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Procedure for challenging unfair dismissal

Information about the unfair dismissal application and procedure.

This section has brief information about the following unfair dismissal procedures:

How to apply

Applications for unfair dismissal are made to the Fair Work Commission (FWC). The application form (Form 2) and information about the application process are available from their website.

See Fair Work Commission—Unfair dismissal(opens in a new window).

Claims for unfair dismissal may be lodged in person, by fax, email or phone. If an application is made by phone, documents will have to be signed and any fees paid later.

After the claim is lodged FWC will assess the claim to decide:

  • if the application is made in time
  • if the applicant is protected
  • if the dismissal was consistent with the Small Business Fair Dismissal Code
  • whether the dismissal was a genuine redundancy before it considers the merits.

See s. 396—Fair Work Act 2009 (Cth)(opens in a new window)

Cost of applying

The cost of an application is set by the regulations. The cost is $68.60 (current at 29 December 2015). A fee waiver is possible if the fee would cause the applicant to suffer severe financial hardship.

For fee waiver information see 'Lodge an application' in Fair Work Commission—Resolving issues, disputes and dismissals(opens in a new window)

See also Costs for the Hearing

Conciliation conference

Appropriate matters are then listed for a conciliation conference. This is usually done by phone and many matters are resolved at this time. If conciliation does not resolve the matter or a party will not participate, the matter will generally be listed for hearing where the matter may be arbitrated.

Representation by a lawyer or agent

A person can only be represented in a matter before FWC (by a lawyer or paid agent), if FWC agrees. This permission may only be granted if:

  • the matter is complex and FWC believes that the matter will be dealt with more efficiently
  • it would be unfair not to allow a person to be represented, particularly if they are unable to effectively represent themselves
  • the unrepresented person would be at a disadvantage vis a vis the other party without representation (for example, if the employer will be represented by an employer organisation).

Relevant circumstances

Fair Work Commission will also look at the party's circumstances when considering whether to allow representation. They will ask if a party is:

  • from a non-English speaking background
  • has difficulty reading and writing English
  • a small business
  • without any in-house specialist human resources expertise.

See s. 596—Fair Work Act 2009 (Cth)(opens in a new window).

Some kinds of representatives do not need permission to appear

There are no restrictions on lawyers or paid agents preparing written material or appearing if they are:

  • an employee (of the employer in dispute)
  • an officer or employee of an organisation or association of which a person is a member or a bargaining representative (such as a union or employer organsation representative).

Representation during conciliation does not guarantee this support at a later hearing

Some FWC conciliators/mediators who assist with unfair dismissals disputes, do not have power to make orders about 'leave to appear' and so it could be possible for lawyers or paid agents to represent a person at this level and be denied leave at later proceedings.

Fair Work Commission Hearings

Hearings are discretionary

Fair Work Commission is not obligated to hold hearings in an unfair dismissal matter. It has wide discretion about how each matter should proceed. Matters will generally proceed in the most efficient and effective manner. A claim may proceed by conference or by a limited hearing (where discrete issues are heard).

See s. 399—Fair Work Act 2009 (Cth)(opens in a new window).

Costs Orders

Generally a person is responsible for paying their own costs in an unfair dismissal case. However if the employee makes a complaint that is frivolous, vexatious or that has no reasonable prospect of success, Fair Work Commission may order one party to pay some or all of the other party's costs.

See s. 611—Fair Work Act 2009 (Cth)(opens in a new window).

Costs orders against lawyers or agents

Personal cost orders may also be made against lawyers and paid agents who have represented one of the parties if:

  • the lawyer or paid agent encouraged the person to start or continue the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter
  • the lawyer or paid agent caused costs to be incurred by the other party because of an unreasonable act or omission in connection with the conduct or continuation of the matter.

The other party has to ask for an order for personal costs. They have to apply within 14 days of the matter is determined by FWC or is discontinued.

See ss. 401-402—Fair Work Act 2009 (Cth)(opens in a new window).

Appeals

There is no automatic right of appeal in unfair dismissal matters. Appeals on factual errors must involve a significant error of fact. An appeal cannot proceed unless FWC is satisfied it is in the public interest for it to do so.

See s. 400—Fair Work Act 2009 (Cth)(opens in a new window).

More information

Legislation

Fair Work Act 2009 (Cth)

  • Part 3-2—Unfair dismissal
  • ss. 382, 383—when employee is eligible to lodge an unfair dismissal complaint
  • s. 385—explains when dismissal may be unfair
  • s. 386—defines 'dismissed', says employee who resigns can be included if employer's behaviour is unreasonable
  • s. 387 sets out the factors that Fair Work Commission must take into account when they are making a decision about whether a dismissal is unfair
  • ss. 390, 391, 392—remedies
  • s. 396—initial matters to be decided before merits
  • s. 399—hearings
  • s. 400—right to appeal
  • ss. 401-2—order for personal costs against a paid representative
  • s. 611—costs
  • s. 596—representation by legal or paid agents at a hearing

See Fair Work Act 2009 (Cth)(opens in a new window).

Fair work regulations 2009 (Cth)

  • s. 3.07—application fees

See Fair work Regulations 2009 (Cth)(opens in a new window).

Fair Work Commission

See:

Fair Work Ombudsman

See Fair Work Ombudsman—Ending employment(opens in a new window).

Relevant cases

Constructive dismissal

See:

What is included in income calculation

See:

Minimum period of employment

See Ahmed and others v Serco Australia Pty Ltd [2010] FWA 5121 (12 July 2010)

Fair dismissal code

See Garry French v Lufra Investments Pty Ltd t/as Best Western Lufra Hotel - re Termination of employment [2009] FWA 574 (26 October 2009)

Genuine redundancy

See:

Updated