Lodging an unfair dismissal claim yourself versus hiring a representative

Getting summarily dismissed from your job can be traumatic and a smear on your professional reputation. When your employer’s decision to terminate your employment contract is unjust, harsh, and unreasonable, then such dismissal is termed unfair.

You can choose to seek redress by lodging an unfair dismissal claim. The fair work commission demands you lodge Form F2 within 21 days of being dismissed to guarantee the validity of your claim. The inability to apply for redress within the stipulated time frame will cause your claim to be nullified.

Getting adequate representation in an unfair dismissal case can be daunting, especially for a newbie. Finding a dedicated representative like A Whole New Approach is advisable if you are keen on getting your due compensation or reinstatement. It is also important to test an eligibility test to ensure you will end up with your desired result.

Are you facing a crisis at work? Have you been unfairly dismissed at your workplace? Do you wish to lodge an unfair dismissal claim soon? Keep reading to figure out if you can get the job done or hire a representative.

Unfair dismissal claim

According to the Fair Work Commission (Fair Work Act s.394), unfair dismissal is the termination of employment by an employer that is deemed to be harsh, unjust, and unreasonable.

An unfair dismissal can happen because:

• The dismissal was not a case of genuine redundancy, and
• Where the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.

An employee is eligible to make an application for unfair dismissal remedy if they have completed the minimum employment period of:

• 1 year – where the employer employs fewer than 15 employees (a small business employer), or
• 6 months – where the employer employs 15 or more employees.

Constructive dismissal also constitutes an unfair dismissal claim. If you have voluntarily resigned due to hostile treatment at the workplace after exhausting all options possible, then your resignation is deemed equivalent to an unfair dismissal.

Employers often take advantage of situations such as redundancy or employee misconduct to terminate employment at a whim. This is often debilitating to employees who are suddenly forced into unemployment. The provision of an unfair dismissal claim is to protect the employee and ensure that dismissal follows procedural fairness and is not used as a weapon against workers.

To lodge an unfair dismissal claim, you must have been dismissed from your job. Application for relief from unfair dismissal doesn’t automatically guarantee you due compensation or reinstatement. Your employer is given a chance to respond to your allegation. If they present enough evidence that your dismissal was fair, reasonable, and followed due process, then you have no case. The burden of proof in an unfair dismissal claim lies on the employee. It is up to you to sufficiently show cause why you think your employer had acted harshly or unreasonably.

Lodging an unfair dismissal claim: doing it yourself

If you want to lodge an unfair dismissal claim yourself, these steps simplify the process:

• Get dismissed: There is no way you can apply to claim relief from unfair dismissal if you haven’t been terminated from work by your employer. Also, note if you resigned due to hostile actions at the workplace; It constitutes constructive dismissal. This is also time to check your eligibility such as your work duration or whether you are an employee protected by law.
• Apply for unfair dismissal claim: This has to take place within 21 days from the date you have been fired or the case is invalid. You need to fill out Form F2 and post or deliver it to the commission office near you. You will pay a fee for this or apply for a waiver using Form F80 if you are currently undergoing financial hardship.
• Getting the Employer’s response: After an application is filed, the employer is sent a copy of the claim and expected to respond within 7 days. They will have to refute the claim if they believed they acted fairly.
• Jurisdictional objection: This happens after conciliation meetings. If the employer makes a jurisdictional objection to the claim, there is a hearing. Here, the case is either closed or continued. Conciliation meetings are optional and happen over the phone. The goal here is to achieve a settlement between the applicant (employee) and respondent (employer).
• Formal hearing: If the settlement is unsuccessful, it is moved to a hearing. A hearing is like a court where a commission member acts like the judge.
• Decision: At the hearing, the commission listens to both parties and scrutinizes available evidence before deciding for both parties. The commission may decide to dismiss your case if it lacks sufficient evidence or award compensation if you are found to have been unfairly dismissed.
• Appeal: If unsatisfied with the commission’s decision, any of the parties can appeal the judgment using Form F7.  However, you should note you can only appeal if given permission and this must be done within 21 days after the decision is taken.

Hiring a representative: Making an informed decision

The meaning of represent as used in s.596 of the Fair Work Act and the Rules, is not limited to acting for a person. It will include other duties such as:

• Appearing as an advocate in a conference or hearing conducted by a member of the staff of the commission
• Participating in a conference or hearing other than as an advocate
• Negotiating a settlement or compromise of the matter in a conciliation conference
• Lodging written applications, responses, submissions, and other documents with the commission, or
• Sending letters or emails to both the commission and the other party or lawyer or paid agent.

When you hire a professional representative to handle your unfair dismissal claim, you get to sit back and watch them take over the rein. This doesn’t exclude you from the process, it only means that they are going to guide you through the process and be with you during conciliatory meetings and hearings. A professional representative will explain some of the muddled processes to you and help you make informed decisions.

However, you should know that the Fair Work Commission does not cover the fees for such representation unless you are going for the free workplace advice service. You should discuss this with your representative on what their fees look like and whether you need a retainer to hire their services. It is also advisable to find a professional workplace advisor within Australia like A Whole New Approach (AWNA). Having a representative abroad can make things difficult; they might be constrained by time or unavailable to physically attend hearings.

It is essential to hire the right representation for your unfair dismissal claim as erroneous guidance might create dire consequences for you.

Wrapping up

While opting to lodge an unfair dismissal claim, you must do so within 21 days from your date of dismissal, or else, such application is invalid. Navigating the world of legal jargon can be daunting for the non-professional. If you are muddled by the legal process of seeking redress, getting a representative such as A Whole New Approach, is your best bet. As a team of professional workplace advisors, we work strictly with employees to help them seek the compensation they deserve or get reinstated to their position. We are the superheroes of the workplace, committed to better and safer workplaces across Australia.

Whether you are seeking redress from wrongful termination of your employment or being forced to resign from your workplace, the onus lies on you to prove that such dismissal is unjust, unreasonable, and harsh. A Whole New approach can help you assess the eligibility of your case for an unfair dismissal claim and get you due compensation from your employer. Book a free confidential consultation session with us today when you speak to any member of our team on 1300 766 700 to discuss your options. We are available in Australia and work in all states, NSW, Qld, Victoria, Tas, SA, WA, and NT.