How to Claim For Unfair Dismissal - By: Silas Swanson

The basic award is given to reflect that the employees rights have been completely breached, and the employee is allowed to this compensation even if he has suffered no financial loss and contains walked straight into an additional job. The basic award is calculated from your formula which takes into account the number of years that this employee has worked for any employer and his average weekly pay (capped at?? 380). The basic award is limited to only around?? 11, 000.

The compensatory award is inclined to reflect any financial or other losses which the employee has suffered on account of being unfairly dismissed. It may need into consideration the lack of wages, the difficulty which the employee may have locating a new job, the loss of any other benefits say for example company car or health-plan, and the reality that when he does find a new job, the employee will need to work for a year before he is protected from unfair retrenchment. The total amount with the compensatory award is limited to a maximum of approximately?? 65, 000.
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The Fair Work Act 2009 (Cth) ('the Act') accessories significant changes to unjust dismissal laws and how claims will be produced and processed. The relevant parts of the Act entered into force on 1 July 2009 contained in the Federal Government's objective to straighten out the controversial restrictions to help unfair dismissal set by the previous Government through WorkChoices, and to make a more efficient and available dispute resolution mechanism for employees and employers.

All unfair dismissal claims is going to be managed by Fair Operate Australia ('FWA'), the brand new and independent workplace relations tribunal created under the Act, as part of its assumed responsibility for all industrial relations matters together with dispute resolution. The Australian Industrial Relations Commission might therefore stop operating with 31 December 2009, once FWA is established and old claims have been completely resolved.

The Act applies to all employees in Victoria, ACT and the Northern Territory. It contains a restricted application in many other states, where it only affects those employees who ? re;

• employed by a constitutional corporation;

• utilized by the Commonwealth authority; and

• a waterside member of staff, maritime employee or flight crew officer in interstate and overseas trade or trade.

Accordingly, employees in NSW who don't fit within the above categories will still be governed by NSW State legislation and workplace awards.

Unfair Dismissal

The Act is consistent with previous legislation in its recognition of unfair dismissal for the reason that termination of an job contract in circumstances which can be 'harsh, unjust or unreasonable'. Such circumstances take into consideration whether there was a valid reason for the dismissal and whether or not the employee was given notice of, and an opportunity to respond to, the same.

Implications for Small businesses

Small company employers may now find it more difficult to stop employment contracts. Under the previous unfair dismissal provisions of the Workplace Relations Act 1996, employers who employed less than one hundred employees were guarded from unfair dismissal claims as their employees were excluded from bringing an application. This is no longer the outcome, however eligibility requirements to make a claim are slightly different for employees of a small business, which is defined through the Act as an employer who employs fewer than fifteen employees during the time of the relevant dismissal.

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