Employers may be surprised to find out they
are involved in an unfair dismissal case. Initial responses can include confusion ‐ because
you feel you’ve done nothing wrong, and bewilderment ‐ because you don’t know
how this started or what you should do next. This video gives employers the information
they need to respond to an unfair dismissal claim.
The Fair Work Commission does not investigate unfair dismissal allegations or commence prosecutions
against employers. We only deal with dismissal matters when a
dismissed employee asks it to by lodging an application form.
We forward that application form on to you, the employer. This may be the first time you
become aware that you are a party to a dispute. The registry handle the unfair dismissal matters
and case manage them until they go to arbitration. So they’re responsible for listing the matter,
contacting the parties and liaising and providing information as to the processes and procedures
of the tribunal. You can’t afford to ignore this matter,
as it is the start of a formal legal process that won’t just ‘go away’.
Even if you believe you have done nothing wrong you still have to be involved in the
process and present your arguments. It can become quite a serious if that do ignore
it in that the matter will be listed for an arbitration hearing will issue directions
for the formal filing of materials – statements, witness statements.
The first step is to complete a response form which you obtain from the Fair Work Commission’s
website or by contacting us. This form requires you to complete all of
your contact details and dates the employee started and finished work with you.
You also need to explain your reasons for dismissing the employee and your response
to their arguments about why they think the dismissal was unfair.
It’s important to follow the instructions on the form, answer every question and remember
to sign it. You have to send your response to two places.
First, you send a copy directly to the former employee using the contact details on their
application. The second copy is sent back to the Fair Work
Commission so it can go on your file. The paperwork is processed by a section of
the Commission called the Registry. The case mangers there prepare the files but
they cannot help you with your specific case. They have to be impartial, so all of registry
officers are obligated by law to be impartial which means they don’t act for the respondent
or the applicant. Staff in the Commission are not allowed to
give you legal advice. So the staff can’t answer questions like: How can I get out of
this? Have I done something wrong? Does the employee have a case? What do I need to say
in my response? Will I win if I go to a hearing? What sort of payout am I facing? You need
to get your own professional advice. In some states the Commission provides a duty
lawyer scheme to 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 response form.
The representative does not have to a lawyer. It could be a support person from an industry
body, an advocate or even a family member. Another key question you have to consider
in your response is whether you have any objections to the application.
You can’t object just because you think the dismissal was fair. Objecting means you
are saying the Commission does not have the power to deal with the case.
The Commission can only judge matters that fall within its jurisdiction, which is governed
by three sets of rules. First, the employee must be covered by national
unfair dismissal laws. Second, the employee must meet definitions
to be an employee who has been dismissed. And third, they need to meet a number of eligibility
criteria – including length of employment. Finally, an employee can’t make multiple
applications using different sections of the Act.
We have a special video about Jurisdictional objections. It is well worth your time to
watch this as it explains all of those jurisdiction rules in detail.
You can also follow the link on the page next to this video for more information.
So – what happens next? If you raised a jurisdictional objection it
will be listed for a conference or hearing to determine if the case can proceed. If it
can’t the employee’s application will be dismissed. Sometimes this is a separate
conference or hearing and sometimes its is dealt with at the same time as the merits
of the unfair dismissal claim are dealt with. Meanwhile, the Commission will also contact
you to arrange a conciliation. It’s often a good way to informally resolve the matter
without the time and cost of 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. There is 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 your case will go to a conference or hearing.
If you wish to represented by a lawyer or 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