Since the introduction of the Fair Work Act, new provisions in relation to Unfair Dismissal have come into effect. In general, employees who are employed by incorporated companies are able to bring unfair dismissal claims, as long as:-

• they have been employed for more than 6 months (unless the employer is a Small Business Employer, in which case it is more than one year)
• the dismissal is consistent with Small Business Fair Dismissal Code
• their employment is covered by a Modern Award or is subject to an enterprise agreement
• their rate of pay is not more than the regulated amount (which is currently approximately $129,300.00 per annum).
• their termination is not actually a genuine redundancy

In order to qualify as a ‘Small Business Employer’ the employer must employ fewer than 15 people. It is irrelevant whether those 15 people are full time or part time.

We are able to advise as to whether employers can be subject to unfair dismissal claims or whether employees have an entitlement to unfair dismissal claims and we can also advise on the Small Business Fair Dismissal Code.

The most important thing to note is that the time frame in which an unfair dismissal application can now be made by an employee is 21 days. That time period can only be extended in particular circumstances which need to be shown by an employee who submits an unfair dismissal application after the 21 day period.

Legal Costs

It is very difficult for a successful party in an unfair dismissal claim to obtain a costs order against the other party. The only circumstances where costs can be awarded is where  one party is found to have commenced or responded to an application vexatiously or without reasonable cause, or in circumstances where it is quite obvious that a particular party had effectively no prospects of success in bringing or defending a claim.

Conciliation

Where a person qualifies for an unfair dismiss claim under the Fair Work Act, the matter is dealt with by Fair Work Australia and FWA will firstly conduct an informal private and confidential conciliation to try to resolve the matter by agreement.

At Maguire & McInerney we regularly assist our clients as participants in that conciliation process.