What outcomes can be sought in an Unfair Dismissal claim?
Many employees, following termination of their employment, will seek legal advice as to whether there is any recourse available to them where they believe that the termination of their employment has been unfair. It is open to such an employee to bring an action as against the employer to seek recourse. The two main outcomes that can be sought by a dismissed employee in an Unfair Dismissal application include reinstatement and compensation.
An order for reinstatement means that the employer must either:
- Reappoint the person to the same position; or
- Appoint the person to another position within the company with terms and conditions that are no less favourable than those on which the person was employed prior to the dismissal.
An order for compensation is designed to compensate an unfairly dismissed employee for losses reasonably attributable to the unfair dismissal. The Fair Work Commission will consider the following circumstances in determining the amount of compensation:
- The length of the employee’s employment;
- The wages that the employee would likely have received if he/she was not dismissed; and
- Any efforts by the employee to mitigate his/her losses such as applying for a new job.
The maximum compensation that can be awarded by the Commission is 26 weeks’ pay in addition to your statutory leave and other entitlements.
The primary remedy is generally reinstatement and is considered before compensation. Reinstatement can however be an inappropriate remedy in some circumstances including where:
- The position that was previously occupied by the employee is no longer available;
- The employer has lost trust and confidence in the employee; and
- The employee can no longer work due to an illness or injury.
In such circumstances the Commission would prefer to make an order for compensation which will be determined by having regard to various factors vis a vis the nature and circumstances surrounding the dismissal. Brydens
Lawyers are experts in the prosecution of unfair dismissal claims on behalf of employees. If you, or someone you know, has been terminated by their employer, and you believe it to be unfair, contact Brydens Lawyers without delay for an assessment of your claim. Strict time limits apply in the making of unfair dismissal claim so do not delay. Contact Brydens Lawyers on 1800 848 848 or at brydens.com.au. At Brydens Lawyers-#WEDO unfair dismissal claims.