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Unfair dismissal in Australia AND THE FAIRWORK COMMISSION

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*Unfair dismissal IN AUSTRALIA

*Sydney Times acknowledges the use of Australian FAIRWORK Commisson Content

FAIRWORK COMMISSION

Introduction

A person has been dismissed from their employment when:

  • their employment has been terminated at the initiative of the employer, or
  • they have resigned their employment but the resignation was forced by something the employer did.

If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.

To understand the key differences between these applications, and to decide whether one of these applications may be appropriate for you, see the Termination of employment page.

If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws:

Workplace Advice Service

The Commission has launched a Workplace Advice Service, to provide access to free legal assistance to eligible persons, including small business employers seeking employment law advice.

Find out more by visiting our Where to get legal advice page.

What is an unfair dismissal?

If you have been unfairly dismissed or sacked by your employer, or you were forced to resign because of something your employer did, you may be able to make an application to the Fair Work Commission for reinstatement (getting your job back) or compensation. This is called an unfair dismissal claim.

Your dismissal may be considered unfair if:

  • you were dismissed, and
  • your dismissal was harsh, unjust or unreasonable, and
  • your dismissal was not a case of genuine redundancy, and
  • if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.

 

 

 

 

 

It is important to understand that the Commission will not investigate the circumstances of your dismissal. If you make an unfair dismissal claim and a hearing is held you will need to provide evidence to the Commission to show that your dismissal was unfair.

Only a Commission Member can officially decide whether or not your dismissal was unfair.

Who can apply?

The Fair Work Commission is limited by law in the unfair dismissal claims that it can deal with – this is called its ‘jurisdiction’.

To make an application you must:

  • lodge your application within 21 days of dismissal becoming effective
  • be covered by the national workplace relations system
  • be an employee who has been dismissed, and
  • meet eligibility criteria, including the minimum employment period.

An employer can lodge a jurisdictional objection (PDF) if they believe their dismissed employee does not fall within the Commission’s jurisdiction. This means the employer is saying the Commission does not have the power to deal with the claim. If the objection is upheld the unfair dismissal claim will be dismissed. For more details, watch our video What are jurisdiction hearings?.

To find out if you are eligible to apply, take our Unfair dismissal eligibility quiz.

Defining a small business

The Fair Work Act 2009 defines a small business as a business with fewer than 15 employees.

This is calculated on a simple headcount of all employees (including casual staff) who are employed on a regular and systematic basis.

Go to the Unfair dismissals benchbook to find out more about the definition of regular and systematic work.

What it means to me

If you’ve received notice from the Fair Work Commission about an application for unfair dismissal (unfair ending or termination of employment), it means:

  1. Someone believes that you or your company has ended their employment unfairly.
  2. By making an application to the Commission, they have started a legal action against you seeking a remedy for the alleged unfair dismissal. No decision has been made, or result determined yet.
  3. You have the right to respond to the application using the correct form/s, including outlining why you may object to the application. The Commission needs this information to progress (or, if appropriate, close) the application.
  4. Usually, you or your company will then be given a time and date for a conciliation conference – this is a voluntary process where Commission staff try to help both sides resolve the dispute without the need for a more formal hearing before a Commission Member. Staff conciliators do not make decisions about the merits of the application.
  5. If it cannot be resolved at conciliation, the application will be sent to a Commission Member