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Navigating an Unfair Dismissal Claim with the Fair Work Commission

If you believe you have been unfairly dismissed from your place of work, there are a few basic steps you will need to take before you decide to make an application.


When your employment ends, you may be eligible to apply for one of the three (3) options in the Fair Work Act (Cth) 2009:

  1. Unfair dismissal

  2. General protections dismissal

  3. Unlawful termination

You can only apply for one option.


Below, we will be applying the first of these three options.


As a qualified and experienced Lawyer, Therapist, Mediator and Conciliator, I have assisted many with their workplace conflicts and unfair dismissal claims with the Fair Work Commission for the positive outcome of compensation.

21 DAYS

The first thing you need to note, is that your application Neds to be submitted within 21 days of termination, with your termination letter included with your application.


INCOME THRESHOLD

Secondly, the wages threshold for this jurisdiction is $162,000.


If you earn over this amount, your application may not be accepted.


If your earnings are more than $162,000 per year, at least one of the following must apply:

  • the employee is covered by an award, or

  • the employee is covered by an enterprise agreement.

Section 123 of the Fair Work Act 2009 (Cth) deals with employees not covered.


Section 121 of the Fair Work Act 2009 (Cth) deals with exclusions from obligation to pay redundancy pay.


Section 23 of the Fair Work Act 2009 (Cth) deals with the meaning of small business employer.


MINIMUM EMPLOYMENT PERIOD

An employee is eligible to make an application for unfair dismissal remedy if they have completed the minimum employment period of:

  • 1 year – where the employer employs fewer than 15 employees (a small business employer), or

  • 6 months – where the employer employs 15 or more employees.

Employees need to be employed for at least 6 months before they can apply for unfair dismissal.


Employees working for a small business need to be employed for at least 12 months before they can apply.


If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.

You can use the Commission’s eligibility quiz to see if you can apply for unfair dismissal.


COMPENSATION CAP

Thirdly, you can either claim for reinstatement or compensation.


If you are wanting to claim compensation, you need to qualify your exact loss for the purpose of claiming the particular compensation amount.


The Tribunal is a loss jurisdiction, and is capped at approximately $76,800 for all claims.


An unfair dismissal claim can only garner maximum compensation of 26 weeks worth of wages. However, this amount is capped at half of the high-income threshold at the time of the dismissal. [This amount is: $76,800 for a dismissal that occurred on or after 1 July 2020 and before 1 July 2021]


YOUR CHECKLIST BEFORE YOU PROCEED:

Lodgement time limit: You are proposing to make your application within 21 days of termination. [An exemption application can be made if you are outside of the 21 days, but these are rarely approved, unless exceptional circumstances are as severe as hospitalisation or accidents.]


Eligibility: You are a National System Employee.

You have worked for at least 6 months and you meet the income threshold.


High Income Threshold: $162,000 [This figure applies from 1 July 2022. For a dismissal which took effect between 1 July 2021 and 30 June 2022 the high income threshold was $158,500.]


Your Compensation Claim: 6 months wages up to total of $81,000

[This figure applies from 1 July 2022. The compensation cap is expressed as half the high income threshold

at section 392(5) of the Fair Work Act.]


Application Fees: You are required to pay an application fee of: $77.80

[this can be waived in circumstances of serious financial hardship]


Ok, so if you are eligible thus far, let's explore how you should proceed ...


WHAT IS UNFAIR DISMISSAL?

Section 394 of the Fair Work Act 2009 (Cth) deals with the requirements for applications for unfair dismissal remedies, and covers:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.


Examples of ‘Dismissal’ ‘Dismissal’ means the employer telling the employee they no longer have a job. For example, the employer may:

  • fire an employee with or without warning for their behaviour

  • fire an employee because they are not performing their job to the level required

  • tell the employee their position is redundant now or on a future date.

In some cases, if the employer's behaviour forces an employee to resign, that might also be a dismissal.


What is not Dismissal? When an employee chooses to resign, this is not dismissal. Also, an employer is not dismissing an employee just because they do not offer a new contract when:

  • the old contract ends

  • the employee has completed the specified task they were employed to complete

  • the employee was only employed for seasonal work and the season ends.


What makes a Dismissal 'Unfair' A dismissal is not always unfair. In some situations, it is fair to end an employee's employment.

When an employer dismisses an employee, the law says that they:

  • should not dismiss an employee if it is harsh, unjust or unreasonable

  • should not make an employee redundant if it is not a genuine redundancy

  • should follow the Small Business Fair Dismissal Code (if they are a small business).

The legal definition is in section 385 of the Fair Work Act 2009. Examples of ‘harsh’, ‘unjust’ and ‘unreasonable’ dismissal A dismissal may be unfair if it is one, 2 or all 3 of ‘harsh, ‘unjust’ or ‘unreasonable’. This is explained in section 387 of the Fair Work Act.

Examples of ‘Harsh’ Dismissal

  • the dismissal is an extreme response to the situation

  • the dismissal has a very big ('disproportionate') impact on the employee’s economic and personal situation.


Example of ‘Unjust’ Dismissal

  • the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them.


Example of ‘Unreasonable’ Dismissal

  • the evidence does not support the decision to dismiss the employee.


WHAT CONSTITUTES AN UNFAIR DISMISSAL?

A dismissal which breaches the general protections provisions could also be unfair. If eligible for either application the person would have to consider which option will deliver the best possible outcome.


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

  • where the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.


A NATIONAL SYSTEMS EMPLOYEE

The law protects employees who:

  • work for a national system employer AND

  • work for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business) AND

  • earn less than the high-income threshold AND

  • (casual employees only) work on a regular and systematic basis before dismissal and have a good reason to believe this would continue.

The law also protects employees who earn more than the high-income threshold if:

  • an award covers their employment OR

  • an enterprise agreement applies to their employment.

Who is a national system employer? Most, but not all, employers in Australia are national system employers. This means that most workers are national system employees. The full definition is in section 14 of the Fair Work Act 2009.

For further information, contact the Fair Work Commission


A decision about one case does not mean a similar case will have the same result.


Whether you are an employer or employee, for further assistance, contact Andrea Consults



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