Unfair Dismissal Australia
An unfair dismissal will occur when an employee has been dismissed, and the dismissal is harsh, unjust or unreasonable. If you are employed by small business, as defined by the Fair Work Act 2009 (Cth) (the FWA), you will be unfairly dismissed if your dismissal was not consistent with the Small Business Fair Dismissal Code. If you have been made redundant, your dismissal will be unfair if it was not a case of genuine redundancy.
The unfair dismissal protections in the FWA exist to ensure that a ‘fair go all round’ is given to both employees and employers.
Who can apply?
In order to be protected from unfair dismissal, you must be covered by Australia’s unfair dismissal legislation. To be eligible to make an application, an employee must first have completed their minimum period of employment. This is 6 months, and 12 months for small business employers.
If you satisfy this requirement, one of the following must also apply:
- You earn less than the high income threshold (which is currently $148,700); or
- A modern award covers your employment – find out which award covers your employment here; or
- An enterprise agreement applies to your employment – you can search for your EA here.
If you are a true independent contractor, you will not be protected from unfair dismissal.
If you have been dismissed but do not believe you are protected from unfair dismissal, call Resolution123 to discuss your options. There may be other options available to you including a General Protections Application.
How do I apply?
The first and most important step in making an application for unfair dismissal is to ensure you do so within time. The Fair Work Commission has a very strict time limit that must be complied with. You must lodge your application with the Commission within 21 calendar days after the dismissal takes effect.
The Commission will allow a further period for lodgment in exceptional circumstances, however their permission is required before your application can proceed.
You can make an application by completing a Form F2 from the Commission’s website or using their Online Lodgment Service. Your application is an opportunity to present to the Commission the reasons why your dismissal is unfair.
When drafting this, always keep in mind the considerations the Commission will take into account when determining if your dismissal was harsh, unjust or unreasonable:
- Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
- Whether the person was notified of that reason;
- Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
- Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
- If the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
- The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- Any other matters that the FWC considers relevant.
What happens after I apply?
Once you make your application within the 21 day time limit, you will be contacted by the Commission to make payment of the filing fee – currently $73.20. If you cannot afford this you can apply to have the fee waived. More information can be found here.
Your employer (the Respondent) is then provided with a copy of your F2 Form by the Commission, and is asked by the Commission to provide a response. This is in the form of an Employer’s Response – an F3 Form. The Respondent is required to do this within 7 days of being provided your application, however many employers do not comply with this. If you do not receive a response within that time frame you should contact the Commission’s Registry to alert them.
The Employer’s Response will outline the reasons the Respondent does not believe your dismissal was unfair – it is their “defence” – and provides you with a good idea of what will be discussed in the conciliation, and the strength of their argument.
The Commission will provide you with a notice of listing setting down a date and time for your matter to be conciliated. This is approximately 4 weeks after your application is filed – though this may be more or less depending on the capacity of the Commission.
To prepare for conciliation you should review your application and the employer’s response. It is a good idea to have a short, strong summary of your case prepared to present to the conciliator – you should assume that the conciliator and the Respondent have read through all the material and are aware of the facts of your matter.
The conciliation is conducted over the phone, with the parties conferenced in by the conciliator. The conciliator is an impartial third party is trained to assist the parties to settle their matter. It is not their job to give you legal advice, or to decide the outcome of your matter. After you and the Respondent provide your opening submissions (using the summary you have prepared) the conciliator will break the conciliation into private conferences, where they will move between the parties to try and reach a solution.
If the parties can resolve their dispute at this stage (as most do), the Commission will provide a document called “Terms of Settlement” for each party to sign. This will outline the settlement and the obligations on the parties moving forward. If you do not understand this document, you should seek legal advice before signing it.
If the parties cannot resolve their dispute, the matter will proceed to Arbitration. The Commission will direct the parties to engage in either a hearing or determinative conference. This is a more formal process, where the parties are often represented by lawyers. Through written submissions and evidence, as well as evidence and oral submissions given by the parties, the Commission will make a determination as to whether an unfair dismissal has occurred.
The Commission can order reinstatement (for an employee to get their job back), compensation (capped at 26 weeks’ pay) or non-financial remedies such as a written statement of service.
Proceeding to this step will incur cost, time and stress and you should seriously consider seeking legal advice before proceeding.