Question 1

What is unfair dismissal?

Accepted Answer

Under section 385 of the Fair Work Act 2009 (Cth), unfair dismissal occurs when an employee's termination is considered "harsh, unjust or unreasonable." This definition encompasses several important factors, as outlined by section 387 of the Act, and further clarified by the Fair Work Commission's Unfair Dismissals Benchbook.

A dismissal may be considered unfair if:

1. Harsh: The dismissal is overly severe, taking into account the employee’s personal circumstances, length of service, employment record, age, health, and any difficulties they might face in obtaining alternative employment.
2. Unjust: The dismissal lacks a valid reason related to the employee's capacity or conduct, or is based on inaccurate or unsubstantiated allegations.
3. Unreasonable: The dismissal procedure failed to accord procedural fairness. Procedural fairness involves notifying the employee of reasons for dismissal, providing the employee a chance to respond to allegations, and genuinely considering the employee’s response before deciding to dismiss.

The Fair Work Commission assesses unfair dismissal claims by considering specific factors outlined in section 387 of the Act, which include:

• Whether there was a valid reason for dismissal, related to the employee's capacity or conduct.
 • Whether the employee was properly notified of this reason.
 • Whether the employee was given an adequate opportunity to respond.
 • Whether the employer allowed the employee to have a support person present during any discussions about dismissal.
 • If the dismissal relates to unsatisfactory performance, whether the employee was warned about their performance issues and given an opportunity to improve.
 • The size of the employer's business and whether a dedicated HR department or specialist existed to manage such processes.

Additionally, small businesses (defined as those with fewer than 15 employees) must demonstrate compliance with the Small Business Fair Dismissal Code, which outlines simpler but essential procedures to fairly manage employee dismissals.

Understanding these considerations helps employees recognise whether they might have grounds to challenge their dismissal and seek remedies such as reinstatement or compensation through the Fair Work Commission.

Question 2

Who is eligible to make an unfair dismissal claim?

Accepted Answer

According to section 382 of the Fair Work Act 2009 (Cth), an employee is eligible to lodge an unfair dismissal application if they meet the following criteria:

1. Minimum Employment Period:
 The employee must have served a minimum period of continuous employment. This is:
    • 6 months for employers with 15 or more employees.
    • 12 months for employers considered a small business (fewer than 15 employees).

1. Income Threshold or Award/Enterprise Agreement Coverage:
 An employee must earn less than the high-income threshold (currently adjusted annually and specified by the Fair Work Commission) unless their employment is covered by a Modern Award or an Enterprise Agreement. Employees earning above the threshold can still claim unfair dismissal if their employment terms are covered by these agreements or awards.
2. Timeliness of Application:
 Applications must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. This time limit is strict and can only be extended under exceptional circumstances, such as severe illness or unexpected circumstances preventing timely application.
3. Employment Type Considerations:
 Casual employees may be eligible if they have been employed on a regular and systematic basis and had a reasonable expectation of ongoing employment.

Employees who meet these criteria are considered "protected from unfair dismissal" under Part 3-2 of the Fair Work Act 2009. Understanding these eligibility requirements is essential to determine whether an employee can pursue a claim and seek remedies such as reinstatement or financial compensation.

Question 3

What is a no win no fee agreement?

Accepted Answer

A no win no fee agreement, also known as a conditional fee agreement, is a legal arrangement commonly used in Australian law firms. It allows individuals who may not have the financial means to pursue legal action to still access justice and seek compensation for their claims.

Under this type of agreement, if you engage a lawyer or a professional advocate on a no win no fee basis, it means that you will only be required to pay legal or professional fees if your case is successful and results in a favorable outcome. In other words, if your claim is unsuccessful and does not result in any compensation being awarded or settlement reached, then you will not be liable for any legal or fees.

The purpose of this arrangement is to ensure that individuals have equal access to justice regardless of their financial situation. It provides an opportunity for those who may otherwise be unable to afford representation the ability to pursue their claims without upfront costs or financial risk.

It's important to note that while the fees may be contingent upon winning the case, there may still be other costs associated with pursuing litigation such as filing fees or expert witness expenses.

These additional costs are typically separate from the professional fees and would need to be discussed with your chosen representative.

When entering into a no win no fee agreement with service provider, it is crucial that both parties clearly understand and agree upon the terms outlined in the contract.

This includes discussing how costs will be calculated if your case is successful and what percentage of any compensation awarded will go towards covering these costs.

As professional Employment and Human Rights Advocates, we also offer a no win no fee agreement in suitable cases.

Contact us to find out more. Call 1800NOWINNOFEE

DISCLAIMER: This is an article about what we understand a no-win no no-fee agreement to be, it is NOT legal advice, nor is it an advert for legal services.

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