Wrongful Termination Lawyers

Dismissal is when an employee’s employment contract has been terminated by the employer. A dismissal can also come in the form of an employer pressuring a resignation from the employee.

Employees who have accepted a fixed-term employment contract are not dismissed when that employment ends as a result of the fixed-term concluding and will not be deemed a wrongful dismissal. However, if a fixed-term employment contract is ended early by the employer, then that is a dismissal.

Employees who are on a training arrangement are not considered to be wrongfully dismissed if that arrangement ends before the intended date.

Constructive dismissal happens in the event of an employee resigning due to the pressure of an employer who is not showing appropriate conduct. The employer may directly tell an employee to resign, or the employee might be forced to resign with no other course of action in those circumstances.

There is a difference between wrongful dismissal and termination. Termination is when a contract ends by either the employer or employee and if an employee does believe that the termination breaches contract, then they may be supported in bringing a claim forward for breach of contract.

Wrongful dismissal, on the other hand, is when employees rights are not upheld under the Fair Work Act 2009. If you would like to understand your rights as an employee and whether you have been wrongfully dismissed, you can access this information from the Fair Work Commission.

Many employees in Victoria are unaware that they are considered to be “national system employees”, which ultimately means that a wrongful dismissal claim can be brought forward in most cases. However, there are certain exclusions that do prevent employees from applying to make a claim. Those exceptions are:

• Employees that have only been employed by an employer for no more than 6 months, or 12 months if that employer is a small business.
• If the dismissal is compliant with the Small Business Fair Dismissal Code and as a result not in any breach of contract or conduct.
• If the employee is made redundant and that is a genuine fact in the specific circumstances.
• If the employee chooses to resign and that decision is made personally and is not forced by the employer.
• If the employee is employed on an annual rate that is more than the regulated amount, and as a result are not covered by an award or enterprise agreement. For example, that amount is $148,77 as of July 1, 2019.

There is a time limit in applying for wrongful dismissal or wrongful termination claims. That timeframe is currently 21 days, although this can be reviewed by the Fair Work Commission on a case by case basis in certain circumstances, although it is rare that a case is accepted after this 21-day timeframe.

As with employment law, each claim is different and so there is not a straightforward outcome that can be applied to all cases. There are particular circumstances where costs can be awarded by the Fair Work Commission. This occurs when they are satisfied that the party who started or responded to the said application without reasonable cause, or that the application had no prospects for success.

Unfortunately, casual employees are generally not protected by wrongful dismissal or wrongful termination. However, if a casual employee was employed under a regular basis with a reasonable expectation that this employment would be continuing, there could be grounds to make an eligible claim. In this event, reach out to our McDonald Murholme employment lawyers to explore your options and discuss the circumstances of your casual employment.

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