It can happen anywhere at anytime. You may be bullied by your boss or your colleagues. Your employment contract may be unfair. You may even be discriminated against by your employer. In all of these circumstances the advice of a reputable lawyer is invaluable.
It may be hard to believe with the current workplace reforms, but there are laws in place protecting you from unfair or wrongful dismissal. Combined with the advice of a solicitor, these laws serve to protect your sense of job security, encourage negotiations between you and your employer and sanction the well being of you and your family.
Wrongful dismissal: fired contrary to your contract of employment
If your employment is terminated in a way that is contrary to the terms and conditions of your contract of employment, then you may have an action against your employer for “wrongful dismissal.”
Circumstances amounting to wrongful dismissal
There are many circumstances that amount to wrongful dismissal and are in breach of contract including:
- Your employer has not given you enough notice of the termination.
- Your employer has not followed procedures and obligations pursuant to your contract of employment prior to your dismissal.
- Your employer “repudiates” your contract, which means failing to perform any obligation under your contract serious enough for you to terminate the contract.
- Your dismissal is in contravention of award entitlements or statutory provisions applicable to your employment.
- You have been dismissed contrary to anti-discrimination legislation, which prohibits termination from your employment on the grounds of factors such as your age, sex, religious affiliation, disability, disease or sexuality.
- Your have been dismissed contrary to legislation protecting your right to “freedom of association.” This is the principle protecting your right to freedom of association with others, including the right to form and join trade unions or other organisations to protect and advance your interests.
Remedies available for wrongful dismissal
If the termination of your employment amounts to wrongful dismissal, you may be able to recover damages to compensate for:
- Wages or salary that you have been prevented from earning as a result of your wrongful dismissal.
- Work actually performed for which you have not been paid.
- Wages due under your contract or award.
Unfair dismissal: termination of employment that is “harsh, unjust or unreasonable”
Under New South Wales legislation, you may have an action for unfair dismissal if you can prove that your employment was terminated in circumstances that were “harsh, unjust or unreasonable”. What is considered “unfair” will depend on the circumstances and nature of your termination.
Circumstances amounting to unfair dismissal
If you have been dismissed from your job, you need to be on the lookout for the warning signs of any unfairness such as:
- Your employer did not give you any prior warnings that your conduct may lead to dismissal.
- The allegations raised against you were not explained clearly to you.
- You had little or no opportunity to be heard and to answer the allegations raised against you.
- You did not receive a written statement outlining the reason for your dismissal, even though you requested one.
Unfair dismissal may also be prohibited by your contract of employment, or by an award or statute applicable to your employment.
Remedies available for unfair dismissal
One of the most common remedies for unfair dismissal is reinstatement (re-employment), in the same or similar position that you held prior to your dismissal. This may also include compensation for payment of wages lost from the date of dismissal to the date of the order for reinstatement.
Take swift action
It is advisable to seek legal advice as soon as you feel something odd in the air. This may mean at the time you sense increasing disaccord with your employer or immediately upon termination of your employment. Hiccups in workplace relations, when left untreated, can leave an emotional and financial scar upon the unfairly or wrongfully dismissed worker. So talk to us at Solari Legal today so that your dismissal is provided the appropriate remedy.
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