If you've been terminated and you believe that termination is harsh, unjust or unreasonable, you may be eligible for an unfair dismissal claim in the Fair Work Commission. If you are a national system employee* and want to make an unfair dismissal claim, you should be aware of the steps involved before you can get an outcome.
* Broadly speaking, a national system employee is one employed in private enterprise or Commonwealth authorities. An example of a national system employee is someone working for a mining and resources company or a private hospital. An example of a Commonwealth authority is the Australian Tax Office or the Australian Federal Police. State and local government employers are not national system employers
What is the Fair Work Commission?
The Fair Work Commission (the Commission) is the industrial relations tribunal of Australia that deals with industrial awards, setting the minimum wage, approval of enterprise agreements, general protections and unfair dismissal applications.
Lodging the unfair dismissal application in the Fair Work Commission
The first step of an unfair dismissal claim involves completing a Form F2 (unfair dismissal application form) and submitting it to the Commission along with any evidence and the application fee within 21 calendar days from the date of your termination. If you're unsure about eligibility criteria for unfair dismissal, you should speak with an employment lawyer.
You will usually be contacted by the Commission confirming receipt of your application and advising you of the next steps involved. The Commission will organise for a copy of your unfair dismissal application to be 'served' on the Respondent (your employer) named in your complaint.
This isn't the same type of service you may have heard of in other courts or tribunals where you may have to get a process server to do it for you. It's a more informal service where the Commission makes the Respondent aware of your complaint by giving them a copy of your F2 Form and any evidence you attached.
Be aware that any evidence you provide with your unfair dismissal application, such as copies of emails or text messages, will be given to the Respondent as well.
Response from your employer to your unfair dismissal application
The Respondents are invited to respond to your complaint by filling out their employer response form. This is where they get to indicate if there are any jurisdictional objections to your complaint and if they dispute any of the factual or legal arguments in your complaint.
They will usually be given 7 days to respond to your application by the Commission.
Unfair dismissal conciliation
Once the Commission receives the response from your employer, it will organise what is called a 'conciliation'. A conciliation is a form of alternative dispute resolution similar to a mediation.
A conciliation generally is a meeting between yourself and the Respondent (usually a representative of the Respondent will attend, like a manager, boss or HR person). Conciliation provides an opportunity for you to explain the basis of your complaint and why you feel your dismissal was unfair in line with the requirements of section 387 of the Fair Work Act.
You may be asked by the conciliator what remedies you are seeking out of the process if you haven't already indicated that on your F2 form. You can request a combination or any or all of the following outcomes:
- Compensation for lost income – capped at 6 months wages;
- Reinstatement:
- For your termination to be recorded as a resignation:
- Statement of service – indicating your role and responsibilities while employed; and
- A written or verbal apology.
Most conciliations occur over the phone or via Microsoft Teams. You will be notified by the Commission of when your conciliation is and by what method the conciliation will be held.
A conciliation is run by someone called a Conciliator. They are a staff member of the Commission. Their job is to act as an impartial third party, between yourself and the Respondent to agree on an outcome.
Conciliators are trained to understand the legal framework of unfair dismissal, however, they cannot provide analysis, legal advice, or make some kind of legal determination about your unfair dismissal claim. They will not be able to find in your favour or make any kind of finding of fault against your employer. Their role is not to make decisions but rather, to guide you in reaching an agreed resolution with your former employer.
A conciliation is held in private; it is a confidential process that is without prejudice. This means that anything you say in the conciliation is protected and cannot be used against you in a further proceeding (for example, if your matter goes to a hearing), and this protection also covers the Respondent.
The Conciliator may call you before the actual date of the conciliation to run through the process with you. They will also run through the expectations of both parties on the day of the conciliation, such as affording time to both parties to speak and obeying the rules of procedural fairness.
Resolution after conciliation - deed of settlement
If you and the respondent are able to agree on an outcome to your complaint at the conciliation, the matter will be resolved. Both you and the Respondent will agree on settlement terms which will be reflected in a deed of settlement. A deed of settlement is a type of contract.
The Commission may ask if both parties are happy to use the Commission's template deed. If you are represented by a lawyer, they may suggest using their firm's template deed, or the Respondent may request the use of their template deed if they are represented by a lawyer.
You should seek legal advice before signing a deed. Signing a deed of settlement has the usual effect of stopping you from taking any further legal action and it is important you know what the implications are for your individual case. They may also have a confidentiality clause stopping you from discussing the process and what outcomes you received and a mutual non-disparagement clause, meaning neither you nor the Respondent can say bad things about each other going forward.
Most unfair dismissal claims do end up resolving at the conciliation stage. If you are not able to resolve the matter at the conciliation, you will then be asked if you wish to refer the matter to the hearing stage at the Fair Work Commission.
Escalating your unfair dismissal claim to a hearing at the Fair Work Commission
Hearings at the Commission operate differently to a conciliation. They are a more formal legal process that is similar to a court process. Hearings are held in a public forum and will result in a published decision accessible on the Commission's website and legal databases.
Just like conciliations, it is common to have hearings conducted via Microsoft Teams.
Hearings at the Fair Work Commission are overseen by Members. Members are similar to judges in that they have the power to make decisions at a hearing. There are several kinds of members, namely Commissioners, Deputy Presidents, a Vice President and President.
Before the date of your hearing, you may be asked to attend what is called a 'directions hearing' with the Member who has been assigned to oversee your case. Directions hearings are used to discuss the next steps in the hearing and the due dates for certain material, such as an outline of argument and witness statements.
After the directions hearing, you, or your lawyer or another representative (for example, your union) will be given a copy of what 'directions' the member has made with regard to the material required to progress the matter forward.
The Commission will request a written outline of the legal arguments, in addition to a witness statement from you as the Applicant and any other witnesses you may have that are relevant to the complaint. The Respondent will also be asked to provide a response to your submissions and any witness statements they want to rely on. The directions will indicate when these items are due to the Commission.
What happens at a Fair Work Commission hearing?
Fair Work Commission hearings may operate slightly differently depending on whether you are represented by a lawyer or you are representing yourself. You may be asked to provide a short opening statement. You may be asked if you want to add more detail to your witness statement if you submitted one, and the Respondent will be provided with an opportunity to cross-examine you or your witnesses.
You or your lawyer will also be given an opportunity to cross-examine the Respondent's witnesses. You can expect the Member to ask questions of both yourself and the Respondent to ascertain certain information throughout the hearing.
At the end of the hearing, you or your lawyer may be asked to provide any closing statements where you can sum up your complaint.
The Associate will then direct the closure of the hearing. After the closure of the hearing, you must wait until the Member has given their decision in writing. You will usually receive a copy of this decision by email and details on how to appeal if you have been unsuccessful. You should not expect to receive a decision quickly as it takes Members time to consider both sides' arguments and all of the written material.
The outcomes of a Commission hearing are also quite different to conciliations. You won't be able to ask the Commission to make an order regarding a statement of service or for your termination to be recorded as a resignation, as discussed above.
At the conclusion of an unfair dismissal hearing, the Commission may:
- make an order dismissing your application if you haven't satisfied the relevant criteria for unfair dismissal;
- make an order for compensation; and/or
- make an order for reinstatement.
For more information on how to appeal a Fair Work Commission decision, see our earlier blog, "How to appeal a Fair Work Commission decision".
Get help from an employment lawyer
Unfair dismissal claims can be surprisingly complex. Advice and assistance from an experienced employment lawyer is highly recommended. If you have a lawyer throughout the process, most of the steps discussed above will be facilitated through the assistance of your lawyer and will appear seamless as the process is ongoing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
