Unfair Dismissal

UNFAIR DISMISSAL

SUMMARY OF THE LAW

The Act which applies to most cases of sexual harassment federally is the Sex Discrimination Act 1984.

You should note at the outset that the Sex Discrimination Act 1984 will protect you only against certain forms of sexual harassment. Not all inappropriate behaviour will be unlawful.

INSTRUCTIONS

The key steps in pursuing a claim for unfair dismissal are as follows:

1. Determine whether you have been "dismissed".

2. Determine whether a particular dismissal is "unfair" or "unlawful".

3. Determine which is the appropriate tribunal or court that you should try to access to obtain redress if you believe your dismissal was unfair.

4. What is it that the tribunal or court can do if it concludes your dismissal was unfair, and what orders can it make in your favour.

DO I HAVE A CLAIM?

There are certain preliminary matters that have to be clarified first before a person can reach the conclusion that they might have a claim for unfair dismissal.

In many cases, these preliminary matters are not difficult to satisfy but nevertheless they do need to be considered and where there is doubt about any one of them, professional advice will be required:

1. Was the relationship between yourself and the person or entity that you believe dismissed you that of employee and employer?

Generally speaking, an unfair dismissal claim is only available to a person who was an "employee" according to the legal definition of that term. Of course, most people who perform paid work for another person or entity are employees but sometimes there is doubt.

For example, there are various categories of "contractors" who perform work for another and look like employees but according to the law are not. Often of course the employer has acknowledged the person working for him as an employee by such steps as confirming the situation in writing.

In general terms an employee is a person who provides personal service to another for reward in circumstances where the other person exercises control over the person who performs the work (or at least has the right to control that person). The courts look to a number of factors to determine whether a person is an employee such as full-time work, provision of a regular weekly pay, personal service that cannot be delegated to another person, issuing of group certificates, provision of leave entitlement and so-forth.

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