Employment & Industrial Relations
8. Unfair Dismissal Claims
Firm / Chambers:
Last updated: 26 Jul 2015
- An unfair dismissal application must be lodged with the Fair Work Commission and served on (sent to) your employer. There is an application fee however this may be waived in limited circumstances.
- A conciliation date will be listed and the employer is required to lodge a response to your unfair dismissal claim.
- The conciliation conference is generally held over the telephone. A conciliator appointed by the Fair Work Commission will assist in attempting to resolve the issue.
- The session may consist of:
- an opportunity for the employee and the employer to each tell their side of the story;
- discussion of the strengths and weaknesses of the unfair dismissal claim;
- discussion of any procedural issues such as:
- whether the application was lodged outside the 21 day time limitation period;
- whether the employee is not under the national industrial relations system; or
- whether the employee earns more than the maximum allowed to bring an unfair dismissal claim;
- an opportunity to answer any immediate questions from the conciliator;
- breaking into private sessions with the conciliator;
- engaging in negotiations such as:
- settling the matter for an amount of compensation or reinstatement;
- agreeing to return property;
- agreeing to pay outstanding entitlements;
- agreeing to provide the employee with an opportunity to resign; and
- agreeing to provide the employee with a statement of service.
- If the parties can reach an agreement then the matter can be finalised in a deed of release which is generally drafted by the conciliator.
- If the parties sign the deed of release then any settlement amount should be paid by the agreed date and the matter will be finalised.
- If the parties cannot come to an agreement the employee must decide whether to proceed to hearing.
- Unfair dismissal application forms are available on the Fair Work Commission website: https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/what-unfair-dismissal.
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