Unfair dismissal claims are becoming very common, do you know what to do?
Considering dismissing and employee – it could lead to an unfair dismissal case?
If you are considering dismissing and employee be aware that they might be to win an unfair dismissal action if you have not followed the correct procedure.
Often employers lose unfair dismissal cases due to;
- Deficiencies in the process prior to and during dismissal that can lead to a failure to pass the ‘Reasonable’ test at the FWC
- The reasons for dismissal not passing the ‘Just’ test at the FWC
- Failure to afford the employee procedural fairness
- Failure to properly investigate the issues and consider all options hat can lead to a failure to pass the ‘Harsh’ test at the FWC.
If you are considering terminating an employee especially in the case of misconduct contact us to insure you have done all you can to defend and unfair dismissal action.
What happens when an employee lodges an unfair dismissal claim?
1. You will receive notification from the Fair Work Commission detailing the application.
2. You respond to the application – citing your version of events.
3. Telephone conciliation is organised between you and the terminated employee, we can assist by speaking on your behalf at the conciliation.
4. The conciliator will attempt to guide participants towards an agreeable settlement of the claim, in many cases settlement is reached at this time. Around 80% of matters are settled at conciliation.
For more detail of the process https://www.fwc.gov.au/disputes-at-work/how-the-commission-works
This video about conciliation is worth watching: https://www.fwc.gov.au/termination-of-employment/unfair-dismissal
5. If the matter is unable to be settled at conciliation the matter will move on to a conference or hearing.
The video is conferences and hearing from the FWC is worth watching: https://www.youtube.com/watch?v=8FCBQ07PqgM
Are you covered by the Fair Work Act unfair dismissal provisions:
It is important that if you are dismissed and feel that the dismissal was unfair, if you wish to lodge an application to the Fair Work Commission that you do so within the time frame set out in the Fair Work Act.
The Fair Work Act 2009 allows you 21 days to lodge this application. If your application is lodged outside of that time frame you must seek an extension of time if you want your application to proceed.
When deciding whether or not to extend the time for your application the Fair Work Commission will consider a number of issues and may allow a further period for the application to be made by a person under section 394, subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account,
● the reason for the delay;
● whether the person first became aware of the dismissal after it had taken effect;
● any action taken by the person to dispute the dismissal;
● prejudice to the employer (including prejudice caused by the delay);
● the merits of the application; and
● fairness as between the person and other persons in a similar position.
You must also satisfy the minimum employment period and be under the high income threshold, read our blog for more details
If you think that you may have been unfairly dismissed check out the Fair Work Commission web site for details of what to do and how to make an unfair dismissal application.