employment law
Unfair dismissal
If you think you were unfairly terminated by the employer, you may be able to apply to the Fair Work Commission for unfair dismissal. The Fair Work Commission handles and decides cases of unfair dismissal. An employee who wishes to apply to the Commission must do so within 21 days of their employment being terminated.
Requirements
For an Unfair dismissal to have occurred, the employee must make an unfair dismissal remedy application. They must meet the minimum employment period, which for a small business (Less than 15 employees) is one year and for a non-small business (more than 15 employees) is six months. The commission must also find that the employee was dismissed, the dismissal was harsh or unreasonable, and it was not a case of redundancy.
Not an Unfair Dismissal
A dismissal is not considered unfair if the above conditions are not met. In addition to this, it is not considered an unfair dismissal if the person was employed as a casual worker, unless they were employed on a regular basis and under the impression that the job would continue. There are also no grounds for unfair dismissal if the person is a contractor, or earns $158,500 or more.
How to make an application
To apply to the Fair Work Commission for an unfair dismissal, you may visit the fair work commissions website. The fee to lodge an application is $74.90, which can be waived depending on how serious the financial harm is.
Remedies
Available remedies if unfair dismissal was found by the Commissioner include that the employer:
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Give the unfairly dismissed employee their job back, a similar job, or their job in a different part of the organisation;
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Pay the employee any wages that they may have lost since being fired; or
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Pay the employee a sum of money if their job is no longer available.
Breach of General Protections
Breach of general protections is different to unfair dismissal as it involves an employee being dismissed for reasons that are against the law, such as discrimination, executing a workplace right or being a trade union member. If you have been dismissed from work and believe that the dismissal is in breach of one of the general protections, you may apply in a similar way to the above.
Once the application is submitted, the fair work commission will send a copy to your employer, they will also set up a conference between you and your employer. Once your employer receives their copy of your application, they will have 7 days to respond. One of the aims of the conference is for both parties to reach an agreement and possibly settle.
If parties cannot agree or settle at the conference then the commission member will issue a certificate confirming that there was no settlement, and provide these to both the employer and employee. Once the employee has received the certificate, they have 14 days to decide whether they will apply to arbitration (employer has to agree to this), or whether to take the case to a federal court. In the certificate, the member will state whether or not they believe that the employee has a reasonable chance of success or not.
Arbitration
To apply, parties must notify the commission by signing and filing a form F8B, which can be found on the fair work commissions website. In arbitration, the member is the one who makes the final decision and decides whether any compensation should be awarded. The member’s decision is also binding, however either side can appeal the decision.
Going to Court
If arbitration is not an option or one party does not agree to go, then the case can be brought to a federal court. Just as with arbitration, a party must apply to the federal court within 14 days of receiving the certificate issued by the commission member.
Workplace Injuries
Injuries in the workplace are common. If you have sustained a workplace injury you should seek immediate medical attention no matter how minor the injury is. It is important to note that you do not have to see a company GP, it is encouraged that you see your own personal GP as they know you and your medical history.
Your employer must be notified in writing of any work-related injury or illness within 30 days of the incident or diagnosis. You should request a certificate of capacity from your doctor, as this is an official document that you will need to provide to WorkSafe in order to receive weekly payments. Once you have this document from your GP you can complete the workers injury claim form located on the WorkSafe Victoria website. WorkSafe Victoria will let you know whether your claim has been successful within 28 days of submitting it. If it has not been successful, you may appeal if you believe the claim was unfairly rejected.
What you can claim for
If you received medical treatment for your workplace injury, then you may be able to claim your treatment expenses. If your injury has not restricted or stopped you from working in your normal capacity then you will not require a certificate of capacity.
You can also claim for both medical expenses and weekly payments if you are injured, need time off work, and received medical treatments.
The injury sustained does not have to be physical, you can also make a claim for provisional payments for a work-related mental injury. This means that you will be entitled to early support for reasonable treatment. To receive theses payment, you must ensure that you tick that you have a mental injury in the workers injury claim.