A person who believes they have been unfairly dismissed can make an application to the Fair Work Commission.
What are the lodgement timeframes?
An application must be made within 21 days of the dismissal taking effect . However, the Fair Work Commission has discretion to extend the timeframe for making an unfair dismissal application if 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;
- any possible disadvantage to the employer;
- the merits of the application; and
- fairness as between the person and other persons in a similar position [s 394].
What fees can I expect to pay?
Unfair dismissal applicants are required to pay fees prescribed by regulation. The Regulations prescribe a modest application fee ($70.60 at 1 July 2017), the method for indexing the fee and the circumstances in which all or part of the fee may be waived or refunded. The fee is refunded if the matter settles or is withdrawn prior to going to the tribunal [s 395].
What is the procedure through the Fair Work Commission?
The Fair Work Commission is required to decide certain matters before considering the merits of the application:
- whether the application was made within the 21 day time limit;
- whether the person is protected from unfair dismissal;
- whether the dismissal was consistent with the Small Business Fair Dismissal Code (only relevant where the employer is a small business employer); and
- whether the dismissal was a genuine redundancy [s 396].
The Fair Work Commission must hold a conference or hearing in relation to a matter that involves contested facts.
What is a Conference?
- Fair Work Commission conferences are the preferred option in an unfair dismissal claim.
- Fair Work Commission conferences are informal and must be conducted in private when considering an application.
- The Fair Work Commission has the power to direct people to attend a conference at a time and place specified by the Fair Work Commission, but must take into account the wishes of the parties, for instance where it holds the conference or the method of conducting it.
- The Fair Work Commission must take into account any difference in the circumstances of the parties when considering and informing itself in relation to the application [s 398].
What is a Hearing?
The Fair Work Commission must only hold a hearing in relation to an unfair dismissal matter if it considers it appropriate after taking into account the views of the parties and where a hearing would be the most effective and efficient way to resolve the matter. Unfair dismissal hearings must be held in public, except where evidence is of a confidential nature.
The Fair Work Commission can hold a hearing in relation to only part of an unfair dismissal claim if it decides that an element of the claim is best dealt with in a formal hearing. For example the Fair Work Commission might hold a hearing on an initial matter, such as whether the dismissal was a genuine redundancy, but then deal with the rest of the matter by way of a conference [s 399].
Can I have someone representing me?
A person may be represented by a member, officer or employee (whether legally qualified or not) of a union, employer association or peak council representing the person.
Lawyer or paid agent
A person may be represented in a matter before the Fair Work Commission by a lawyer or paid agent, but only with the permission of the Fair Work Commission.
The Fair Work Commission may grant permission for a person to be represented by a lawyer or agent only if:
- it would allow the matter to be dealt with more efficiently, having regard to the complexity of the matter
- the person to be represented is unable to represent himself, herself or itself effectively
- it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter (Section 596).
However, the Fair Work Commission's permission is not required if the lawyer in question is representing the person in their capacity as an employee of an employer or company defending a claim.
Can I get the other party to pay my costs?
Generally, a person must pay their costs associated with hiring a lawyer or paid agent to represent them in a matter before the Fair Work Commission.
Cost orders - Lawyers and Paid Agents
A person may make an application for costs against the other party’s lawyer or paid agent within 14 days after a matter has been decided by the Fair Work Commission. This means that a person believes that the other party’s lawyer or paid agent should pay the costs they have incurred.
The Fair Work Commission can make cost orders against lawyers and paid agents in two circumstances:
- where the lawyer or paid agent caused costs to be incurred by the other party to the matter because they encouraged a person to commence or continue a matter when it should have been reasonably apparent there was no reasonable prospect of success
- where they have caused costs to be incurred by the other party because of an unreasonable act or omission in conducting or continuing the matter.
Cost orders – a person
In addition, the Fair Work Commission can make cost orders against a person in the following circumstances:
- if a person made or responded to an application, vexatiously or without reasonable cause
- if a person made or responded to an application and it should have been reasonably apparent to the person that their application or response to an application had no reasonable prospects of success [s 611].
What happens when a cost order is not complied with?
Not complying with a cost order could result in the Federal Court or Federal Circuit Court imposing a civil (monetary) penalty.
Enforcing orders: Orders of the Fair Work Commission can only be enforced through separate proceedings in the Federal Courts. In this instance, employers and employees should obtain independent legal advice on such matters.
Can I appeal a decision of the Fair Work Commission?
The Fair Work Commission cannot grant appeals from a decision made in an unfair dismissal case unless it is in the public interest to do so.
The Minister for Employment and Workplace Relations can apply to the Fair Work Commission for a review of an unfair dismissal decision (other than those made by the full bench) if the Minister believes the decision is contrary to the public interest.
To the extent that an appeal is based on an error of fact, it will only be allowed where that error is a significant error of fact [s 400].
The Fair Work Commission has discretion to deal with appeals as it considers appropriate. Appeals will be conducted in a hearing unless Fair Work Australia decides that the appeal can be determined without oral submissions and the parties agree to the appeal being conducted without a hearing.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.