Australian Government Fair Work Ombudsman – Dismissal, termination & redundancy

Dismissal & termination of employment

A person has been dismissed from their employment when:

• their employment has been terminated at the initiative of the employer, or
• they have resigned their employment but the resignation was forced by the conduct, or a course of conduct, by the employer.

If eligible, you can make an application to the Fair Work Commission if you:

• believe your dismissal was unfair, or
• believe your dismissal was for a prohibited reason.

Redundancy

An employee can become redundant when an employer no longer needs that person’s job to be performed by anyone. This is usually because of changes to the operational requirements of the workplace.

If the role to be made redundant is covered by an award or agreement, the consultation provisions in that award or agreement should be followed.

What is an unfair dismissal?

Overview

If you think you have been unfairly dismissed, you can lodge what is called an ‘application for unfair dismissal remedy’, to seek reinstatement or compensation from your employer.

Before lodging an application with the Fair Work Commission it is important to understand that only a Member of the Commission can decide whether your dismissal was unfair. We will not investigate the circumstances of your dismissal, and if your case goes to a hearing you will need to present evidence in order to satisfy a Member of the Commission that:

• you were dismissed, and
• your dismissal was harsh, unjust or unreasonable, and
• your dismissal was not a case of genuine redundancy, and
• if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.

The process

When you lodge an application for unfair dismissal remedy you are beginning a formal legal process. When your application is lodged, a copy of your application is sent to your employer, and we will contact them to ask them to respond to your application.

Most unfair dismissal cases are resolved at a conciliation, which is a voluntary and informal telephone meeting between yourself, your employer, and a Fair Work Commission Conciliator, held not long after your application is lodged and a response has been received from your employer.

If your case can’t be resolved at conciliation it will proceed to a conference or hearing before a Member of the Commission. This is when a decision will be made about whether your dismissal was unfair.

Eligibility & remedies

Eligibility

To make an application for unfair dismissal remedy, you must be:

• covered by the national unfair dismissal laws, and
• eligible to make an application according to criteria in the Fair Work Act 2009

For an explanation of eligibility requirements please see below.

National unfair dismissal laws

You are covered by unfair dismissal laws if you are a part of the national workplace relations system.  Whether or not you are a part of this system depends on the work that you do, and where you live. The national system covers:

• all employees in Victoria, the Northern Territory and the Australian Capital Territory
• employees of private enterprise in New South Wales, Queensland and South Australia
• employees of private enterprise and local government in Tasmania
• employees of constitutional corporations (including Pty Ltd companies) in Western Australia (this may include some local governments)
• Employees of the Commonwealth or a Commonwealth authority, and
• Waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce.

Minimum employment period

The Fair Work Act 2009 provides that you are eligible to make an application for unfair dismissal remedy if you have completed a minimum employment period of:

• one year—if your employer employs fewer than 15 people, or
• six months—if your employer employs more than 15 people.

High income threshold

To be eligible to make an unfair dismissal application you must earn less than the high income threshold. If you earn more, then at least one of the following must apply:

• you must be covered by an award, or
• you must be covered by an enterprise agreement.

The high income threshold is adjusted annually on 1 July and does not include superannuation guarantee contributions.

The current high income threshold is $133,000 per year.

Remedies

Introduction

Most unfair dismissal cases settle at conciliation. If you choose to participate in conciliation, a Fair Work Commission Conciliator will hold discussions between you and your employer so you can try to reach a settlement.

Remedies at conciliation

Settlements reached at conciliation are private, and may include:

• reinstatement
• compensation for lost wages
• a statement of service (stating how long you worked for the employer and what you did)
• an apology, and/or
• a non-disparagement agreement (where neither party can bad-mouth the other)

Remedies at a conference or hearing

If you are unable to reach a resolution at conciliation, your case will proceed to a conference or hearing before a Member of the Commission. In considering your application for unfair dismissal remedy a Member must take into account:

• whether or not there was a valid reason for your dismissal related to your capacity or conduct
• whether or not you were notified of that reason
• whether or not you were given an opportunity to respond to that reason
• any unreasonable refusal by your employer to allow you a support person present to assist at any discussions relating to your dismissal
• if the dismissal related to unsatisfactory performance, whether or not you had been warned about that unsatisfactory performance before you were dismissed
• the degree to which the size of your employer’s enterprise would be likely to affect the procedures followed when you were dismissed
• the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise affected the procedures followed when you were dismissed, and
• any other matters that the Commission considers relevant

If the Member who hears your case considers all of these factors and is satisfied that you were unfairly dismissed then they may order:

• reinstatement, together with continuity of service and lost remuneration, or
• where reinstatement is inappropriate, payment of compensation for lost wages

Rights & obligations

Introduction

Whether you are an employee or an employer, you have certain rights and obligations if you are party to an application for unfair dismissal remedy.

Service of documents

If you lodge an application for unfair dismissal remedy, copies of each document you send to the Fair Work Commission will be sent to the other parties to the matter, or to their representative (such as a lawyer or union representative) if they have one.

When responding to an application, you need to serve a copy of each document you send to the Commission on the other party to the application.

You can serve a document by:

• sending the document by express post to the other party or their representative (and keeping the sender’s copy of the identifying barcode)
• sending the document by registered post to the other party or their representative, or
• sending the document by email to the email address of the other party or their representative.

If you don’t serve relevant documents on other parties to the application, we may forward a copy for you.

If you are concerned about correspondence or a document being forwarded by the Commission to the other parties to an application (for example, if it contains personal medical details or other confidential information) you should contact us to discuss your options before sending it to us.

Representation

There is no requirement for you to be represented by another person in an unfair dismissal matter. You can have a support person or representative (including a lawyer) appear with you at conciliation, and you can be represented when you appear at any conference or hearing.

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 at a hearing, unless that person is:

• one of your employees (if you are an employer), or
• employed by a union or employer association.

Resolving issues at the Commission

Overview

If you choose to lodge an application for unfair dismissal remedy, the process is generally as follows (though each individual case is different and may need a slightly different process).

1. You send an unfair dismissal application to us.
2. We send a copy of your application to your employer.
3. We send both you and your employer a written notice with the date and time of a conciliation conference.
4. Your employer is required to respond to your application and submit any jurisdictional objections they may have to your claim. They must send their response to you and to us at the Commission.
5. Conciliation takes place with a Commission conciliator (usually by telephone) to try to resolve the matter.
6. If unresolved at conciliation, your application will go to a formal hearing or conference to be determined by a Member of the Commission.

After your unfair dismissal application is lodged

Once your application has been lodged with the Commission your employer should receive written notification of the application, information about the process, and an employer response form (Form F3).

We will send both you and your employer written notice (this is called a Notice of Listing) of the date and time of your conciliation conference.

What is conciliation?

Conciliation is an informal, private and generally confidential process where a Commission conciliator will try to help you to resolve your unfair dismissal application.

The conciliator is independent and does not take sides, but works to bring you and your employer to an agreed resolution.

What happens at conciliation?

It is important that prior to the conciliation conference you think about what you want to say about your dismissal and, if possible, send us any documents you want considered at the conciliation.

On the day of conciliation the process is generally as follows.

• The conciliation conference is usually held by telephone and takes approximately 90 minutes.
• A conciliator will call the employee and the employer on a conference call.
• The conciliator will explain the process, and then:
• ◦ask the parties to briefly summarise why the dismissal was unfair/fair
• ◦hold an open discussion between the parties
• ◦hold private discussions with each party to discuss ways in which the matter can be resolved
• ◦discuss proposals for resolution
• If the parties reach an in-principle agreement, the conciliator can prepare a written agreement for the parties to sign.
• If the parties do not reach an agreement, the conciliator will explain the next steps in the process.

Hearings & conferences

If your unfair dismissal application is not withdrawn or does not settle at or before your conciliation, both you and your employer will receive written notification of any conferences or hearings to be held on the application.

The notification will include the time, date and location of any such conference or hearing.

If you have a good reason for not being able to attend on that day you must send us a request for adjournment (change of time or date).

A request for an adjournment must be sent in writing and provide full reasons why you want the adjournment. A copy should be sent to the other party as well. Adjournment applications will only be granted on substantial grounds.

© fairwork.gov.au

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