Common Pitfalls in Unfair Dismissal Cases
Most employees think an unfair dismissal claim is only about whether the boss had a good enough reason to sack them. However, before the Commission even looks at whether your dismissal was unfair, it first decides whether it has the power to hear your case at all. This is known as “jurisdiction.” Your former employer can lodge a number of jurisdictional objections with a few common ones described below.
For example, employees need to meet the minimum employment period before lodging a claim. For small businesses with fewer than 15 employees, you must have worked at least 12 months. For larger employers, the minimum is 6 months. Falling short of this threshold means the Commission cannot hear your case.
Casual employees also often assume they are automatically covered. But the Commission goes further than that. If your casual job didn’t have a clear expectation of continuing work, you may not qualify to bring a case. Similarly, if you earned more than the high-income threshold and weren’t covered by an award or enterprise agreement, you will be ruled-out from a claim.
Timing is another brutal hurdle. The 21-day deadline to lodge an application is applicable. Even being one day late requires you to prove “exceptional circumstances;” and most explanations fail this test. Employees who thought their case was strong have been shut out simply because they missed the cut-off.
Then comes the question of whether a dismissal was really a dismissal. Many people resign under pressure – after being told “you should probably resign” or “it will look better for you if you quit.” In some cases, the Commission will treat that as a forced resignation and still allow a claim.
Key Takeaway for Employees
If you’ve been dismissed, don’t assume the Commission will automatically examine whether your boss acted fairly. The case may be decided before that point. Eligibility, deadlines, and the legal definition of dismissal can make or break your claim. Knowing these pitfalls in advance can be the difference between having your day in court or being shut out entirely. Contact us now.
