Sisters-in-law: legal advice on your rights in the event of dismissal

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Welcome to Sisters In Law, news.com.au’s weekly column solving all your legal problems. This week, our resident lawyers and real sisters Alison and Jillian Barrett of Maurice Blackburn advise you on your dismissal rights.

Question:

I was recently searched for a job and was enticed after they offered an attractive six figure plus bonus package.

I hadn’t looked for a job and had been happy with the same company for over a decade, but the offer was too hard to resist.

However, after postponing my leave and only a few days before my departure, my new company made my role redundant.

My old company had found my replacement, so I had no job! If this company knew it was in trouble, why did it pursue me so aggressively?

Is there anything I can do because I have nothing left and I have no job! – Shanna, Victoria

Answer:

Shanna, this news would have been a great shock and has now left you in a very stressful situation.

It is important that you understand your termination rights so you know how best to handle the situation.

If the dismissal is not genuine or legal, then it can be challenged as unfair dismissal under fair labor law.

These laws apply whether or not you started in the job, as long as you had a signed contract or agreement to start with the employer.

Certain criteria must be met for it to be a true dismissal, including:

1. The job you were hired to do no longer needs to be done by anyone. This can be due to a variety of reasons, including an operational change in the way work is done, a decrease in incoming work, or even the insolvency of the company.

2. In addition, the employer must have consulted with you as required by the award, works agreement or other registered agreement under which you were employed.

With regard to the consultation process, most agreements require a process to be followed which may include informing you of the proposed changes, taking into account your views, including any alternative proposals you have put forward (reduced hours or job sharing).

Your employer should also have clearly explained why your work no longer needs to be done.

In certain situations, such as this, there may be opportunities for the affected employee to be redeployed within the organization, taking into account their experience, skills and qualifications and the requirements of the role. alternative.

From your question, it is not clear whether this consultation took place.

Since you didn’t start with the company, if they haven’t consulted with you enough, it will be very difficult to know where you stand. So you need to make sure to contact them and ask them these questions.

If the above criteria were not met, you could potentially challenge it through the Fair Work Commission (FWC).

If the reasons given for your termination appear to be discriminatory – such as age or gender – this is illegal under the general protections of fair work law.

Only 21 days to file an application

To challenge the dismissal, you can seek legal advice or contact the FWC immediately as you only have 21 days from the date of the dismissal to file a wrongful dismissal claim disputing it.

You should also check the payment details your employer has given you, as often times the employer has not paid the employee their full termination rights.

National employment standards set out minimum termination rights, but some employees have an additional right in a modern award, company agreement, or their employment contract. Also check to see if your former employer has a dismissal policy.

Severance pay is based on years of continuous service. Unfortunately, due to the short period of your employment, you are unlikely to be entitled to any additional payment on top of your payment for the redundancy notice period and annual or long-term leave entitlements.

Consider what kind of outcome you expect from the CC, as there may be possibilities to resolve the issue without going through a hearing; for example, do you want another position within the company, an apology, a written reference, support in finding another job; keeping in mind that the earnings cap is the lesser of 26 weeks’ pay or $74,350.

To enforce your legal rights and not let your employer get away with this conduct, seek legal advice or contact Fair Work.

This legal information is general in nature and should not be considered or relied upon as specific legal advice. Persons requiring specific legal advice should consult a lawyer.

If you have a legal question you would like Alison and Jillian answered, please email [email protected]

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