Fair Work Commission

Overview

When someone lodges an application for unfair dismissal remedy they are beginning a formal legal process. When the application is lodged, a copy of the application is sent to the employer, and the Fair Work Commission will contact them to ask them to respond to the application.

Where possible, the Commission tries to resolve unfair dismissal applications by agreement.

The key steps in the unfair dismissal application process are:

1. A former employee sends an unfair dismissal application to the Commission, and the Commission sends a copy of the application to the employer.
2. The employer is required to respond to the application and submit any jurisdictional objections they may have to the claim. The employer must send their response to both the employee and to the Commission.
3. A Commission conciliator will try to help the employer and the former employee resolve the matter. The Commission will send a written notice with the date and time of a conciliation conference to the employer and the former employee. The conciliation is usually done by telephone.
4. If the application can't be resolved at conciliation, it will go to a formal hearing or conference where the outcome will be decided by a Member of the Commission.

Making an application

Preparing an application

Making an unfair dismissal application is a legal process – it is not just making a complaint against your employer. You need to take the process seriously and follow the proper procedures.

Start your claim by lodging an application form (Form F2) that is available from the Commission’s website and offices. The application will include:

• contact details for you, any representative and your former employer (if you are unsure of your former employer’s official name this will be on your payslip)
• employment details including the date you started work, the date you were notified of your dismissal and the date you finished work
• reasons given by your employer for your dismissal
• your arguments about why you believe the dismissal was unfair, and
• your signature.

It is important that you answer every question in the form in as much detail as possible. If you believe a question is not relevant to you then you should respond by answering 'not relevant'.

If you don't complete your application fully, your case can be delayed until the problems are fixed. If you do not fix those problems quickly your application may be dismissed, which means the Commission will not deal with it. Use this sample application form (PDF) to see how to complete this important document correctly.

Application fee

To make an application you are required to pay an application fee.

The application fee is adjusted annually on 1 July. Please go to the Lodge an application page for the current amount.

The fee may be refunded if the matter is discontinued before any conference or hearing is held before a Fair Work Commission member.

If paying the fee will cause you financial hardship, you can apply to have the fee waived (which means you do not have to pay). If you wish to apply for a waiver, a completed Fee waiver form should be included with the application (do not send it separately). A copy of this form will not be forwarded to the employer.

Lodging an application

Applications can be lodged by email or fax sent to any Commission office.

If you cannot lodge by any of the above means, an application can be made over the phone on 1300 799 675. However, a telephone application cannot proceed until a complete and signed application is received, along with either payment or a fee waiver application.

See the Lodge an application page for more details, or watch the video on this page How do employees make an unfair dismissal claim? to see how to lodge an application.

Once you have lodged your application, the Commission will send a copy of your completed application form to the employer, who then has 7 days to respond. In that response the employer will explain why they believe your dismissal was fair, and may make any objections to the application. See Responding to an application for more details.

Who handles the application?

Each application goes to a section of the Commission called the Registry, where it is given to a case manager.

The case manager’s role is to prepare each file to allow the Commission’s processes to go ahead – they are not there to help employees or employers manage the application. They can provide information about the process, but they cannot provide any legal advice about how to submit or run an application. This means that they cannot give advice about how to fill out an application or response form, or answer questions about a particular situation like:

• Was I dismissed unfairly?
• Do I have a case?
• Should I lodge an application?
• What should I say in my application?
• Should I lodge an objection?
• What is likely to happen?

You need to get your own professional advice about all of those types of questions. Find out where to get legal advice. In some states there is a scheme of independent duty lawyers who can provide advice on some matters. The Commission’s Unfair Dismissal Team can tell you if this is available in your state.

If you need to call the Registry you can speak to any staff member about your file – you do not need to speak to the case manager named on your paperwork.

Responding to an application

Employers find out about an unfair dismissal claim when they receive a copy of the dismissed employee’s application from the Fair Work Commission. This is often the first time the employer is aware that the employee has made a claim against them.

An employer’s initial response can range from confusion to bewilderment, because you don’t know how this started or what you should do next.

You cannot afford to ignore this matter – it is the start of a formal legal process and won’t just 'go away'. Even if you believe you have done nothing wrong you still have to be involved in the process and present your arguments. If you do not participate a decision may still be made against you.

Why did I get this form?

The Commission does not investigate unfair dismissal claims or start legal action against employers. It can only deal with claims and evidence that are brought before it.

You have received an Unfair dismissal application form because a former employee has applied to the Fair Work Commission. The employee is alleging they were unfairly dismissed by you or your company, and is asking the Commission to deal with their case.

Can my employee make a claim against me?

The Commission can only deal with cases that fall within its jurisdiction. To make a claim your former employee must:

• lodge their application within 21 days of dismissal taking effect, unless the employee applies for an extension or time and it is determined there were exceptional circumstances
• be covered by the national workplace relations system
• be an employee who has been dismissed, and
• meet eligibility criteria, including the minimum employment period.

You can lodge a jurisdictional objection if you believe the dismissed employee does not fall within the Commission’s jurisdiction.

This means that you are 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 is a jurisdiction hearing?

How do I respond to a claim?

Within 7 days of receiving the employee’s application, you must respond to the Commission using the response form (Form F3) that is available from our offices and website. We also have a sample response form that may help you to complete this important document correctly.

In the response form you must include:

• the dates the employee started work, was dismissed and finished work
• reasons for dismissing the employee
• your response to the employee’s arguments about why they think the dismissal was unfair
• any jurisdictional objections you wish to raise, and
• your signature.

You must complete all sections of the response form in as much detail as possible. If you believe a question is not relevant to you then you should respond by answering 'not relevant'. You should also include copies of any relevant documents such as written warnings and letter of dismissal.

You are required to send your response documents to 2 places:

1. the Fair Work Commission, for inclusion in the case file, and
2. directly to the employee using the contact details provided in their application form.

The video on this page How do employers respond to an application? explains how to respond to an employee’s application.

Jurisdictional objections

If the employer has raised a jurisdictional objection and wants it heard before the conciliation it will be listed for a hearing to decide if the case can proceed. If it can’t the employee’s claim will be dismissed.

The video on this page What is a jurisdiction hearing? provides more information on jurisdictional objections.

In some cases the jurisdictional objection and the merits of the unfair dismissal case may both be dealt with in a hearing or conference at the same time. If you are unsure, please contact the Commission for assistance.

Can I have a representative?

At conciliation

You can choose to be represented at the conciliation stage, though it is not necessary. However, each party is allowed to have a representative at a conciliation conference conducted by a Conciliator without seeking permission to appear.

A representative can be a lawyer, an advocate, a union official (for employees) or industry body official (for employers) or even a friend or family member who acts as your support person. If you are using a representative it is important that their details be recorded on your application or response form. If they are not in the room with you they will join the conciliation by telephone.

At a conference or hearing

If your case proceeds to a conference or hearing, 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.

Self-representation

If you decide to represent yourself in proceedings it will be easier for you if you are well prepared.

You may find it helpful to review or complete some of the documents on our What happens at hearings & conferences page to help you prepare.