Unfair dismissal: what to do if you are sacked
13th September 2016
Graham Harbord, Johnston Withers
You have just been dismissed from your employment. You think the dismissal was unfair. You are angry and upset and it’s time to see a specialist employment lawyer. MSI's Adelaide law member Johnston Withers provides a handy guide on what to do if you have been given an unfair dismissal.
You should not delay in getting legal advice. You only have 21 days from the date the dismissal takes effect to lodge an application in the Federal Fair Work Commission for instance, seeking reinstatement or compensation arising from an unfair dismissal.
Here is some initial information and a checklist to make sure that the lawyer gets all the information needed at the first appointment and that you get the most out of that appointment.
- Do a brief chronology of what has happened and what led up to the dismissal. Put the dates on the left-hand side and what happened on the right-hand side. This will enable the lawyer to review a quick snapshot of some of the main issues.
- Be organised, take all relevant documents with you in chronological order. If in doubt, take the document.
- Take a relative or friend to the interview if you like. You are naturally feeling upset. A trusted relative or friend can listen to the advice and discuss your options with you afterwards.
Here is some information that your lawyer will need to know, depending upon the circumstances.
- The name of your employer (take a payslip and letter from the employer which sets this out).
- Date you commenced employment.
- Date of dismissal and a copy of the letter of dismissal (if there is one).
- A copy of any written contract of employment and/or job specification.
- Details of your salary and any other employment benefits.
- Does the employer have less than 15 employees (part-time or full-time) or did the employer have less than 15 employees (part-time or full-time) at the date of dismissal?
- Are you a casual, full-time or part-time employee.
- Is your employment covered by an Award or Enterprise Agreement? If so bring along the name of that Award or Enterprise Agreement if possible.
- Reasons for the dismissal. Did this relate to alleged misconduct, poor performance or redundancy?
- Any notes as to what was said at the actual dismissal meeting.
- Any other information as to whether a reason for the dismissal amounted to discrimination against you because of your sex, disability or age or any other attributes set out in the Federal or State Discrimination Legislation.
- For a dismissal to be considered unfair by the Fair Work Commission the dismissal must be “harsh, unjust or unreasonable”. Why do you say the dismissal meets this description?
- What remedy do you want. Reinstatement is the primary remedy under the Fair Work Act. Understandably however you may not want reinstatement but rather compensation. The limit on compensation is generally 6 months’ salary equivalent in the Fair Work Commission.
- If your mental condition is such that you need to see a doctor, you should do so as soon as possible. Many people who are dismissed suffer anxiety and depression as a result. In addition to a claim for unfair dismissal you may also be entitled to make a claim for Worker’s Compensation. Your lawyer can discuss this with you further.
The more organised you are, and the more you can provide the information set out above, the more helpful it will be for your lawyer to provide you with clear advice at the least possible cost. But don’t let not having everything put you off making an appointment. Remember, you need to act quickly as the 21 day time limit imposed by the Fair Work Act is very strict.
About Johnston Withers - Adelaide
Johnston Withers is a mid-sized South Australian law firm with a social conscience. We have been serving our Adelaide and regional SA clients for over 70 years.
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