Working with employers in defending unfair dismissal claims in Newcastle, Sydney and New South Wales.
An employer should seek legal advice as soon as possible if they are in need of defending unfair dismissal applications in relation to an employee that was dismissed from their business. If you have received an unfair dismissal application from a former employee, call us on (02) 4929 7002 or email us at firstname.lastname@example.org to discuss your options.
Objecting to an unfair dismissal application
If an employer believes that the Fair Work Commission (FWC) does not have jurisdiction to deal with an unfair dismissal application, the employer can lodge a jurisdictional objection. There are a range of reasons why an employer could raise a jurisdictional objection, including that the applicant:
- was not an employee (e.g. independent contractor);
- was made genuinely redundant;
- was dismissed after being specifically employed for a period, task, seasonal contract or traineeship agreement;
- was not a national system employee; or
- lodged their application to the FWC outside the specified time limit (and in the absence of exceptional circumstances).
Following the objection, the Commissioner will organise a determinative conference or hearing to decide whether the employee’s application will proceed or will be struck out on the basis of the objection raised. However, prior to the conference or hearing, the matter might be resolved at conciliation.
- the nature of the available alternative position;
- if the employee has the skills and competence to perform the position immediately or with a reasonable period of training;
- the qualifications required to perform it;
- the employees skills, experience and qualifications;
- location of the new position; and
- the renumeration.
Conciliation is a voluntary process which may assist an employee and employer to resolve an unfair dismissal dispute without proceeding to a hearing or conference. During a conciliation, each party can negotiate in an informal manner and outcomes are not limited by law. A conciliation is ordinarily schedule shortly after the employer provides their response to the employee’s unfair dismissal application. Parties are not obligated to reach a settlement during a conciliation.
Determinative conference or hearing
If the matter cannot be resolved at conciliation, the unfair dismissal application may be referred to a determinative conference or hearing. A determinative conference is an arbitration proceeding conducted in private, and results in a decision being made about the unfair dismissal application. The procedures for a determinative conference are more informal than a hearing. A hearing is a more formal proceeding which is conducted in public, and results in a decision being made about the unfair dismissal application.
Sometimes the Commission can make a determination of a matter based on written submissions, without the need for a determinative conference or hearing.
What remedies are available to an employee?
If the Commission finds in an employee’s favour, they can make an order for reinstatement, or compensation. Compensation is limited to the lower amount out of half of the employee’s annual wage (as at the 26 weeks prior to dismissal), and the compensation cap. The compensation cap is half of the high income threshold. As at 1 July 2019, the compensation cap was $74,350.00.
In determining the amount of monetary compensation, the Commission will consider a range of factors such as the employee’s length of service, attempts to mitigate loss, and the remuneration the employee would have received if they had not been dismissed. IF the Commission finds that misconduct contributed to the employer’s decision to dismiss the person, FWC must reduce the amount of the compensation it would otherwise order.
Small Business Fair Dismissal Code
A person will not be unfairly dismissed if the employer is a ‘small business’ and complied with the Small Business Fair Dismissal Code (Code). For the purpose of the Code, a small business is a business with fewer than 15 employees. The Code is relevant to both summary dismissal (i.e. without notice) and a dismissal with notice.
If you have received an unfair dismissal application from a former employee, call us on (02) 4929 7002 or email us at email@example.com to discuss your options. It is important that you seek advice as soon as possible.
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Our experienced team of solicitors can help you with every aspect of the enterprise agreement negotiation and bargaining process. If you need assistance with enterprise agreements or the bargaining process, email us at firstname.lastname@example.org or call us on (02) 4929 7002.