An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and the Fair Work Commission finds that:
A small business is a business that employs fewer than 15 employees.
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:
The laws do not cover:
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:
A small business is a business that employs fewer than 15 employees.
In addition, if the person earns more than $138,900 per year, at least one of the following must apply:
Note: The application must be lodged within 21 days of the dismissal coming into effect.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
A person's dismissal was a case of genuine redundancy if:
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 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.
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.
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:
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.
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.
The form to use to make an unfair dismissal remedy application is Form F2—Application for an unfair dismissal remedy.
Employees are required to pay an application fee of $69.60. 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.
An application can be lodged:
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.
An employer can object to an unfair dismissal application on the basis that:
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.
Where possible, the Commission seeks to resolve unfair dismissal applications by agreement.
The key steps in the unfair dismissal application process are:
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:
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.
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:
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.
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:
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.
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.
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.
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.
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:
Our website also contains a range of information that can help in preparing for a hearing or conference, including: