Overview of the unfair dismissal laws
What is unfair dismissal?
An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and the Fair Work Commission finds that:
- the employee was dismissed, and
- the dismissal was harsh, unjust or unreasonable, and
- the dismissal was not a case of genuine redundancy, and
- the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.
A small business is a business that employs fewer than 15 employees.
Who is covered by the unfair dismissal laws?
Only employees covered by the national workplace relations system are covered by the unfair dismissal laws. (Other employees may have access to remedies under state legislation). The national workplace relations system covers:
- all employees in Victoria, the Northern Territory or the Australian Capital Territory
- those employed by private enterprise in New South Wales, Queensland, South Australia or Tasmania
- those employed by local government in Tasmania
- those employed by a constitutional corporation in Western Australia (including Pty Ltd companies)—this may include some local governments
- those employed by the Commonwealth or a Commonwealth authority
- a waterside employee, maritime employee or flight crew officer in interstate or overseas trade or commerce.
Who is not covered by the unfair dismissal laws?
The laws do not cover:
- those employed by state government in New South Wales, Queensland, Western Australia, South Australia and Tasmania
- those employed by local government in New South Wales, Queensland and South Australia
- those employed by a non-constitutional corporation in Western Australia (including a sole trader, partnership or Trust)
- employees who resign and were not forced to do so by the conduct of their employer
- those employed under a contract of employment for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season
- trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement
- employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.
Who is eligible to make an application?
To apply for an unfair dismissal remedy an employee must be covered by the national unfair dismissal laws and be eligible to make an application.
An employee is eligible to make an application for unfair dismissal if they have completed the minimum employment period of:
- one year—where the employer employs fewer than 15 employees (a small business employer)
- six months—where the employer employs 15 or more employees.
A small business is a business that employs fewer than 15 employees.
In addition, if the person earns more than $136,700 per year, at least one of the following must apply:
- an award covers the person
- an enterprise agreement applies to the person.
Note: The application must be lodged within 21 days of the dismissal coming into effect.
What is harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
- 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), and
- whether the person was notified of that reason, and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and
- 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 Commission considers relevant.
What is a genuine redundancy?
A person's dismissal was a case of genuine redundancy if:
- the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise, and
- the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
- the employer's enterprise
- the enterprise of an associated entity of the employer.
What is the Small Business Fair Dismissal Code?
The Small Business Fair Dismissal Code provides that:
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to help. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the code if the employee makes a claim for unfair dismissal to the Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
What are the remedies for unfair dismissal?
If the Commission is satisfied an employee was unfairly dismissed then it may order the employee's reinstatement together with continuity of service and lost remuneration, or the payment of compensation to the employee if satisfied that reinstatement is inappropriate.
Who pays my costs?
An employee and employer involved in an unfair dismissal case before the Commission must generally pay their own costs.
The Commission may order an employee or employer to pay some or all of the costs of the other if the unfair dismissal application or response to it:
- was frivolous, vexatious or made without reasonable cause
- had no reasonable prospect of success.
In certain circumstances, the Commission may also make a costs order against a lawyer or paid agent representing a party in an unfair dismissal case.
Applying for an unfair dismissal remedy
How long do I have to make an unfair dismissal remedy application?
An unfair dismissal remedy application must be lodged within 21 days of the dismissal coming into effect. The Commission may accept a late application, but only in exceptional circumstances.
Which application form do I use?
The form to use to make an unfair dismissal remedy application is Form F2—Application for an unfair dismissal remedy.
Is there an application fee?
Employees are required to pay an application fee of $68.60. This fee may be waived on the grounds that its payment would cause serious hardship.
Any application for waiver of the fee should not be lodged separately, but should accompany the application Form F2. The fee may also be refunded if the matter is discontinued prior to any conference or hearing being held before a Commission member.
How do I lodge the application form?
An application can be lodged:
- by email or using our Online lodgment facility (eFiling)
- by telephone or facsimile
- by post
- in person at a Commission office.
You may have a lawyer or paid agent to help you prepare and/or lodge a copy of written documents such as an application or submissions.
Objecting to an unfair dismissal remedy application
How do I object to an unfair dismissal application?
An employer can object to an unfair dismissal application on the basis that:
- the applicant was not unfairly dismissed (see Overview—What is unfair dismissal?)
- the application was lodged with the Commission outside of the prescribed time limits
- the applicant is not covered by the unfair dismissal laws or is not eligible to make an application
- the application is frivolous, vexatious or has no reasonable prospects of success.
Note: An employer who makes an objection that an unfair dismissal remedy application is frivolous, vexatious or has no reasonable prospect of success may be ordered to pay the costs incurred by the employee in dealing with the objection if the objection is made without reasonable grounds.
To object to an unfair dismissal application, complete the Form F3—Employer response to application for an unfair dismissal remedy. The form must be lodged with the Commission and served on the applicant within 7 days of receiving the application.
You may have a lawyer or paid agent to help you prepare and/or lodge a copy of written documents such as an objection or submissions.
- If you need help completing the form, you can contact us.
The unfair dismissal process
Where possible, the Commission seeks to resolve unfair dismissal applications by agreement.
The key steps in the unfair dismissal application process are:
- employee lodges application
- the application is checked to ensure it is complete and valid
- employer is notified of the application
- the Commission conciliates the application to try to help the parties resolve it among themselves
- an unresolved application is determined by the Commission following a conference or hearing.
What is conciliation?
Conciliation is an informal, private and generally confidential process where a Commission conciliator helps employees and employers to resolve an unfair dismissal application by agreement.
The conciliator is independent and does not take sides, but works to bring the parties to an agreed resolution.
The style of each conciliator may vary but, in general, a conciliation will include the following steps:
- the conciliator explains their role and the manner in which the conciliation is to be run
- each side briefly outlines their story including what happened, any relevant facts and what they want
- the conciliator may allow or ask questions
- the circumstances, and any issues arising, are discussed. The conciliator may talk separately to the parties
- the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and sometimes by making recommendations and helping the parties in drafting an agreement in writing.
It is important that prior to the conciliation you review what you want to say at the conciliation about the unfair dismissal remedy application and, if possible, forward to the Commission any documents you want considered at the conciliation.
What happens at a conference or hearing?
If the unfair dismissal application is not withdrawn or does not settle at or before the conciliation, the employer and the employee will each receive written notification from the Commission of any conference or hearing to be held on the application.
Conferences and hearings deal with:
- applications for an extension of time for the lodgment of an unfair dismissal remedy application
- jurisdictional objections to an unfair dismissal remedy application, and
- the merits arbitration of an unfair dismissal remedy application.
A conference is generally conducted in private while a hearing is usually open to the public.
The notification of a conference or hearing will include the time, date and location of the conference or hearing. The notification may also include directions for the lodgment of written material with the Commission by the employee and the employer.
An application for an adjournment of the conference or hearing must be given in writing and provide full reasons for seeking the adjournment. Adjournment applications will only be granted on substantial grounds.
Do I have to be represented by someone?
There is no requirement for you to be represented by another person when you appear in proceedings at the Commission. You will need the permission of the Commission Member dealing with your case if you wish to be represented by a lawyer or paid agent, unless that person is:
- one of your employees or officers (if you are an employer)
- employed by a union or employer organisation, a peak union or peak employer body.
If you decide to represent yourself in proceedings it will be easier for you if you are well prepared. You may consider bringing one or more individuals with you for support. There is generally no objection to you doing so although in a private conference you should be prepared to tell the Commission Member dealing with your case why you would like the presence of such individuals.
What if I need an interpreter?
There is no cost to you if you require an interpreter at a Commission conference or hearing, but you must ask the Commission to provide an interpreter either when lodging your application or before the day of the conference or hearing.
Finding your way to a hearing or conference
Before you attend a conference or hearing at the Commission you should check the hearings and conferences list.
The list identifies all of the cases for a particular day, together with the Commission Members dealing with them, the times of the hearings and conferences and the location details, including floor and room number.
The list is published in capital city newspapers and on our website (on the Hearings & conferences page) each day. Printed copies of the list can also be found at Commission public counters, near the courtrooms or, in some Commission premises, on the building's ground floor. If your hearing or conference is in a regional courthouse you may have to ask for information at the inquiry counter.
Tips about conferences or hearings
- When you are addressing a Commission member refer to them by their title, e.g. Deputy President or Commissioner. Commission staff at the hearing or conference can advise you of the appropriate form of address if you have any doubts.
- Make sure you arrive for the conference or hearing early because proceedings begin on time. Notify Commission staff when you arrive by approaching them in the hearing or conference room.
- If you are delayed for any reason it is important that you contact the Commission as early as possible to ensure a message is sent to the appropriate Commission staff.
- If you have a mobile phone or pager, make sure it is switched off in the conference or hearing room.
- It is customary to bow to the Commission member, by standing and inclining your head, at the beginning of a hearing and if you leave or enter the hearing room while proceedings are underway.
- It is customary to stand when you are addressing the Commission member or questioning a witness.
- Do not speak when a witness is taking an oath or an affirmation.
- Do not interrupt the other party or the Commission member when they are speaking.
- If you are attending a face-to-face conference or hearing bring along enough copies of any documents you want to refer to so that everyone involved has a copy.
- Do not eat or chew while in the conference or hearing.
- There is no dress code, but most people attending the Commission dress neatly.
In general, unfair dismissal case files and discussions in private conferences are confidential. Details will usually only be disclosed to the parties directly involved or their representatives.
The Commission is required to publish its decisions, and we do so by reproducing them on our website.
How can the Commission help?
Commission staff can provide you with information over the telephone or at one of our offices. The Commission cannot provide legal advice or advice on how best to run a case. However, we can provide information on:
- processes in the Commission
- how to apply to the Commission and how to respond to an application that is made against you
- how to fill out forms
- where to find useful documents such as legislation and decisions, and
- other organisations which may be able to assist you.
Our website also contains a range of information that can help in preparing for a hearing or conference, including:
- the Fair Work Act 2009
- the Fair Work Regulations 2009
- the Fair Work Commission Rules 2013
- Commission decisions and orders
- Commission contact details
- links to other useful websites.