This is where unfair dismissal claims can end up – in a hearing room at the Fair Work
Commission.
The Commission only deals with cases that are brought before it by a dismissed employee.
It does not investigate unfair dismissal allegations and it does not commence prosecutions against
employers.
The only way to have an unfair dismissal claim dealt with is for a dismissed employee to
submit an application to the Commission.
This video will explain how to make that application and what will happen after you do.
Making an unfair dismissal application is a legal process ‐ it is not like just making
a complaint about your employer.
Your application has to be taken seriously and you have to follow the proper procedures.
It's very important that you lodge your application within 21 days of your dismissal becoming
effective.
Late applications are not allowed unless there are exceptional circumstances.
Before you make an application you should consider if the Commission has the jurisdiction
to hear your case.
First, you must be covered by national unfair dismissal laws.
Second, you must meet definitions to be an employee who has been dismissed.
And third, you have to meet a number of eligibility criteria – including length of employment.
There is an eligibility checklist on our website.
Finally, you can’t make multiple applications using different sections of the Act.
We have a special video about Jurisdictional objections that explains all of those jurisdiction
rules in detail.
Or you can follow the links on the page next to this video for more information.
You start your unfair dismissal claim by lodging an application form.
This form contains all your contact and employment details.
And it sets out why you think your dismissal was unfair.
It’s important to answer every question and ensure the form is signed.
Your application is processed by a section of the Commission called the Registry.
Registry’s job is to make sure the paperwork meets all the requirements.
So the case managers can tell you which forms you need and briefly explain the procedures
of the Commission to you.
But they cannot help you with your specific case.
They have to be impartial.
So all of the registry officers are obligated by law to be impartial which means they don’t
act for the respondent or the applicant.
They have to provide information as to the processes and procedures of the tribunal but
they can’t act for the applicant or the respondent.
Staff in the Commission are not allowed to give you legal advice.
So the staff can’t answer questions like: Was I dismissed unfairly?
Do I have a case?
Should I lodge an application?
What should I say in my application?
Have I included enough details?
What is likely to happen in a hearing?
What sort of payout can I get?
You need to get your own professional advice.
In some states there is a scheme of independent duty lawyers, who can provide advice on some
matters.
Check with the unfair dismissal team if this is available in your state.
If you are going to be represented you should include the representative’s contact details
on your application form.
This representative does not have to a lawyer.
It could be a support person such as a union representative, an advocate or even a family
member.
Before you send the application form into the Commission you should check that it is
complete.
Make sure you have provided current contact details for you, any representative and your
former employer.
Your employer’s details will be on your pay-slip.
Check that you have supplied the date that you started work, the date you were notified
of your dismissal and the date you actually finished work.
You should state the reasons for dismissal given by your employer.
If you have a letter of dismissal or separation certificate make sure you attach copies of
those.
You must explain why you believe the dismissal is unfair.
Try to be as detailed as you can and respond to any reasons the employer gave you for your
dismissal.
And don’t forget to sign the form.
After the Commission gets your completed application form we send it to the employer, who gets
to see everything you have told us.
The employer then has 7 days to respond to your arguments in the official response form.
They send that form to the Commission and also directly to you using the contact details
you provided.
Now both sides know what the other is arguing.
So – what happens next?
The Commission will contact you to arrange a conciliation.
It’s often a good way to informally resolve the matter without the time and cost a conference
or hearing.
It’s a service provided by the fair Work Commission to assist the parties to settle
the issues in dispute.
And it’s a very successful program whereby over 80% of matters do settle at that time.
You will find a separate video about how conciliations work on our website.
If you choose not to have a conciliation or the one you have fails to produce a settlement
‐ and you don’t formally discontinue your application ‐ your case will automatically
go to a conference or hearing.
If you wish to be represented by a lawyer or a paid agent they’ll need the permission
of the Commission to appear at the conference or hearing.
The Fair Hearing practice note on our website provides more information about this.
You can find more details about hearings and conferences in the video about them on our
website.
Finally, the employer might raise a jurisdictional objection in their response.
This means they are arguing that the Commission does not have the power to hear the case.
You should watch the separate video about jurisdictional objections if this happens
to you – it explains what you will need to know.
Or follow the links on the page next to this video for more information.