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What Classifies A Wrongful Termination in Melbourne?

Almost all Australian employees are protected from unlawful or wrongful dismissal (only some are protected from unfair dismissal). High-income employees including executives, casual employees, even employees serving a probationary period are covered by the Fair Work Act. The termination of employment is wrongful when it is for the wrong reasons. The wrong reasons are often referred to as prohibited reasons and include wrongful discrimination by reason of age, colour, creed, parental responsibilities, pregnancy, and political opinion. A proven wrongful dismissal usually results in a fine or penalty against the employer because it is socially unacceptable, not merely unfair, or unjust (commonly an unfair dismissal).

Wrongful dismissals extend to protected workplace rights. In Australia, it is recognised that people have the right to speak up against their employer where they are being mistreated in terms of statutory rights, common law rights and contractual rights. In short, the employer must not take adverse action against an employee who exercises certain rights. The Fair Work Act defines these unique general protection provisions.

Claims of wrongful dismissal under the general protection provisions are difficult to prosecute. Nevertheless, McDonald Murholme has actively pursued workers rights in this area to a greater extent than anyone else. It has the experience required. If you would like to explore your options regarding wrongful dismissal legal representation through the Fair Work Commission call now to speak to one of the team.

You do not have to wait until you are dismissed before you call McDonald Murholme. If you are experiencing challenging and unlawful treatment at your workplace, our team is ready to provide guidance and walk you through options for moving forward.

Having represented many employees against wrongful termination in Melbourne, our employment lawyers have maintained a reputation for achieving top results.

Our clients' satisfaction is pivotal to our own success.

  • July 2020

    I wouldn't hesitate to recommend McDonald Murholme. From the initial consultation, right through to the resolution process, the entire team was supportive, knowledgable and approachable and made what can be a difficult situation much easier. Specifically Trent and Alexandra provided a high level of service, and engaged with me in a very personable manner. I am extremely satisfied with the service I received.

  • July 2020

    I couldn't recommend the team from McDonald Murholme more. Mr Sam Nottle was efficient, professional and achieved a wonderful result. If you are questioning whether to go ahead with an employment matter legally, I would urge you to do so. The team at McDonald Murholme made the process easy & reduced all of my anxiety and stress. Thank you again, Mr Nottle & team, I can't express my appreciation enough.

  • June 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.

  • May 2020

    Extremely happy with the service received from all the staff members i had to deal with. The lawyer allocated for my case (Michael Kriewaldt) was extremely professional and handled the case very smoothly. Highly recommend their services.

  • May 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.

  • April 2020

    The solicitors at the firm were very prompt and actioned my complaint against my employer very quickly. I obtained the result I wanted, in fact, I got a better result than what I had originally asked for. I was very pleased with the results and would highly recommend McDonald Murholme.

  • March 2020

    I would like to say that McDonald Murholme have treated me with nothing but professionalism and also great service. Trent, a principal in the firm is attentive to your needs and will ensure your case is handled with care and mindful consideration to all parameters involved.

Wrongfully Terminated?

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Wrongful Termination Frequently Asked Questions

What is the definition of wrongful dismissal?

Dismissal is when an employee’s employment contract has been terminated by the employer. A dismissal can also come in the form of an employer pressuring a resignation from the employee.

Employees who have accepted a fixed-term employment contract are not dismissed when that employment ends as a result of the fixed-term concluding and will not be deemed a wrongful dismissal. However, if a fixed-term employment contract is ended early by the employer, then that is a dismissal.

Employees who are on a training arrangement are not considered to be wrongfully dismissed if that arrangement ends before the intended date.

What is constructive dismissal?

Constructive dismissal happens in the event of an employee resigning due to the pressure of an employer who is not showing appropriate conduct. The employer may directly tell an employee to resign, or the employee might be forced to resign with no other course of action in those circumstances.

Is there a difference between wrongful dismissal and termination?

There is a difference between wrongful dismissal and termination. Termination is when a contract ends by either the employer or employee and if an employee does believe that the termination breaches contract, then they may be supported in bringing a claim forward for breach of contract.

Wrongful dismissal, on the other hand, is when employees rights are not upheld under the Fair Work Act 2009. If you would like to understand your rights as an employee and whether you have been wrongfully dismissed, you can access this information from the Fair Work Commission.

When can I apply for wrongful dismissal in Melbourne?

Many employees in Victoria are unaware that they are considered to be “national system employees”, which ultimately means that a wrongful dismissal claim can be brought forward in most cases. However, there are certain exclusions that do prevent employees from applying to make a claim. Those exceptions are:

  1. Employees that have only been employed by an employer for no more than 6 months, or 12 months if that employer is a small business.
  2. If the dismissal is compliant with the Small Business Fair Dismissal Code and as a result not in any breach of contract or conduct.
  3. If the employee is made redundant and that is a genuine fact in the specific circumstances.
  4. If the employee chooses to resign and that decision is made personally and is not forced by the employer.
  5. If the employee is employed on an annual rate that is more than the regulated amount, and as a result are not covered by an award or enterprise agreement. For example, that amount is $148,77 as of July 1, 2019.

Is there a time limit for making a wrongful dismissal application?

There is a time limit in applying for wrongful dismissal or wrongful termination claims. That timeframe is currently 21 days, although this can be reviewed by the Fair Work Commission on a case by case basis in certain circumstances, although it is rare that a case is accepted after this 21-day timeframe.

Are there costs that can be awarded in a wrongful dismissal case?

As with employment law, each claim is different and so there is not a straightforward outcome that can be applied to all cases. There are particular circumstances where costs can be awarded by the Fair Work Commission. This occurs when they are satisfied that the party who started or responded to the said application without reasonable cause, or that the application had no prospects for success.

Do casual employees get wrongful termination rights and benefits?

Unfortunately, casual employees are generally not protected by wrongful dismissal or wrongful termination. However, if a casual employee was employed under a regular basis with a reasonable expectation that this employment would be continuing, there could be grounds to make an eligible claim. In this event, reach out to our McDonald Murholme employment lawyers to explore your options and discuss the circumstances of your casual employment.

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