The Fair Work Act defines an unfair dismissal as a dismissal that was “harsh, unjust or unreasonable”. The Fair Work Commission is responsible for determining whether a dismissal was unfair and does so under the guidance of federal legislation. Some of the things that the Commission will take into account include whether:
- there was a valid reason for the dismissal
- your employer over reacted in dismissing you
- you were notified of the reason for the dismissal
- you were able to respond to that reason
- warnings were issued about unsatisfactory performance prior to dismissal
The Commission will consider these matters together and weigh up whether there has been a “fair go all round”.
Can I Make an Unfair Dismissal Claim?
There is a strict 21 day time limit for making an unfair dismissal claim. If there are exceptional circumstances for the delay then the Commission may allow an extension. To be eligible to make an unfair dismissal claim you must:
- have been dismissed, and
- completed the minimum period of employment, and
- earned less than the high income threshold or covered by an industrial agreement.
If you can not satisfy all three of these requirements then you are not eligible to make a claim.
What is the Process for Unfair Dismissal Claims ?
After receiving your application the Fair Work Commission will convene a conciliation conference between you and your former employer. A conciliator experienced in workplace relations and unfair dismissal laws will facilitate the conciliation. The purpose of the conciliation is to bring the parties together to try and resolve the dispute, and avoid a formal hearing.
If you reach a mutual agreement to resolve the unfair dismissal claim you will be required to sign and exchange a settlement agreement or deed of release with your former employer. This document is often referred to as “terms of settlement” and should set out the terms on which you have agreed to settle your claim. Once you have received everything you have agreed to, you should file a notice of discontinuance to formally close your application.
If a settlement is not reached, you may elect to withdraw your application, or proceed to a formal hearing at a later date before a Member of the Commission. Members have a range of powers to decide certain issues and make formal decisions. Prior to the hearing you will be directed to file and serve witness statements and formal submissions about your case. The Commission Member will make a binding determination about your case and provide you with a written copy of their decision.
What are the Possible Outcomes ?
If the Fair Work Commission determines that your dismissal was unfair, they may order reinstatement or financial compensation. If the Commission orders reinstatement, you will be appointed to the position you were in immediately prior to your dismissal or to another similar position. In addition, the Commission may make orders to maintain and preserve your period of continuous employment.
If the Commission does not consider reinstatement to be appropriate, then they may order your employer to financially compensate you. The maximum compensation is 6 months pay. However, the Commission can not order compensation for shock, distress or humiliation associated with your dismissal. Similarly, any form of misconduct that contributed to the dismissal will result in a reduction to the compensation amount ordered.