Guide

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Unfair dismissal
1. Overview of the unfair dismissal laws
What is unfair di smissal?
An unfair dismissal occurs where an employee makes an unfair
dismissal remedy application and the Fair Work Commission
(the 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
the dismissal was not consistent with the Small Business Fair
Dismissal Code, where the employee was employed by a
small business.
A small business is a business that employs fewer than 15 employees.
Who can make an unfai r dismissal remedy application?
To make an unfair dismissal remedy application an employee must be covered by the national
unfair dismissal laws and eligible to make an application.
If you were dismissed on or before 31 December 2012, your application must be lodged within 14
days after the dismissal took effect.
If you were dismissed on or after 1 January 2013, your application must be lodged within 21 days
after the dismissal took effect.

Who is covered by the unfair dismissal laws?
Only employees covered by the national workplace relations system are covered by the unfair
dismissal laws. (Other employees may have access to remedies under state legislation). The
national workplace relations system covers:
all employees in Victoria, the Northern Territory or the Australian Capital Territory
those employed by private enterprise in New South Wales, Queensland, South Australia or
Tasmania
those employed by local government in Tasmania
those employed by a constitutional corporation in Western Australia (including Pty Ltd
companies) this may include some local governments
those employed by the Commonwealth or a Commonwealth authority
Inside
Overview of the unfair
dismissal laws.....................1
Making an unfair
dismissal remedy
application..........................5
Objecting to an unfair
dismissal remedy
application..........................6
The unfair dismissal
process...............................6

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waterside employees, maritime employees or flight crew officers in interstate or overseas
trade or commerce.
Who is not covered by the unfair di smissal l aws?
The laws do not cover:
those employed by a state government in New South Wales, Queensland, Western
Australia, South Australia and Tasmania
those employed by local government in New South Wales, Queensland and South Australia
those employed by a non-constitutional corporation in Western Australia (including a sole
trader, partnership or trust)
contractors
employees who resign but were not forced to do so by the conduct of their employer
those employed under a contract of employment for a specified period of time, a specified
task, or the duration of a specified season who are dismissed at the end of the period,
task or season
trainees whose employment was for a specified period of time and who are dismissed at the
end of the training arrangement
employees who have been demoted but have had no significant reduction in their
remuneration or duties and who remain employed by the employer who demoted them.
Who is eligible to make an application?
An employee is eligible to make an application for unfair dismissal if they have completed the
minimum employment period of:
one yearwhere the employer is a small business
six monthswhere the employer is not a small business.
A small business is a business that employs fewer than 15 employees.
In addition, if the person earns more than $129,300 per year, at least one of the following must
apply:
an award covers the person
an enterprise agreement applies to the person.


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What is harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work
Commission must take into account:
whether there was a valid reason for the dismissal related to the persons capacity or
conduct (including its effect on the safety and welfare of other employees)
whether the person was notified of that reason
whether the person was given an opportunity to respond to any reason related to their
capacity or conduct
any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussions relating to dismissal
if the dismissal related to unsatisfactory performance by the person, whether the person had
been warned about that unsatisfactory performance before the dismissal
the degree to which the size of the employers enterprise would be likely to impact on the
procedures followed in effecting the dismissal
the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in
effecting the dismissal, and
any other matters that the Commission considers relevant.
What is a genuine redundancy?
A persons dismissal was a case of genuine redundancy if:
the persons employer no longer required the persons job to be performed by anyone
because of changes in the operational requirements of the employers enterprise, and
the employer has complied with any obligation in a modern award or enterprise agreement
that applied to the employment to consult about the redundancy.
A persons dismissal was not a case of genuine redundancy if it would have been reasonable in
all the circumstances for the person to be redeployed within:
the employers enterprise
the enterprise of an associated entity of the employer.
What is the Small Business Fai r Di smissal Code?
The Small Business Fair Dismissal Code provides that:
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer
believes on reasonable grounds that the employees conduct is sufficiently serious to justify
immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of
occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient,
though not essential, that an allegation of theft, fraud or violence be reported to the police. Of
course, the employer must have reasonable grounds for making the report.

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Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is
at risk of being dismissed. The reason must be a valid reason based on the employees conduct
or capacity to do the job.
The employee must be warned verbally or, preferably, in writing that he or she risks being
dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the
warning and give the employee a reasonable chance to rectify the problem, having regard to the
employees response. Rectifying the problem might involve the employer providing additional
training and ensuring the employee knows the employers job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee
can have another person present to assist. However, the other person cannot be a lawyer
acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the code if
the employee makes a claim for unfair dismissal to the Fair Work Commission, including
evidence that a warning has been given (except in cases of summary dismissal). Evidence may
include a completed checklist, copies of written warning(s), a statement of termination or signed
witness statements.
What are the remedies for unfair di smissal?
If the Commission is satisfied an employee was unfairly dismissed then it may order the
employees reinstatement together with continuity of service and lost remuneration, or the
payment of compensation to the employee if satisfied that reinstatement is inappropriate.
Who pays my costs?
An employee and employer involved in an unfair dismissal case before the Commission must
generally meet their own costs.
The Commission may order an employee or employer to bear some or all of the costs of the
other if the unfair dismissal application or response to it:
was frivolous, vexatious or made without reasonable cause
had no reasonable prospect of success.
In certain circumstances, the Commission may also make a costs order against a lawyer or paid
agent representing a party in an unfair dismissal case.


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2. Making an unfair dismissal remedy application
How long do I have to make an unfai r dismissal remedy appli cation?
If you were dismissed on or before 31 December 2012, your application must be lodged within 14
days after the dismissal took effect.
If you were dismissed on or after 1 January 2013, your application must be lodged within 21 days
after the dismissal took effect.
The Fair Work Commission may extend the time period only if a Commission member decides
after a formal conference or hearing that there were exceptional circumstances for not lodging
the application on time.
Which application form do I use?
The form to use to make an unfair dismissal remedy application is Form F2Application for an
unfair dismissal remedy.
Copies of the form are available:
from the Fair Work Commission website www.fwc.gov.auplease visit the Forms page
by calling the Commission on 1300 799 675
from the Commissions public counters in each capital city.
Is there an appli cation fee?
Employees are required to pay an application fee of $65.50. This fee may be waived on the
grounds that its payment would cause serious hardship.
Any application for waiver of the fee should not be lodged separately, but should accompany
the application Form F2. The fee may also be refunded if the matter is discontinued prior to any
conference or hearing being held before a Commission member.
If you want to get a copy of the application for waiver of the fee, please visit the Forms page on
the Fair Work Commission website www.fwc.gov.au.
How do I submit the application form?
An application can be lodged:
by email or eFiling (electronic lodgment through the website www.fwc.gov.au)
by phone or fax
by post
in person at a Fair Work Commission office.
You may have the assistance of a lawyer or paid agent to prepare and/or lodge a copy of
written documents such as an application or submissions.


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3. Objecting to an unfair dismissal remedy application
How do I object to an unfair di smissal appl ication?
An employer can object to an unfair dismissal application on the basis that:
the applicant was not unfairly dismissed (see 1. OverviewWhat is unfair dismissal?)
the application was lodged with the Commission outside of the prescribed time limits
the applicant is not covered by the unfair dismissal laws or is not eligible to make an
application
the application is frivolous, vexatious or has no reasonable prospect of success.
Note: An employer who makes an objection that an unfair dismissal remedy application is
frivolous, vexatious or has no reasonable prospect of success may be ordered to pay the costs
incurred by the employee in dealing with the objection if the objection is made without
reasonable grounds.
To object to an unfair dismissal application, complete Form F3Employer response to
application for an unfair dismissal remedy. The form must be lodged with the Commission and
served on the applicant within 7 days of receiving the application.
You may have the assistance of a lawyer or paid agent to prepare and/or lodge a copy of
written documents such as an objection or submissions. Also, If you need help to complete the
form, call the Commission on 1300 799 675.
4. The unfair dismissal process
Key steps
Where possible, the Commission seeks to resolve unfair dismissal remedy applications by
agreement.
The key steps in the unfair dismissal application process are:
1. Employee lodges application.
2. The application is checked to ensure it is complete and valid.
3. Employer is notified of the application.
4. The Commission conciliates the application to try to have the parties resolve it amongst
themselves.
5. An unresolved application is determined by the Commission following a conference or
hearing.
What is concili ation?
Conciliation is an informal, private and generally confidential process where a Fair Work
Commission conciliator assists employees and employers to resolve an unfair dismissal remedy
application by agreement.
The conciliator is independent and does not take sides, but works to bring the parties to an
agreed resolution.

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The style of each conciliator may vary but, in general, a conciliation will include the following
steps:
The conciliator explains their role and the manner in which the conciliation is to be run.
Each side briefly outlines their story including what happened, any relevant facts and what
they want.
The conciliator may allow or ask questions.
The circumstances, and any issues arising, are discussed. The conciliator may talk
separately to the parties.
The conciliator assists the parties to reach agreement by identifying common ground,
suggesting possible options and sometimes by making recommendations and assisting
the parties in drafting an agreement in writing.
It is important that prior to the conciliation you review what you want to say at the conciliation
about the unfair dismissal remedy application and, if possible, forward to the Commission any
documentary material you want considered at the conciliation.
What happens at a conference or hearing?
If the unfair dismissal remedy application is not withdrawn or does not settle before or at the
conciliation, the employer and the employee will each receive written notification from the
Commission of any conference or hearing to be held on the application.
Conferences and hearings deal with applications for an extension of time for the lodgment of an
unfair dismissal remedy application, jurisdictional objections to an unfair dismissal remedy
application and the merits arbitration of an unfair dismissal remedy application. A conference is
generally conducted in private while a hearing is usually open to the public.
The notification of a conference or hearing will include the time, date and location of the
conference or hearing. The notification may also include directions for the lodgment of written
material with the Commission by the employee and the employer.
Any application for an adjournment of the conference or hearing must be given in writing and
provide full reasons for seeking the adjournment. Adjournment applications will be granted only
on substantial grounds.
Do I have to be represented by someone?
There is no requirement for you to be represented by another person when you appear in
proceedings at the Commission. You will need the permission of the Commission member
dealing with your case if you wish to be represented by a lawyer or paid agent, unless that
person is:
one of your employees or officers (if you are an employer)
employed by a union or employer organisation, a peak union or peak employer body.
If you decide to represent yourself in proceedings it will be easier for you if you are well
prepared. You may consider bringing one or more individuals with you for support. There is
generally no objection to you doing so, although in a private conference you should be prepared

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to tell the Commission member dealing with your case why you would like the presence of such
individuals.
What if I need an interpreter?
There is no cost to you if you require an interpreter at a conference or hearing, but you must
make a request for the Fair Work Commission to provide an interpreter either when lodging your
application or before the day of the conference or hearing.
Finding your way to a hearing or conference
Before you attend a conference or hearing at the Commission you should check the hearings
and conferences list.
The list identifies all of the cases for a particular day, together with the Commission members
dealing with them, the times of the hearings and conferences and the location detailsthe floor
and the room number.
The list is published each day in capital city newspapers and on the Fair Work Commission
website www.fwc.gov.au. Printed copies of the list can also be found at the Commissions public
counters, near the courtrooms or, in some Fair Work Commission premises, on the buildings
ground floor. If your hearing or conference is in a regional courthouse you may have to ask for
information at the inquiry counter.
Tips about conferences or hearings
When you are addressing a Fair Work Commission member refer to them by their title,
e.g. Deputy President or Commissioner. Commission staff at the conference or hearing
can advise you of the appropriate form of address if you have any doubts.
Make sure you arrive for the conference or hearing early because proceedings begin on
time. Notify Commission staff when you arrive by approaching them in the conference or
hearing room.
If you are delayed for any reason it is important that you contact the Commission as early as
possible to ensure a message is sent to the appropriate Commission staff.
If you have a mobile phone or pager, make sure it is switched off in the conference or
hearing room.
It is customary to bow to the Commission member, by standing and inclining your head, at
the beginning of a hearing and if you leave or enter the hearing room while proceedings
are underway.
It is customary to stand when you are addressing the Commission member or questioning a
witness.
Do not speak when a witness is taking an oath or an affirmation.
Do not interrupt the other party or the Commission member when they are speaking.
If you are attending a face-to-face conference or hearing bring along enough copies of any
documents you want to refer to so that everyone involved has a copy.
Do not eat or chew while in the conference or hearing.

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There is no dress code, but most people attending the Commission dress neatly.
Privacy
In general, unfair dismissal case files and discussions in private conferences are confidential.
Details will usually only be disclosed to the parties directly involved or their representatives. The
Fair Work Commission is required to publish its decisions and does so by reproducing them on
its website www.fwc.gov.au.
How can the Fair Work Commission assi st?
Commission staff can provide you with information over the telephone or at one of our offices,
but cannot provide legal advice or advice on how best to run a case. The Commission can,
however, give information on:
processes in the Commission
how to make an application to the Commission and how to respond to an application that is
made against you
how to fill out forms
where to find useful documents such as legislation and decisions
other organisations which may be able to assist you.
The Fair Work Commission website also contains a range of information that can assist in preparing
for a conference or hearing including:
a copy of the Fair Work Act 2009, the Fair Work Regulations 2009 and the Fair Work
Australia Rules 2010
forms
decisions and orders
contact details
links to other useful websites.
Find out more
Go to the Fair Work Commission website at www.fwc.gov.au.
Call the Commission on 1300 799 675.




Commonwealth of Australia 2013
This fact sheet is not intended to be comprehensive. It is designed to assist in gaining an understanding of
the Fair Work Commission (the Commission) and its work. The Commission does not provide legal advice.