What to expect from an unfair dismissal application
I often have people come to me who have lost their jobs and are considering applying for an unfair dismissal. I have written this blog to give you an idea of what you can expect if you do and also some tips on what you can do to make the process more efficient.
Can you lodge an unfair dismissal
The first hurdle to cross is to determine whether you are even eligible to lodge an unfair dismissal. Consider the following:
Applications must be lodged within 21 days of the dismissal. You may be granted an extension but only in exceptional circumstances.
You must have more than 12 months of continuous service if you worked for a business with less than 15 employees.
You must have more than 6 months of continuous service if you worked for a business with 15 or more employees.
You also need to earn less than $142,000 per year or be covered by a modern award or enterprise agreement.
The process
The first stage of the unfair dismissal process is to complete the paperwork and lodge it with the Fair Work Commission (FWC). After this the employer has a chance to lodge a response. Generally within about 6 weeks the FWC will schedule a mediation session which is done by phone which they call conciliation. This is a chance for the parties to reach a settlement agreement without the need to go to a formal hearing.
If it doesn’t settle, then the FWC will schedule a formal hearing if you are represented or a conference if you are not. A hearing is much like a court trial where both parties argue their case and support it with evidence including documents and witnesses. Any witness brought in to support you may be cross examined by the other party. This means that the other party can question them to try to discredit their evidence.
A conference is much like a hearing but generally the parties are not represented and the Commission will assist the parties with the process. You’ll still need to organise your own evidence and witnesses will still give their evidence under oath.
Potential outcomes
If you are successful the Fair Work Commission can either:
Order compensation up to a maximum amount of 6 months of salary.
Reinstate you to your job or to a similar job on the same terms and conditions of employment. It may also order that you are back-paid to the date of the dismissal.
Keep in mind that a successful unfair dismissal is meant to compensate you for what you lost, not make you a millionaire, this is demonstrated by the following statistics:
60.7% of compensation orders were for $10,000 or less.
8.1% of hearings resulted in a reinstatement order.
This is compared to 84.1% of conciliation resulting in a settlement of $10,000 or less. The benefits of an outcome at conciliation include:
Less professional/legal fees.
You have a guaranteed financial outcome.
No more stress.
No risk of going to a hearing and losing.
You can concentrate on finding a new and better job.
How to prepare
Before you lodge an unfair dismissal, gather as much information as you can which can include:
Writing up a timeline of events
Gathering all relevant documents including
Emails, memos and written warnings
Show cause and termination letter
Witness statements
Contract of employment and payslips
You also need to consider whether you want an earlier settlement or whether you want to go to a hearing which can cost more if you are represented, keeping in mind that generally you cannot recover your costs in the FWC, even if you are successful.
This article is for general information only. If you are considering applying for an unfair dismissal, please contact me through my website for professional advice and representation.
