How to Lodge an Unfair Dismissal Claim

If you’ve recently been dismissed from your employment, and you believe it was harsh, unjust or unreasonable, you may be able to lodge an Unfair Dismissal claim with the Fair work Commission.

Lodging a unfair dismissal claim is not that hard, and the information below will guide you through it, its lodging a good application, good debating skills at the conciliation and settling well is the challenge. A Whole New Approach is happy to help you, its what we do, but getting good outcomes is the challenge and your fair better off being represented.

Step 1: Consider whether you meet the eligibility requirements

Not everyone is eligible to make an Unfair Dismissal claim and it is important that you meet the following criteria before proceeding:

• Your dismissal became effective less than 21 days ago

In other words, your dismissal becomes effective the day after your last day of work. If you were dismissed effective immediately, then time starts running from the termination.

Note that the 21 days refer to calendar days, not business days, and therefore include weekends and public holidays.

• You have been employed for the minimum employment period.

For businesses with over 15 employees, the minimum employment period is 6 months.

For businesses with under 15 employees, the minimum employment period is 12 months.

Any periods of absence, including annual leave and sick leave, are deducted from the calculation of the minimum employment period.

• You are a permanent employee, or otherwise a casual with regular and systematic work.

Permanent employees, particularly part-time and full-time employees, are eligible for Unfair Dismissal.

However, casual employees are only eligible if they had regular and systematic work. That means there must have been a pattern in the work they were given at the company, such as fixed days or a consistent roster. Conversely, if a casual employee only worked occasionally for the company and there was no pattern to the work they received, it may be difficult to show that the work was regular and systematic to be eligible for Unfair Dismissal.

• You are not employed by a State government employer. If this is the case, you will most likely need to pursue your matter through your State’s industrial relations commission. However, if you are unsure, you can still contact us on 1300 766 700 to see where you stand.
• Your base salary is below the high-income threshold, or otherwise you are covered by an award or an enterprise agreement.

The high-income threshold is currently $158,500, as of 1 July 2021. The threshold is adjusted each year on 1 July and is typically slightly increased.

Your base salary must be below the high-income threshold. Compulsory superannuation contributions are excluded from the calculation,[1] as well as any payments that cannot be determined in advance such as commissions, bonuses and overtime. For vehicle allowances, the private use of the vehicle can be included as part of the base salary, but use for business purposes is excluded.[2] The table below summarizes which payments may be included or excluded from the calculation of base salary.

Included	Excluded
Vehicle allowance [3]	Compulsory superannuation contributions
Guaranteed [4] or pre-determined [5] overtime	Commissions
Tax-deductible work-related expenses [6]	Incentive-based payments & bonuses
	Overtime (except for guaranteed overtime) [7]
	Reimbursements (e.g. meal allowances or accommodation allowances) [8]

Awards are enforceable legal documents that contain the minimum terms and conditions of employment in a particular industry or profession. These terms and conditions may include:

• Minimum wage rates (particularly for different skill levels)
• Annual leave and annual leave loading
• Other types of leave
• Hours of work
• Penalty rates, overtime and casual rates
• Allowances
• Consultation

Whether you are award covered should be in your contract of employment. Otherwise, you can check the list of modern awards at the following link to see whether your role is covered: Modern Awards List.

Enterprise agreements also contain minimum terms and conditions for employment. Typically, enterprise agreements include terms and conditions such as:

• Wage rates
• Employment conditions (e.g. hours of work, meal breaks, overtime)
• A consultation process
• Dispute resolution procedures
• Wage entitlements

In the case where employees are not covered by an award or enterprise agreement, they are still protected by the National Employment Standards, which set minimum terms and conditions of employment. Nevertheless, it is important to know whether or not you are covered by an award or an enterprise agreement as if you are over the high-income threshold you won’t be eligible for Unfair Dismissal unless you are covered.

If you are ineligible for Unfair Dismissal, you may be able to pursue a General Protections claim in the alternative. For a General Protections claim, there is no minimum employment period, no high-income requirement, nor are casuals excluded from making an application. Additionally, through pursuing a General Protections claim, you can also seek general damages for psychological pain and suffering, not just compensation for the time you are likely to be out of work.

Step 2: Complete the Unfair Dismissal application

If you think you meet the eligibility requirements, the next step is to complete the Unfair Dismissal application, which is entitled ‘Form F2’ on the Fair Work Commission website. You can draft this application yourself, or you can have it professionally done for you by representatives such as ourselves (call 1300 766 700).

The application requires you to fill out your personal details and details of your employment. You must then detail why you think your dismissal was unfair, typically using a chronology to describe the events leading to dismissal. You must establish that the dismissal was ‘harsh, unjust or unreasonable’. You must also state the outcome you want from the case, which is typically either reinstatement or compensation for how much time you may reasonably be out of work, up to 26 weeks’ pay.

By obtaining representatives such as ourselves, you can ensure your application is drafted to a very high standard and maximize your prospects of getting the outcome you deserve.

There is a fee of $74.90 to lodge the form. However, if payment of the fee would cause serious hardship, you can apply for a fee waiver along with your application.

Step 3: Lodge the application with the Fair Work Commission within 21 days of the dismissal

Once you have completed the application, you must lodge it with the Fair Work Commission within 21 calendar days of the dismissal. You can do so via email, post or online.

Step 4: Regularly check your emails for updates

After you’ve lodged the application, make sure you regularly monitor your emails for updates on the progress of your application. These updates could include confirmation that your application has been accepted, the employer’s response to your application (Form F3), and the notice of listing for your conciliation conference.

Step 5: Attend the conciliation conference and negotiate for your desired outcome

The conciliation conference for your Unfair Dismissal claim will be scheduled around 3-5 weeks after the application has been lodged. Conciliation conferences are typically held over the phone, for the convenience of all parties. Conciliation is convened by the Fair Work Commission, and in attendance would be yourself, your employer, and a conciliator from the Fair Work Commission who is responsible for facilitating negotiation between the parties.

Conciliation lasts approximately one and a half hours but can last as long as three hours or more. It is a good idea to ensure you are free for most, if not all, of the day of your conciliation conference.

Both you and your employer can seek representation for this conference, which can be highly beneficial in maximizing the negotiation outcomes and possible settlements. Representatives speak on your behalf and negotiate for you, meaning your direct interactions with your employer are kept to a minimum, if at all. Moreover, representation can ensure access to greater skill and expertise in negotiations, so as to achieve the best outcome possible.

Supporting you to lodge an unfair dismissal claim

Depending on your case and which state you are from, even after you have been dismissed, you can either pursue a General Protections Application in the Fair Work Commission, or a Discrimination Complaint in the relevant Human Rights Commission.

If your case is of non genuine redundancy, constructive dismissal or a workplace investigation you’re going through, call, and get honest, direct advice, it cost nothing.

To discuss what options may be best in your circumstances, call A Whole New Approach on 1300 766 700 for an obligation-free consultation.

By Gary Pinchen.

References

[1] Fair Work Act 2009 (Cth) s 332(2)(c); discussed in Ablett v Gemco Rail Pty Ltd [2010] FWA 8124, [31]–[32] (Williams C).

[2] Rofin Australia Pty Ltd v Newton Print P6855. Citing Condon v G James Extrusion Company (1997) 74 IR 283, 288.

[3] Zappia v Universal Music Australia Pty Ltd T/A Universal Music Australia [2012] FWA 3208 (Hamberger SDP).

[4] Cross v Bechtel Construction (Australia) Pty Ltd [2015] FWC 3639 (Catanzariti VP).

[5] Foster v CBI Constructors Pty Ltd [2014] FWCFC 1976 (Catanzariti VP). Available at

[6] Read v Universal Store Pty Ltd T/A Universal Store [2010] FWA 5772 (McKenna C).

[7] Fair Work Act 2009 (Cth) s 332; Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137, [19].

[8] See e.g. Schreuders v Freelancer International Pty Ltd [2015] FWC 3286 (Booth DP).