This benchbook has been arranged to reflect the process users would follow when making an application for unfair dismissal.
Issues that may arise at a certain point during the process will be addressed as they come up. As a result, this benchbook may not deal with these issues in the same order as the Fair Work Act 2009 (the Fair Work Act).
Note: The diagram below sets out unfair dismissal process as it applies in general terms.
Employee/employer relationship ends
Employee makes application to Fair Work Commission
Matter listed for conciliation Parties notified
NO objection from employer
Telephone conciliation conference with Conciliator
Matter resolved Terms of settlement Notice of discontinuance
Objection from employer
Jurisdiction hearing before Member
Matter dismissed (NO jurisdiction)
Matter NOT resolved
Arbitration and/or Jurisdiction hearing before Member
Matter resolved Order made
See Fair Work Act s.385
Under the Fair Work Act a person has been unfairly dismissed, if the Fair Work Commission s satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal:
See Fair Work Act s.381
The objects of the unfair dismissal provisions are:
The procedures and remedies (referred to in the second and third dot points above) and the manner of deciding and working out remedies are intended to ensure that a 'fair go all round' is accorded to the employee and employer concerned.
This section of the Fair Work Act enshrines the principle established in re Loty and Holloway v Australian Workers’ Union.
An employee of a national system employer (called a national system employee) who has been dismissed is protected from unfair dismissal and eligible to make an application for unfair dismissal remedy if:
It is not an unfair dismissal if the dismissal was:
An unfair dismissal application must be lodged with the Commission within 21 days after the dismissal takes effect.
The Commission may only allow a further period for lodgment in exceptional circumstances.