Unlawful Termination Claims

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Making an Unlawful Termination Claim

An nnlawful termination claim can take immense time for those who have not done it before. That time and your claim can go to waste if it is not lodged the right way within the given timeframe of 21 days. We can lodge an unfair termination claim the right way, Maximizing your chance of getting the largest compensation you deserve.

Compensation may be awarded to an employee who was unlawfully terminated if the Fair Work Commission is satisfied that reinstatement is inappropriate.

Compensation

Compensation is designed to compensate unlawfully terminated employees in lieu of reinstatement for losses reasonably attributable to the unlawful termination. As a result, compensation cannot be awarded for shock, distress or humiliation. When determining the amount of compensation that may be awarded, the Fair Work Commission will take into account the employees’ length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated, the efforts of the employee to mitigate the loss suffered because of the termination, such as looking for alternative work, the amount of remuneration earned by the employee from employment or alternative work during the period between the termination and making the compensation order. The compensation cap for an unlawful termination claim is the lesser of the amount of remuneration received by the person, or that they were entitled to receive (whichever is higher) in the 26 weeks before the termination, or half the amount of the high income threshold immediately before the termination.

Rights Which Are Protected

  1. temporary absence from work because of illness or injury (within the meaning of the Fair Work Regulations 2009);
  2. trade union membership or participation in trade union activities outside working hours (or during working hours with the employer’s consent);
  3. non-membership of a trade union seeking office as, or acting or having acted in the capacity of, an employee representative;
  4. the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
  5. race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  6. absence from work during maternity leave or other parental leave;
    temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Making An Unlawful Termination Claim

If an employer has terminated an employee and they believe this action was done because of prohibited reason, the employee has 21 calendar days after the termination took effect, to lodge an application in the Fair Work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving the dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings. If either party objects to a conference, an application for an interim injunction can be made and the matter can proceed directly to court.

Who Can Make A Claim

If an employer has terminated an employee and they believe this action was done because of prohibited reason, the employee has 21 calendar days after the termination took effect, to lodge an application in the Fair Work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving the dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings. If either party objects to a conference, an application for an interim injunction can be made and the matter can proceed directly to court.