Lodging an Unfair Dismissal or Unlawful Dismissal Claim

Employees who have a legitimate industrial relations complaint or unfair dismissal action that can be brought before Fair Work Australia have an complex process to go through to lodge and run their Claim.

It's now getting even more complicated. If you have been unfairly or unlawfully sacked you need to sure that your claim is lodged in time. Everyone can bring a unfair dismissal, unlawful dismissal or both, subject to some criteria.

These are the rules:

1) You have 14 days to lodge a unfair dismissal claim from the day you were told your sacked or you finished up, whichever is the latter.

2) You have 60 days to lodge a unlawful dismissal claim on the following grounds
(if you're outside the timeline as set out, you may still be able to bring a unfair or
unlawful dismissal claim if you have exceptional circumstances for not lodging on time)

Where you dismissed because of:

a) your race, colour, sex, sexual preference, age, physical or mental disability, marital status,
family or carer's responsibilities, pregnancy, religion, political opinion, national extraction
 or social origin some exceptions apply, such as where it's based on the inherent requirements
of the job.

b) Temporary absence from work because of illness or injury

c) trade union membership or participation in trade union activities outside working hours or,
with the employer's consent, during working hours, non-membership of a trade union,
seeking office as, or acting as, a representative of employees

d) being absent from work during maternity leave or other parental leave

e) temporary absence from work to engage in a voluntary emergency management activity

f) filing a complaint, or participating in proceedings against an employer.

You must meet the following criteria:

3) completed a minimum employment period of at least 6 months (or 12 months if your
employer is a small business employer - fewer than 15 full-time equivalent employees)
at the time of dismissal, either been: covered by an award, or covered by an agreement,
or earning less than $108,300 a year.

4) Regarding unlawful dismissal claims there is no minimum period of employment or
salary limit.

5) Remedies are reinstate you (give you back your job), or compensate you for up to 26
weeks pay (if this is more than $54,150, then compensate you for up to $54,150).

6) If you been made redundant, you cannot bring a claim, however if you belive it is not
genuine you may still be able to bring a claim.

7) if you work from a business that employs less than 15 employees they can dismiss you
providing they have followed a check sheet issued by the goverment, if they haven't followed
it, you can bring a claim. Basically if you have received one warning, and the Employer
has followed a check list they can get rid of you.

Constructive dismissal.

If you have been forced to resign, in other words you have absolutely no choice by the conduct or behaviour of the employer you are entiled to lodge a unfair dismissal claim. At the time of your resignation if you have choice the claim will fail. You have to be able to argue it was impossible to stay there.