Adelaide unfair dismissal lawyer Ian McLean writes about the legal options available to employees who have been sacked.
There are two jurisdictions for unfair dismissal cases. The Fair Work Act is for federal matters, which is relevant to employees who are working for companies operating in other states as well as from South Australia. There is also the Fair Work Act for the state jurisdiction, which deals with people employed under contracts or awards in this state.
The provisions in each Act are similar. The main difference is that matters in the federal jurisdiction must be lodged within 14 days of the employee’s termination, compared with 21 days for state matters. If proceedings aren’t issued within that time, an extension is required from the Industrial Commission.
The maximum compensation that can be recovered (in either jurisdiction) is six months. Usually the longer someone has worked for an employer, the more compensation they are likely to receive.
The first step in an unfair dismissal case is a conciliation conference. Both parties are involved, and the Commissioner will try and resolve the matter before it goes to a trial in Court.
If the matter still cannot be resolved, the Commissioner makes a recommendation about the circumstances of the employee’s termination and the position of the both parties.
From there, the case goes to a trial where evidence is taken and a decision is made as to re-employment or compensation.
Unfair dismissal cases have changed dramatically over the last ten to 20 years. There was always an emphasis on the need for an employer to give the staff member a warning in relation to their conduct, before termination took place. Now, that really only applies in performance related cases, where people aren’t working to capacity or aren’t, in the employer’s view, doing as they should.
In clear instances of serious or wilful misconduct, an employee can be dismissed. Examples can be alcohol related issues, assault and theft. The Commission is unlikely to be involved in these type of matters, and it’s doubtful that any form of compensation or re-employment will be awarded.
For issues outside of serious and wilful misconduct, the Commissioner will look to see if the employer has offered assistance, guidance or counselling to the employer before termination in deciding whether or not the dismissal was fair.
The whole concept of unfair dismissal relates to natural justice. An employee is entitled to know why they have been dismissed and the reasons.
If your employment has been terminated without explanation or you haven’t been given the opportunity to respond, it is important to seek legal advice as soon as possible.
Ian McLean is a Consultant at Tindall Gask Bentley Lawyers. Contact the firm’s Adelaide office on 8212 1077.
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