When You Need a Lawyer for Unfair Dismissal

Under the Fair Work Act 2009, a national system employee who believes they have been unfairly terminated from their employment can approach the Fair Work Commission (FWC) for a remedy – either, reinstatement or compensation.

If you believe you have been unfairly dismissed, or if you have received an Unfair Dismissal Application from a former employee and don’t know how to respond or what to do, you should contact Atkinson Vinden Lawyers for advice.

There is a strict 21-day time limit from the date of the dismissal taking effect to file an Application at the Fair Work Commission.

A person is protected from Unfair Dismissal if:

  • they have completed the minimum employment period (6 months or, for small business employers – 12 months); and
  • they are covered by a modern award or an enterprise agreement or the they earn less than the High-Income Threshold

If you are looking for an employment lawyer in Sydney, or for further information in relation to any employment law needs, please do not hesitate to contact any member of our Employment Law Team.

  • Protection from Unfair Dismissal

    A person has been unfairly dismissed if the FWC is satisfied that a person has been dismissed, and the dismissal was:

    • harsh, unjust or unreasonable; and
    • was not consistent with the Small Business fair Dismissal Code; and
    • was not a case of genuine redundancy.
  • What does "dismissed" mean?

    A person has been dismissed if:

    • their employment has been terminated at the employer’s initiative; or
    • the person has resigned but was forced to do so (ie. constructive dismissal).

    Termination of employment due to a genuine redundancy or because a fixed term or specified task contract or training arrangement has come to an end, is not a “dismissal”.

    A demotion which does not involve a significant reduction in pay or duties, is also, not a dismissal.

  • Genuine redundancy and demotions

    Implementing redundancies following a restructure of a business can be difficult. In some circumstances employees may be able to be deployed elsewhere in the business, but sometimes termination of employment on the grounds of redundancy is the only option available.

    A person’s dismissal will be considered a genuine redundancy if the job is no longer required to be performed by anyone, and if the employer has complied with any consultation requirements in a modern award or enterprise agreement.

    A dismissal will not be considered a genuine redundancy if it would have been reasonable in the circumstances for the person to be redeployed within the business or an associated entity.

    Employers can find themselves open to an Unfair Dismissal claim even where a genuine restructure has occurred but where they have failed to consult with the relevant employee or employees as required under a modern award or enterprise agreement.

  • Harsh, unjust or unreasonable?

    The Fair Work Act sets out the relevant criteria which the FWC must take into account when considering whether a dismissal was harsh, unjust or unreasonable, such as:

    • whether there was valid reason for the dismissal, and whether the person was notified of that reason and given an opportunity to respond;
    • whether a person was refused a support person during discussions about the dismissal;
    • whether prior warnings had been issued if the dismissal related to work performance; and
    • the size of the business and whether there was any specialist human resource personnel advising the business.

    The FWC can also take into consideration any other matters it considers relevant (such as the age of the employee or length of service).

    Even if the FWC finds there was valid reason for a dismissal, it may decide that a dismissal was harsh and therefore unfair because the outcome (termination of employment) was disproportionate to the seriousness of the misconduct. The FWC may also decide that a dismissal was unreasonable or unjust because of a lack of evidence to support a decision to dismiss, or because the employee was terminated for poor work performance but did not receive prior warnings.

  • What is the Process if an Employee Wants to Bring a Claim?

    A claim is commenced by filing an Unfair Dismissal Application at the Fair Work Commission. An employee may also decide to attach copies of documents such as termination or warning letters and emails to support  their claim – although if the matter proceeds to a hearing, evidence in the form of witness statements will need to be filed and prepared at a later date.  Once an application has been lodged, the Fair Work Commission will forward a copy to the employer who has 7 days to respond to the allegations by filing an Employer Response. Atkinson Vinden Lawyers are experienced in assisting employees and businesses with drafting these documents and preparing and presenting cases before the Commission. Our lawyers will be able to present your case effectively and clearly using the language the Fair Work Commission will best understand.

    Within a few weeks of the claim being filed, the Fair Work Commission will hold a conciliation conference (usually by telephone) to assist the parties to resolve the matter without a contested hearing.  Most cases resolve during the conciliation process with very few cases proceeding to a contested hearing. Sometimes resolution can include an apology, a written reference to help the employee find a new job, or payment of compensation.

    If a case is not resolved through the conciliation process, then each party will have to prepare witness statements, and then attend a hearing or a determinative conference where a Fair Work Commissioner will make a binding decision. The reasons for the decision are published. Most hearings or determinative conferences take about one day unless there are very complicated issues to deal with and lots of witnesses.

    What Orders can the Fair Work Commission Make?

    The Fair Work Commission has the power to order that an employee be reinstated, and in some cases, paid back pay – however the most common remedy ordered is for the payment of compensation.  Compensation is capped at the lesser of 26 weeks’ pay or half the High-Income Threshold.

  • How Should an Employer Respond to an Unfair Dismissal Application?

    The first thing an employer should do is consider whether any of the threshold criteria for an Unfair Dismissal Application has been met. If not, the employer may have a basis to have the claim dismissed, and in some circumstances, dismissed early before a hearing on the basis of a jurisdictional objection. Things to consider when preparing a Response include:

    • Was the person an employee or a contractor (or a company officer)?
    • Was the employee dismissed or did the employment end as a result of a fixed term contract or specified task contract or training arrangement concluding?
    • Was the dismissal a genuine redundancy?
    • Was the employee a casual not regularly and systematically engaged and without a reasonable expectation of continuing employment?
    • Was the application lodged more than 21 days after the dismissal took effect?
    • Did the employee earn more than the High-Income Threshold? This may include any non-discretionary bonuses and, in some cases, non-monetary benefits such as a car allowance or fringe benefit.
    • Was the employee a national system employee and covered by a modern award or enterprise agreement?
    • Was the employee employed for the minimum period? Was the dismissal consistent with the Small Business Fair Dismissal Code?

    The above list is not exhaustive, and we recommend you seek legal advice when responding to an Unfair Dismissal Application as there may be legal arguments that are not apparent on initial assessment of an Unfair Dismissal Application.

    Where a jurisdictional objection is identified, employers can either agree to participate in the Conciliation to try to resolve the case anyway or attend a Jurisdictional Hearing to attempt to have the matter dismissed.

    In most cases, it is in the interests of the employer to at least try to resolve and settle an Unfair Dismissal claim, otherwise much  time and resources may have to be dedicated to defending a claim – rather than focusing on running a business

  • What is a Conciliation Conference?

    An Unfair Dismissal Conciliation is a semi-informal negotiation that takes place between the employer (and their legal representative), the employee (and their legal representative) and a Fair Work Commissioner or Conciliator.

    The Conciliator’s role is to facilitate a constructive discussion between the parties to resolve the matter without a formal hearing. Both parties are afforded an opportunity to present their case and then negotiate a settlement.

    The vast majority of Unfair Dismissal claims settle at Conciliation.

  • What is a Jurisdictional Hearing?

    A jurisdictional hearing allows an employer to legally challenge the ability of the FWC to deal with an Unfair Dismissal Application. Unlike at Conciliation, the decision-making power rests with the Commissioner – and may be dealt with on the basis of written submissions or at a separate hearing. Employers need to make commercially considered decisions and so attending a Conciliation despite the availability of a jurisdictional objection may be a more cost effective avenue to resolving a dispute – particularly if the FWC requires further information, evidence and written submissions in order to deal with a jurisdictional objection .

  • What are the rules about legal costs in unfair dismissal?

    Unfair Dismissal in the FWC  is generally a no costs jurisdiction, and so, both parties will generally have to pay their own legal costs.

    In very limited circumstances, it is possible for the Fair Work Commission to make a costs order against a party. We recommend you seek legal advice on how this may apply to you.

If you would like to know more about unfair dismissal processes, please email us, or call our employment law team on (02) 9411 4466.

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Protecting your reputation starts with simplifying the complex. This handy checklist should quickly point you in the right direction and help you understand whether you have a case, and where to start to secure the best possible outcome.