reach out to us sooner rather than later, as strict time limits apply.
CAN I MAKE A CLAIM?
Before lodging an application, we need to identify whether you are eligible to make a claim. For example:
- if your employer employs 15 or more employees, then you must have completed at least 6 months’ continuous work with your employer before you are eligible to commence a claim;
- if your employer employs fewer than 15 employees, then you must have completed at least 12 months’ continuous work with your employer before you are eligible to commence a claim.
As you can see, careful consideration about your matter needs to be undertaken before deciding whether you should commence a claim for unfair dismissal or not.
Even if you don’t meet the eligibility requirements discussed above, you may still have a claim against your employer. For example, if the reason (or part of the reason) to dismiss you from work was because you made a complaint about your workplace environment or entitlements, then you should contact us, because we may still be able to help you out via an Adverse Action claim.
If I’m eligible to make a claim what happens next?
If you work in Queensland, unfair dismissal proceedings are commenced by lodging a Form F2, Application for Unfair Dismissal Remedy in the Brisbane registry of the Fair Work Commission. If you are a local or State government employee, then you will need to file your application in the registry for the Queensland Industrial Relations Commission.
Once we have established that you are eligible to commence an Application for Unfair Dismissal Remedy, the next step is to focus on the strength of your claim. There are two important points to focus on – they are:
- whether the employer engaged in the right procedure to dismiss you from work; and
- whether, in all of the circumstances, it was fair to dismiss you from work. Put another way, the question becomes – did the employer rely on a ‘valid reason’ to dismiss you from work?
If we believe that you have a genuine and legitimate claim for unfair dismissal, then we’ll be happy to act for you on a no win, no fee basis. Whether you are based in Brisbane or elsewhere in Queensland we can easily represent you as often a face to face meeting is not required.
It is very important to note that an employee only has 21 days from the date of dismissal to commence an Application for Unfair Dismissal Remedy. So, you need to act quickly if you wish to challenge the fairness of the decision to dismiss you from work.
What does the Fair Work Commission consider?
As you might imagine, the facts of each unfair dismissal case are different but there are ‘broad categories’ of workplace events that have been considered in the Fair Work Commission – for example:
- poor performance – not meeting performance indicators set by the employer
- fighting in the workplace
- intoxication at work
- breaching a health and safety directive
- a breach of the employer’s policy
However, just because an employee is alleged to have engaged in certain behaviour, doesn’t mean that the case is not one worth pursuing. Here’s a case example.
One of the leading cases involving fighting in the workplace, is a Queensland based decision. The case is AWU-FIME Amalgamated Union v Queensland Alumina Ltd.
This case is unique, not so much because of the factual circumstances of the case, but because the Commission identified that fighting at work does not necessarily give an employer an automatic right to dismiss an employee from their job. In fact, in this decision, the Commission stated that the extenuating circumstances of the factual matrix of the case needs to be taken into consideration:
The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.
In our view, no case should be judged without considering all of the facts and circumstances relating to the matter.
Don’t delay, talk to us now
At Anderson Gray Lawyers, we are happy to spend time hearing about all the matters affecting your dismissal from employment. If we think you have a genuine and legitimate claim, then we’ll be happy to help you out on a no win, no fee basis.