This article was inspired by someone that I knew that was unfairly dismissed. I thought it would be a good idea to share amongst other educators in the childcare sector, how to take action, the processed involved, dismissal during probation and what to expect. All things that are mentioned were correct at the time it occurred, so I suggest to just take this as a guideline only and not a how to step by step document.
How To Take Action Against Unfair Dismissal
If you had been unfairly dismissed, take a moment and reflect- was it really unfair? Were there no signs that this was coming? Do you feel it’s because of discrimination, because you had a doctor’s appointment or had to take time to look after your child?
There are laws that protect workers from being dismissed unfairly by your employer. Although you need to be proactive, you have 21 days from your termination date to lodge a complaint to the FWA (Fair Work Australia).
Generally dodgy employers will terminate you on a Friday, so you will lose 2 days, the 21 days include weekends as well. If you are told you have up to a year to make a claim, then make sure you get that in writing, as I’ve heard of cases a person would be told they have a year and later find out they only had 21 days. There are different avenues in making a complaint and based on which way you go through the time frame differs.
The Process Involved
Document everything, conversations you have so you can refer to them later. It is best to jot down things that happened at work, at your termination meeting so you can give all the information to the intake officer who is the one that will collate your information and pass it to the solicitor who will then help you complete the form.
Your first step is to get advice, generally you would call Fair Trade Australia, and they will then suggest for you to talk to someone in an organisation called "Law Access". They will take your details down and get a representative at a legal centre that looks after your suburb to contact you. You can check out which legal service that looks after your area by putting your postcode in this site: www.naclc.org.au
The process is a bit time consuming and frustrating, but in all honestly get it started ASAP. You don’t have much time. In this time, definitely job search!
Getting Dismissed During Probation
In regards to the probation, employers can have however long they want in probation period but they should advise you of what it is in writing. According to the unfair dismissal rule you need to be employed somewhere for 6 months in a workplace with 15+ people or 12 months for 15 and less people. So if you have been terminated after 3 months after being employed there’s no solid ground- but there may be loop holes. I’m not a solicitor but this is what I’ve read.
What To Expect
Be aware, you may be waiting 2-3 days on call backs from the legal centre, nothing can be done on the spot so you need to be patient, in saying that, don’t give up. If they don’t call you back- you call them! You need to be front footed and get on top of getting that complaint made up.
When I refer to the complaint, it is a form that you need to complete from FWA (Fair Work Australia) - this is best done by a solicitor. There are free services that can assist you (If there available). This site has a listing of non for profit legal centres: www.naclc.org.au
You will need to provide documents to this law centre so they can go over it such as: employee contract, enterprise agreement, code of conduct book- whatever you have, may be useful.
Once they complete the form, they will send it to you to read and finalise. You then need to lodge it to the FWA office, in person or online. FWA will issue it to your previous employer and they then have seven days to respond. They will then send you a response document from your previous employer stating why they terminated you and a response to your complaint.
The next step is meeting at a conference with a FWA representative - this can be in a small court room, office or anywhere that FWA decides on. At this point you may be lucky and the legal centre has assisted you in getting legal representation.
Generally this meeting / conference are off the record, so whatever is said stays there and it doesn’t go to court, even if you wanted to take it there.
You may be wondering who will be at this conference. There will be one side (Plaintiff) which is your party that consists of: yourself, lawyer, friend/family member or whoever. The other side (Defendant) would be your employer, lawyer, possibly member of head office and member of committee board. The FWA representative will speak to the lawyers directly and not to clients (this is what I’ve heard) I guess if you are representing yourself then that’s different.
The job of the FWA representative is to find a common ground. They will persuade both parties that the claim should end on that day. This is with a settlement that has been previously added on your complaint form, could be returning to your job, or being paid out.
The negotiating can take up to 2 hours (varies). If you can come to an agreement, then the case will be closed and cannot go to court. You will need to sign a deed of release that says you will not take it further at another time. Also you cannot tell 3rd parties about what happened etc. This includes the media.
If you are not happy with the settlement, you then have the choice to take it to court. If your lawyers are doing it pro bono, then you may need to think about it a little bit more as they may not get the approval to represent you in court. They will definitely assist you with some names of firms that can help you, so you’re not completely on your own.
In conclusion, this event is quiet a frustrating, time consuming, and emotional process. Make sure you relax, breathe and write things down. Worst thing is to develop depression over this. My suggestion to you, is to immediately job search, don’t rely on compensation - as you may not get what you want which will result in a more negative way. Take all this as a learning experience, don’t get depressed or be in doubt of a future in children services. Surely you will get back onto your feet and be working as hard as ever. You may find a better role; all things are possible so remember it’s more important in how you respond rather than how you react.
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