Dismissal from your job as a Director, Executive or Senior Manager can be a distressing experience
Some people going through disciplinary or dismissal procedures may have to take part in investigations, disciplinary meetings, and /or internal hearings and appeals, and other workers may be leaving by mutual agreement, but require legal support to assist in negotiating the details of their departure arrangements and severance package.
You might find yourself unfairly dismissed from work in circumstances where:
- The real reason for your dismissal was a prohibited reason
- Prohibited reasons include, that you had exercised a workplace right, that you exercised an industrial right or your race; your sex; the fact you were pregnant or had caring responsibilities; your age; an injury, illness or disability; or your membership of a trade union.
- Allegations relied upon to terminate your employment were not true;
- Allegations relied upon to terminate your employment were not serious enough to justify dismissal; or
- Given the seriousness of the allegations against you on the one hand, and your length of service, your age and your employment record on the other, termination of your employment was harsh.
Alternatively, you might find yourself unfairly dismissed from work as a result of improper handling of redundancy by your employer, or because your employer has transferred your business unit to another entity and not fully played by the rules. In all these situations, we skilfully advance our clients’ interests while providing a personal, thorough and cost-effective service.
Our employment lawyers have been involved in many high-value dismissal cases, securing the best possible outcomes for our clients. Get in touch online or call us for help.
How we can help
- We can advise you of the value of your dismissal claim, and help you to reach a good deal.
- We can negotiate employment termination packages on your behalf and arrange for tax advice.
- If you are involved in an employment disciplinary investigation or if you are called to attend an employment disciplinary or dismissal meeting, we can advise you throughout the process.
- If you have been dismissed from your job in unfair circumstances, you may have a claim for unfair dismissal, adverse action or discrimination. We will consider your employer’s reasons for dismissing you and the process that has been followed in order to advise you of your legal rights, how to challenge the dismissal, and what compensation may be available to you, whether through the Fair Work Commission, through a State employment tribunal or court or through an out-of-court settlement.
- In circumstances where the treatment you've experienced from your employer makes it impossible for you to continue in employment, leaving you with no option but to resign. Although not an actual dismissal, a fundamental breach of contract by your employer may amount to what is known as Constructive Dismissal in these circumstances. Constructive dismissal claims are complex and can be risky, so it's important to get expert legal advice to consider the circumstances before leaving your job.
Wrongful dismissal / Breach of contract
Wrongful dismissal is a contractual claim. This arises where you have been dismissed and your employer has failed to fulfil their contractual obligations. For example, if you are not guilty of gross misconduct, but your employer has failed either to allow you to work out your notice or make a payment in lieu of notice (usually to include all benefits due like pension payments, company car benefits etc).
If you have no notice period set out in your contract, you should receive ‘reasonable notice’ which could be three to six months or even twelve months. At the very least, you will be entitled to the minimum statutory notice period.
You are under a duty to do your best to make sure that you find alternative employment (i.e. to ‘mitigate’ your loss).
Often your employer will state in your contract that they have the right to make a payment in lieu of notice on termination rather than putting you on leave or having you work out your notice period. If you receive a payment in lieu of notice in accordance with your contract the Courts will consider that the contract has been terminated lawfully, so that all post-termination restrictions contained within the contract remain in place, including any non-compete covenants or confidentiality restrictions.
Unfair Dismissal / Adverse Action / Discrimination
Depending on your level of remuneration and whether you are covered by an award or enterprise agreement, you may be able to bring an unfair dismissal claim.
Subject to the reasons for the termination, proposed termination or other action taken in relation to your employment, you may also be able to commence an adverse action claim, or make a discrimination complaint.
An important area to resolve may be in respect of outstanding or pending bonuses. Your position will depend on what your contract says. Executives can sometimes even challenge a failure to pay a ‘discretionary’ bonus if the bonus was withheld capriciously, arbitrarily or unreasonably.