The process for applying for unfair dismissal is fairly straight-forward, you can apply by emailing the Fair Work Commission and sending them the required Form F2. What is more complicated is figuring out whether you’re eligible to claim unfair dismissal and understanding the legal jargon you will come across while making your claim. Here, you will find everything you need to know before claiming unfair dismissal.
Checking Your Eligibility
The most important criteria you need to meet to qualify for unfair dismissal is you need to apply for it within 21 days of your dismissal – missing this deadline means you won’t be able to make the claim, even if your dismissal was unquestionably unfair. So, if you are already at this deadline, we recommend contacting the Fair Work Ombudsman as soon as possible to ensure you receive everything you’re entitled to.
If you have ample time to meet your deadline, then check whether you meet all other eligibility requirements:
Have Been Dismissed
You need to have neem dismissed from your workplace before you can apply for unfair dismissal, this means you need to have been:
- Fired with or without warning with behaviour cited as the reason
- Fired due to not performing your role at the required or expected level
- Been made redundant, or been told that your role will be redundant at a future date
- Been forced to resign due to the behaviour of the employer
If you have resigned of your own accord or you are not offered a new contract at the completion of your previous contract or are not offered an ongoing role after working a seasonal role, you have not been dismissed and thus cannot apply for unfair dismissal.
Be Employed for Minimum Period
You need to have worked a minimum number of months at your place of work before you become eligible for unfair dismissal, this minimum time is dependent on the size of the company. If you worked for a medium-to-large business (15 staff or more) then you need to have been employed by the business for at least 6 months. If you worked for a small business (less than 15 staff) then you need to have been employed by the business for at least 12 months.
Be a Protected Employee
To be considered a protected employee, there are a few criteria you need to meet, including:
- You worked for a national system employer (find out what that is here)
- You worked for the minimum employment period (see above)
- You earned less a year than the high-income threshold as defined by the Fair Work Ombudsman
- For casual employees only: you worked on a regular or systemic basis (so your weekly rosters were rarely changed) and were reasonably expecting these regular shifts to continue
If you earned more than the high-income threshold, then you may still be a protected employee if your employment was covered in an award or you had an enterprise agreement.
Have a Reason to Believe You Were Unfairly Dismissed
Sometimes, dismissals are fair even if they’re unwanted – employers are within their rights to terminate an employee’s contract if they have a fair reason. For a dismissal to be unfair, it needs to be:
- Harsh, unjust, or unreasonable OR
- A redundancy that wasn’t a genuine redundancy OR
- If you worked for a small business, your former employer didn’t follow the Small Business Fair Dismissal Code
A dismissal can be considered “harsh” if it was an extreme response to a situation that occurred in the workplace or if the dismissal has a disproportionate impact on your personal or economic situation. A dismissal is “unjust” if you aren’t responsible for the action/s that your employer used as a reason for your dismissal. A dismissal is “unreasonable” if the decision to dismiss you wasn’t made with sufficient evidence.
Understanding the Process
There is a usual process that unfair dismissal cases take, though this process may be amended if required to for the specific case being heard. The usual process follows these steps:
This is the stage where you apply for unfair dismissal. As this is the beginning of a legal process, you will be required to pay a fee in order to lodge your claim. Once you’ve applied, your former workplace will be given the opportunity to respond to your claim – they will have seven days to do this. When the employer responds, they will have the opportunity to explain their version of events and they may object to your application for unfair dismissal.
- Staff Conciliation
This stage is optional and usually happens five weeks after you first apply for unfair dismissal. At this stage, you and your former employer will have the opportunity to meet with each other and a conciliator (usually via phone) to try work out a settlement that all parties agree to. If a settlement can be agreed to, the case will be closed – three quarters of unfair dismissal cases are resolved at this stage in the process.
- Determinative Hearing
If your case could not be settled at the conciliation phase, or you chose not to go to conciliation, your case will be sent to a Commission Member – similar to a judge. The Commission Member will hear all the evidence at a formal hearing or conference (like a court), once everything is heard, the Commission Member will decide the outcome for your case. This phase usually happens months after your initial application for unfair dismissal.
The Commission Member will make their decision after reviewing all the evidence from witnesses and the parties involved in the dismissal. This decision will include details about the case, including the names of the parties involved and some information about the dismissal, and will explain the outcome of the case. All decisions are made within 12 weeks of the hearing and published on the Fair Work website. If the decision is in your favour, it will inform you and your former employer of any compensation you are owed.
Once this process is complete, you and your former employer have the right to appeal the decision is either of you aren’t satisfied with it. If you choose to appeal, you must apply for that appeal within 21 days of the decision.
Le Brun, Here to Assist You
While lawyers are optional throughout the process of making an unfair dismissal claim, you may benefit from having legal counsel representing you. At Le Brun & Associates, our business and employment lawyers are equipped to assist you throughout the process of claiming unfair dismissal. You can book a free 30-minute consultation with us before you file your claim to help you understand what you may be entitled to. We can also assist you through the process to help you navigate the various forms, meetings, and hearings, ensuring that you get an adequate result.