Unfair Dismissal Claims

Unfair Dismissal Claims

National system employees are protected from unfair dismissal under the provisions of the Fair Work Act 2009 (Cth). The Fair Work Commission (previously known as Fair Work Australia) is an independent body with power to carry out a range of functions relating to among other things disputes around termination of employment. In this article I will focus on unfair dismissal disputes.

What is Unfair Dismissal?

Unfair Dismissal occurs when an employee is dismissed or was forced to resign (“Constructive dismissal) and upon his application to Fair Work Commission (“FWC”), the FWC finds that dismissal was harsh, unjust or unreasonable, and the dismissal was not a case of genuine redundancy.

The Commission considers a range of factors when considering whether the dismissal was ‘harsh, unjust or unreasonable’.

These factors include the following: 

• Was there a valid reason for the dismissal relating to the employee’s conduct or capacity
• Was the employee notified of the reason and given an opportunity to respond
• Did the employer refuse to allow the employee to have a support person present at any discussions relating to dismissal
• if the dismissal relates to unsatisfactory performance, whether the employee was warned about it before the dismissal
• the impact of the size of the employer’s enterprise on the dismissal process, including the absence of dedicated human resource management specialists or expertise
• any other factors the Fair Work Commission considers relevant.

To be eligible to apply unfair dismissal remedy an employee must:

• have been employed by the employer for at least 6 months, or 12 months if the
• employer employs fewer than 15 employees, and

at the time of dismissal, the employee must be

• covered by an award; or
• covered by an enterprise agreement or an agreement-based transitional instrument,
  or
• be earning less than $123 300 a year.

Timeframe and Fee for application

An application must be made to the Commission within 21 days after a dismissal takes effect. This time frame may be extended provided there was a valid reason for delay. Currently there is an application fee of $64.20. This fee may be waived on the grounds of serious hardship and application for fee waiver is required to be submitted along with the application for unfair dismissal remedy.

What happens after the application?

After an application is filed, the Commission will arrange a conciliation/mediation conference which is often held by telephone. The Commission tries to resolve the matter by encouraging a mutual agreement. In the event there is no agreement reached, the Commission will set a date for a hearing at which both the employer and the employee will be required to attend and provide evidence.

If the Commission finds that the dismissal was unfair, the employer can be ordered to either:

• Reinstate the employee, or
• Provide compensation. The maximum that can be awarded in unfair dismissal cases is a cash equivalent of up to 26 weeks pay.

Navjot Singh is an employed solicitor of Teddington Legal based in Surry Hills.

This is information only article and you should seek professional legal advice regarding your circumstances. Navjot provides first free consultation and can be contacted on 0412 718 714.

Liability limited by a scheme approved under Professional Standards Legislation