I was working as an operator and got put off after a week they can not give me a reason why. My brother was working

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Based on the facts that you have raised you may have a claim for unfair dismissal; section 386(1) of the Fair Work Act sets out circumstance when an employee is dismissed.

Claiming unfair dismissal depends on the type of employment, duration, salary, occurrence of dismissal, timing, and whether the employee has sought other remedies already.

Please note There is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance. For example, there is no rule that an employee must receive three written warnings.

However, industrial tribunals over the years have consistently upheld unfair dismissal claims where an employee has not had an opportunity to respond to performance concerns or to improve their performance over a reasonable period of time.

Proceedings under the common law are available to those employees who are, for instance, capped out of unfair dismissal claims and are effectively a claim for breach of contract: for example, where an employee’s contract does not contain an express notice provision and the employee is dismissed without the provision of a reasonable period of notice. The benefit of these types of claims over unfair dismissal actions is they are not subject to the six-month maximum compensation cap. However, unlike the majority of unfair dismissal claims, generally the unsuccessful party can receive a costs order against them.

If the employee has wrongly filed a claim with Fair Work Commission, the employer then could raise a counter claim.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action: defined in s 342, against an employee who has a workplace right: defined in s 341.

An employee who has been dismissed because of a proscribed discriminatory reason under s 772 of the Fair Work Act may make an unlawful termination application to the Fair Work Commission.

An employee cannot make an unfair dismissal claim unless they have completed the qualifying period of employment, which is 6 months continuous service, in the case of an employee of a small business employer (who has less than 15 employees); or 12 months continuous service, for all other employees.

Casual employment does not count towards the minimum qualifying period, unless a casual was employed on a regular and systematic basis and had a reasonable expectation of ongoing work (s 384(2)(a)). This means that, generally, only long-term casual employees are able to bring an unfair dismissal claim.

The following employees can raise a claim where they are on award wage, enterprise agreement, and the income is less that $145,000 per annum indexed each year.

The time limit for lodging an unfair dismissal application is 21 days from the date of the dismissal, or such further period as the FWC allows in “exceptional circumstances”. Applications brought out of time will be ineligible.

Making a claim for unfair dismissal Form 2 needs the used and the application fee being paid.

Form 2: https://www.fwc.gov.au/documents/documents/forms/form_f2.pdf

The claim is then lodged through FWC:

https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/lodge-application/online-lodgment-service

Fair Work may permit a filing of a late application form but it will need to under special circumstances as set out in section 394(3) of the Act.

In mist cases where the delay to lodge the claim is not the fault of the employee, the application will be permitted.

The main point is that you file the application with Fair Work Commission as soon as possible.

Fair Work will try an mediate the situation with there employer and where that fails there will be conciliation conference, where you you can be represented by a lawyer if you need. However if the matter goes to hearing then permission is required to have a lawyer assist you at the proceedings.

Would you like to consider this option.

The claim is then lodged through FWC:

https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/lodge-application/online-lodgment-service

PART 3-2--UNFAIR DISMISSAL Legislation

http://www5.austlii.edu.au/au/legis/cth/num_act/fwa2009114/index.html

Division 1--Introduction

379. Guide to this Part

380. Meanings of employee and employer

381. Object of this Part

Division 2--Protection from unfair dismissal

382. When a person is protected from unfair dismissal

383. Meaning of minimum employment period

384. Period of employment

Division 3--What is an unfair dismissal

385. What is an unfair dismissal

386. Meaning of dismissed

387. Criteria for considering harshness etc.

388. The Small Business Fair Dismissal Code

389. Meaning of genuine redundancy

Division 4--Remedies for unfair dismissal

390. When FWA may order remedy for unfair dismissal

391. Remedy--reinstatement etc.

392. Remedy--compensation

393. Monetary orders may be in instalments

Division 5--Procedural matters

394. Application for unfair dismissal remedy

395. Application fees

396. Initial matters to be considered before merits

397. Matters involving contested facts

398. Conferences

399. Hearings

400. Appeal rights

401. Costs orders against lawyers and paid agents

402. Applications for costs orders

403. Schedule of costs

404. Security for costs

405. Contravening orders under this Part

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