Have you been unfairly dismissed?
Harsh, unjust or unreasonable
Each year the Fair Work Commission publishes an annual report which discloses useful information for employees in relation to a number of claims including unfair dismissal claims.
A person has been unfairly dismissed if the Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal:
- was harsh, unjust or unreasonable;
- was not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business);
- was not a case of genuine redundancy.
Unfair dismissal application
The process for dealing with an unfair dismissal is usually as follows:
- employee files application, the filing fee is about $70 and the application must be made within 21 days of the dismissal;
- the matter is listed for a telephone conciliation;
- the employer files a response;
- the telephone conciliation is conducted, 90 minutes is allocated to resolve the claim;
- if the matter is not resolved at the conciliation stage it is referred to a Member of the Commission for directions where a timetable for hearing will be set.
Conciliation & settlement
About 3 out of 4 unfair dismissal claims resolve at the conciliation stage.
The Commission publishes data on conciliation outcomes so parties preparing for conferences have as much information as possible on how previous matters have been finalised. This is the rage of outcomes where settlement involved a monetary payment for the 2015-16 year:
|Range||Number||Percent of settlements involving monetary payment|
|$0 to $999||539||8|
|$1,000 to $1,999||922||13|
|$2,000 to $3,999||608||9|
|$4,000 to $5,999||236||3|
|$6,000 to $7,999||1,866||27|
|$8,000 to $9,999||153||2|
|$10,000 to $14,999||57||1|
|$15,000 to $19,999||1,288||19|
|$20,000 to $29,999||19||0|
|$30,000 to $39,999||717||10|
|$40,000 – maximum amount||454||7|
The information in this blog is sourced from the Fair Work Commission Annual Report 2015-16 available at https://www.fwc.gov.au/annual-report-2015-16/part-3-performance/operational-performance/major-application-types/2015-16.