Tag Archives: unfair dismissal

Unfair dismissal – How do you know if you’re in the right?

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Ideally you would prevent the all out conflict at work and resort to many different measures before coming into the situation to be unlawfully dismissed from your job. Topic of this piece will be to help you figure out if your employment termination was fair or not. Were you unreasonable, or did the employer act irresponsibly and ultimately illegally.

The answer to this question can either be a positive or negative for exactly the same case and it will depend what country you live in, what is your state of occupancy and goes even deeper into what industry and employment award and contract may you be employed under. This blog will deal with employment law in Australia something that folks at McArdle Legal, employment lawyers in Sydney deal with on daily basis.

How to prevent unlawful termination of employment

Before we delve into the legalities of unfair dismissal what are some of the steps you will have employed to prevent your employment termination just briefly as this is a topic of a whole other new post. There are things that you can get sacked in Australia and walked off the job instantly. Some of the instant dismissal breaches are working under the influence of alcohol and illicit drugs, stealing and fraud. First two are self explanatory however what constitutes fraud at work. Most people would think that merely having a sick day off (known as sickies in Australia!) when you in fact you are not sick will constitute an instant dismissal case as you were willingly accepting money (your sick leave entitlement) while you were not sick and enjoying the sunshine on the beach with friends as an example.

There are times when employers are being unreasonable and there is very little you can do about not getting yourself fired, however you want to make sure that you have the basics and know what you can and can not do. A simple rule of thumb is that if it seems illegal – why do it, instead be the best employee you can be; business owners and large companies are in business of making money and it is not all that easy to run a business with ever so changing market conditions and competition landscape.

Unlawful termination or not

Should push come to shove and for one reason or another you’ve been sacked from your job, how do you know if you were in the right or not. Provided that you don’t fulfil any of the cases of instant dismissal, most other scenarios can be argued for and against and successfully for that matter. From experience, companies will normally fight any unfair dismissal cases vigorously as they would have tried to find the compromise before resorting to the option of termination of your employment. This is why we stress again that you really want to make sure you don’t get fired, really simple.

unfair dismissalBut, we’re here now and you need to find out what your employment contract says, under what particular letter of law you fall under – what your particular employment award says. These are all very important questions and you need to go onto a fact finding mission about your employment status. Once you have looked into that, you will want to compare that to the basic minimum 10 National Employment Standards that are the bare minimum but essential worker’s rights in Australia. They deal with hours of work, hourly rates of pay, your other entitlements like medical, sick leave, annual leave. Fair Work Ombudsman is Australian Government department that deals with these matters and you are strongly advised to head over to their website. You may even give them a call to just double check that you’re reading employment cases correctly.

Once you are armed with the information and hopefully you are positive you’ve been unfairly dismissed, it is time to get yourself a solicitor. It is best to get a law firm that specialises in employment law as they will be dealing with cases like yours on daily basis. From there on your unlawful dismissal claim is in their hands. This does not however rid you of a responsibility to gather all the relevant information so your solicitor can piece all the bits of information in such a manner that your case is fair and convincing should you end up going to court. Since the court process is a drawn out one, you will want to hope that a settlement is achieved before the court. Another thing to consider is that you are responsible for your solicitor’s fees so should the offer be reasonable in your opinion and the opinion of your legal counsel don’t hesitate to accept it and move on with your life. If you are reading this article, you are most likely within the legal process and we wish you best of luck.