Unfair Dismissal-Guide 1

Unfair DismissalGuide 1
Published 1 Jul y 2013 www.fwc.gov.au 1/4

Overview of the unfair dismissal laws
What is unfair dismissal?
An unfair dismissal occurs where an employee makes an unfair dismissal remedy application
and the Fair Work Commission finds that:
the employee was dismissed, and
the dismissal was harsh, unjust or unreasonable, and
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.
A small business is a business that employs fewer than 15 employees.
Who can make an unfair dismissal remedy application?
To make an unfair dismissal remedy application an employee must be covered by the national
unfair dismissal laws and eligible to make an application.
If you were dismissed on or before 31 December 2012, the application must be lodged within
14 days after the dismissal takes effect. If you were dismissed on or after 1 January 2013, the
application must be lodged within 21 days after the dismissal takes effect.
Who is covered by the unfair dismissal laws?
Only employees covered by the national workplace relations system are covered by the unfair
dismissal laws. (Other employees may have access to remedies under State legislation). The national
workplace relations system covers:
in Victoria, the Northern Territory and the Australian Capital Territoryall employees
in New South Wales, Queensland and South Australiaemployees of private enterprise
in Tasmaniaemployees of private enterprise and local government
in Western Australiaemployees of constitutional corporations (including Pty Ltd
companies), this may include some local governments
employees of the Commonwealth or a Commonwealth authority
waterside employees, maritime employees and flight crew officers in interstate or overseas
trade or commerce.

Who is not covered by the unfair dismissal laws?
The laws do not cover:
in New South Wales, Queensland and South Australiaemployees of local and state
governments
in Tasmaniaemployees of state government
in Western Australiaemployees of state government and non-constitutional corporations
(including sole traders, partnerships and Trusts)
contractors
employees who resign and were not forced to do so by the conduct of their employer
employees employed under a contract of employment for a specified period of time, a
specified task, or the duration of a specified season who are dismissed at the end of the
period, task or season
trainees whose employment was for a specified period of time and who are dismissed at the
end of the training arrangement
employees who have been demoted but have had no significant reduction in their
remuneration or duties and who remain employed by the employer who demoted them.
Who is eligible to make an unfair dismissal remedy application?
An employee is eligible to make an application for unfair dismissal remedy if they have
completed the minimum employment period of:
one yearwhere the employer employs fewer than 15 employees (a small business
employer)
six monthswhere the employer employs 15 or more employees.
In addition, if the employee earns more than $129,300 per year, at least one of the following
must apply:
employee is covered by an award
employee is covered by an enterprise agreement.
What is harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work
Commission must take into account:
whether or not there was a valid reason for the dismissal related to the employee's capacity
or conduct (including its effect on the safety and welfare of other employees), and
whether or not the employee was notified of that reason, and
whether or not the employee was given an opportunity to respond to any reason related to
the capacity or conduct of the employee, and
any unreasonable refusal by the employer to allow the employee to have a support person
present to assist at any discussions relating to dismissal, and

if the dismissal related to unsatisfactory performance by the employee, whether or not the
employee had been warned about that unsatisfactory performance before the dismissal, and
the degree to which the size of the employer's enterprise would be likely to impact on the
procedures followed in effecting the dismissal, and
the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in effecting
the dismissal, and
any other matters that the Fair Work Commission considers relevant.
What is a genuine redundancy?
An employees dismissal was a genuine redundancy if:
the employee's employer no longer required the employee's job to be performed by anyone
because of changes in the operational requirements of the employer's enterprise, and
the employer has complied with any obligation in a modern award or enterprise agreement
that applied to the employment to consult about the redundancy.
An employees dismissal was not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the employee to be redeployed within:
the employer's enterprise
the enterprise of an associated entity of the employer.
What is the Small Business Fair Dismissal Code?
The Small Business Fair Dismissal Code (declared by legislation) is for small business
employers to follow when dismissing an employee in order to make the dismissal fair. It
provides that:
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer
believes on reasonable grounds that the employee's misconduct is sufficiently serious to justify
immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of
occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient,
though not essential, that an allegation of theft, fraud or violence be reported to the police. Of
course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is
at risk of being dismissed. The reason must be a valid reason based on the employee's conduct
or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she is at risk of being
dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the
warning and give the employee a reasonable chance to rectify the problem, having regard to the
employee's response. Rectifying the problem might involve the employer providing additional
training and ensuring the employee knows the employer's job expectations.

Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee
can have another person present to assist; however, the other person cannot be a lawyer acting
in a professional capacity.
A small business employer will be required to provide evidence of compliance with the code if
the employee makes a claim for unfair dismissal to the Fair Work Commission, including
evidence that a warning has been given (except in cases of summary dismissal). Evidence may
include a completed checklist, copies of written warning(s), a statement of termination or signed
witness statements.
To download a copy of the Small Business Fair Dismissal Code and a related checklist, go to
www.fairwork.gov.au/termination/small-business-fair-dismissal-code.
Help is available
If you need further information or help, email inquiries@fwc.gov.au or visit the Fair Work
Commission website at www.fwc.gov.au. You should note that legal advice is not available from
the Fair Work Commission.
You can also refer to the full set of unfair dismissal guides available at
www.fwc.gov.au/index.cfm?pagename=dismissals:
1. Overview of the unfair dismissal laws
2. Flowchart on the process
3. Making an application
4. Responding to an application
5. Objecting to an application
6. Preparing for conciliation
7. Preparing for a conference or hearing
8. Frequently asked questions
9. Glossary of common terms

Commonwealth of Australia 2013
This guide is not intended to be comprehensive, but is designed to help employers and employees gain an understanding of the
Fair Work Commission and its work. The Fair Work Commission does not provide legal advice.

Published 23 May 2013 www.fwc.gov.au 1/2
Flowchart on the process
This guide outlines the Fair Work Commissions unfair dismissal process and related guides and
forms.
The process Guides Forms

Help is available


Making an application
Employees who believe they have been dismissed unfairly may apply to the Fair Work
Commission for a remedy.
Who can appl y?
To apply for unfair dismissal, you must be:
a national workplace relations system employee and
protected from unfair dismissal.
To be eligible to apply, you must:
have completed a minimum employment period of at least 6 months (or 12 months if your
employer is a small business employer who employs fewer than 15 employees, including
you, at the time of your dismissal)
at the time of dismissal, be in at least one of the following categories:
covered by a modern award or pre-modern award instrument, such as a federal award, a
state reference transitional award or a notional agreement preserving state award
covered by an enterprise agreement or an agreement-based transitional instrument, or
earn less than $129,300 per year not including the 9% superannuation guarantee
contributions.
Applications within time
If you were dismissed on or before 31 December 2012, your application must be lodged
within 14 days after the dismissal took effect. If you were dismissed on or after 1 January
2013, your application must be lodged within 21 days after the dismissal took effect. The Fair
Work Commission may extend the time period only if a Fair Work Commission member decides
after a formal conference or hearing that there were exceptional circumstances for not
lodging the application on time.
For information on formal conferences and hearings, refer to Guide 7Preparing for a
conference or hearing, available from the Fair Work Commission website at:
www.fwc.gov.au/index.cfm?pagename=dismissals.
What application form is used?
Applications for an unfair dismissal remedy must be made on a Form F2Application for unfair
dismissal remedy. This form can be obtained from any Fair Work Commission office public
counter or downloaded from the website at www.fwc.gov.au.

Completing the Form F2Application for unfair dismissal remedy
Complete ALL sections
The employee must complete all sections on the form and should attach copies of any relevant
documents such as a letter of dismissal. Particular care should be given to make sure the
correct employer is named on the application. It is usually possible to check this on a payslip,
group certificate or employment separation certificate.
Signing
The application Form F2 must be signed.
Interpreter
An employee may have a family member or friend assist them at conciliation or request an
interpreter through the Fair Work Commission. Refer to question 4 of Form F2Application for
unfair dismissal remedy.
Disability
If you require special arrangements to accommodate a disability (e.g. hearing impairment), you
should advise the Fair Work Commission when you lodge your application.
Application fee
Employees are required to pay an application fee (currently $65.50). This fee may be waived on
the grounds that its payment would cause serious hardship.
If you wish to apply for a waiver, a completed Waiver of application fee form should
accompany the Form F2 application, and not be submitted separately. A copy of the form can
be obtained from any Fair Work Commission office public counter or downloaded from the
website at www.fwc.gov.au.
The fee may also be refunded if the matter is discontinued prior to any formal conference or
hearing being held before a Fair Work Commission member.
How to lodge an application
Applications can be lodged by email, electronically (eFiling) via the Fair Work Commission
website, express post, or in person at any Fair Work Commission office. Fair Work Commission
contact details appear on the website.
If you cannot lodge by any of the above means, then an application can be made over the
phone on 1300 799 675. However, any incomplete application cannot proceed until a complete
and signed application is received, along with either payment or a waiver of application.
Checklist
Use this checklist as a guide to help you check that you are eligible to apply, have filled in the
application correctly and paid the fee, or applied for a waiver of application fee.
CHECK
Were you employed by a national workplace relations system employer?
NOTE: If you are a contractor or your employer was not a national workplace relations
system employer (e.g. a state public sector employee and employers other than
trading corporations in WA) you may be excluded from bringing an unfair dismissal
case with the Fair Work Commission.

Have you completed the minimum employment period?
Are you covered by a modern award or pre-modern award or an enterprise agreement?
Are you earning less than $129,300 per year not including the 9% superannuation
guarantee contributions?
Have you lodged your application within the time required after the dismissal took effect?
If not, have you provided an explanation of the exceptional circumstances that prevented
you from lodging on time?
Have you included your fee for the application?
If experiencing financial difficulty, have you completed and lodged the fee waiver
application?
What happens next?
The Fair Work Commission sends a copy of the Form F2 application to the employer.
The Fair Work Commission sends the employee and the employer a written notification of
the date and time of conciliation.
The employer is required to complete and file a response (Form F3Employers response to
application for unfair dismissal remedy) and also send a copy to the employee.
Conciliation will usually be held approximately three weeks after the application is made. See
Guide 6Preparing for conciliation, available from the Fair Work Commission website at
www.fwc.gov.au/index.cfm?pagename=dismissals, for further information.
Help is available


Responding to an application
Employers who receive an unfair dismissal application (Form F2Application for unfair
dismissal remedy) are required to lodge a response (Form F3Employers response to
application for unfair dismissal remedy) with the Fair Work Commission (the Commission.
Notifying employer of an application
When a completed application for unfair dismissal remedy has been lodged with the
Commission the following occurs:
the Commission sends a copy of the Form F2 to the employer
the Commission sends the employee and the employer a written notification of the date and
time of conciliation.
Which form does the employer complete?
The employer must respond using Form F3Employers response to application for unfair
dismissal remedy.
The form can be obtained from any Fair Work Commission office public counter or downloaded
from the Commission website at www.fwc.gov.au.
Completing the Form F3 response
Complete ALL sections
The employer MUST complete all sections on the Form F3 and attach any supporting
documents (e.g. letter of dismissal, written warnings).
Lodging and serving
The employer MUST lodge the response (Form F3) with the Commission within 7 days of being
served with the Form F2 application (or in accordance with any instruction given by the Fair
Work Commission).
This can be done by email, electronically (eFiling) from the Commissions website, by express
post, or in person at any Fair Work Commission office. The Commissions contact details are on
the Commissions website.
The employer also must send a copy of the response (Form F3Employers response to
application for unfair dismissal remedy), including all supporting documents, to the employee
within 7 days by:
sending the document by express post (keeping the senders copy of the identifying
barcode)
sending the document by registered post to the address specified for the employee
(applicant) in the Form F2 application, or
emailing the document to the employee (applicant) using the email address specified in the
Form F2 application.
Objecting to an application
An employer can object to an application based on jurisdictional or eligibility grounds.
For further information, see Guide 5Objecting to an application, available from the
Commissions website at www.fwc.gov.au/index.cfm?pagename=dismissals.
How do I prepare for the next step?
Keep a note of the conciliation date, which was sent to you by the Commission at the same time
as the application.
For information on preparing for conciliation, see Guide 6Preparing for conciliation, available
from the Commissions website at www.fwc.gov.au/index.cfm?pagename=dismissals.
Fees
There are no fees for lodging a response to an application for unfair dismissal remedy.
Do I need to be represented at conciliation?
Employers do not need to be represented at conciliation, but are able to have a support person,
a representative or a lawyer if they prefer.
Checklist
Have you:
completed all sections of the Form F3 response to application for unfair dismissal
remedy?
signed the response?
any objections to the Form F2 application? If so, have you completed question 4 on the
Form F3 and read the information in Guide 5Objecting to an application?
lodged the response with the Fair Work Commission?
sent a copy of the response to the employee?
read Guide 6Preparing for conciliation?
Help is available
If you need further information or help, email inquiries@fwc.gov.au or visit the Commissions
website at www.fwc.gov.au. You should note that legal advice is not available from the Fair
Work Commission.


Objecting to an application
Employers can object to an application for unfair dismissal remedy in certain circumstances.
The objections can only be determined by a formal decision of the Fair Work Commission.
A member of the Fair Work Commission must determine:
whether the unfair dismissal application is within the jurisdiction of the Fair Work
Commission, and
whether the employee is protected from unfair dismissal and therefore eligible to apply for a
remedy.
What is a jurisdictional objection and when is an employee eligible to
make an unfair dismissal claim?
A member of the Fair Work Commission can only decide unfair dismissal applications that are
within its jurisdiction. Only certain employees are protected from unfair dismissal and are
eligible to apply for an unfair dismissal remedy (see Guide 3Making an application).
The Fair Work Commission does not have jurisdiction to deal with an application if:
the employee was not dismissed or the employee resigned voluntarily
the employee dismissed had not been working for the employer for at least six months, or at
least one year if the employer employs fewer than 15 employees
the employee is not a national workplace relations system employee
the employee dismissed was earning more than the high income threshold (currently
$129,300) and was not covered by an award or enterprise agreement.
An employee is not eligible to apply if (one or more may apply):
if they were dismissed on or before 31 December 2012, the application has been lodged
more than 14 days after the dismissal took effect, unless there are exceptional
circumstances for not lodging the application on time
if they were dismissed on or after 1 J anuary 2013, the application has been lodged more
than 21 days after the dismissal took effect, unless there are exceptional circumstances for
not lodging the application on time
the application is made against an entity who is not the employer
the applicant was not an employee (e.g. the applicant was a contractor)
it is a case of genuine redundancy
the employee was a casual employee but was not regularly and systematically employed
and had no reasonable expectation of continuing employment

the employee was demoted, but not substantially
the employer is a small business and complied with the Small Business Fair Dismissal Code
the employees employment was for a specified period, task, seasonal contract or
traineeship arrangement, and ended at the end of that period
the unfair dismissal claim is frivolous or vexatious or without reasonable cause
the application for a remedy has no reasonable prospect of success.
How can an employer raise an objection?
An employer may raise one or more objections to an application by:
noting their objections in their Form F3Employers response to an unfair dismissal
application (at question 4), or
completing a Form F4Objection to application for unfair dismissal remedy, at any time
before the Fair Work Commission has determined the application (Form F2). The Form F4
can be downloaded from the Commissions website at www.fwc.gov.au. You should notify
the Fair Work Commission of your objection as soon as possible.
Does conciliation still go ahead if an objection has been raised?
Yes, the Fair Work Commission will usually proceed with conciliation unless there is a request
by the employer to have the objection heard prior to the conciliation.
Is it beneficial to proceed with conciliation if there are objections raised?
Yes, conciliation is still valuable even if objections have been raised, for the following reasons:
the employee may only become aware of the objection when they receive a copy of the
employers response (Form F3Employers response to application for unfair dismissal
remedy)
often the parties disagree about whether the Fair Work Commission has jurisdiction to
determine the application or whether an employee is protected from unfair dismissal, and the
conciliation conference will provide the first opportunity for any objections to be discussed
the conciliation may assist the parties to understand the law as it relates to the objection.
What if the matter is not resolved at conciliation?
If the matter is not resolved at conciliation and the employer still objects to the application, then
the objection will be heard by a member of the Fair Work Commission. Some objections may be
determined in a separate conference or hearing, others will be considered at the same time as
the substantive matters of the dismissal claim.
How are objections to applications for unfair dismissal remedy
determined?
An objection is determined by a member of the Fair Work Commission hearing evidence in a
formal proceeding, which is generally held in a courtroom.
Some objections are determined at the same time as the substantive matters of the dismissal
claim and some objections are heard by a member in a separate conference or hearing.

Objections determined with the substantive matters
Objections determined at the same time as the substantive matters of the dismissal claim are:
whether or not the employee was dismissed
whether or not the dismissal was a genuine redundancy
whether or not the Small Business Fair Dismissal Code was complied with.
Likel y outcomes where determined with the substantive matters
If a member of the Fair Work Commission decides that the employers objection is valid then the
employees application will be dismissed prior to the substantive matters being heard. If the
objection is not valid the matter will proceed on the substantive matters at the same time.
Objections determined at a separate conference or hearing
Objections determined at a separate conference or hearing are:
whether or not an extension of time to lodge the application should be granted
whether or not the applicant is an employee, or whether or not the entity named is actually
the employer
whether or not the minimum period of employment has been served
whether or not the applicants earnings exceed the high income threshold
whether or not the dismissal was at the end of a specified period of employment, specified
task or season
whether or not the dismissal was at the end of a training arrangement
whether or not the demotion was significant
whether or not the application is frivolous and vexatious and without reasonable cause
whether or not the application has no reasonable prospect of success.
Likel y outcomes where determined at a separate conference or hearing
If a member of the Fair Work Commission decides that the employers objection is valid then the
employees application will be dismissed. If the objection is not valid the matter will proceed to a
separate conference or hearing to assess the merits of the application and decide whether the
dismissal was fair.
Preparing for an objections or jurisdictional hearing
For information on preparing for a conference or hearing, refer to Guide 7Preparing for a
conference or hearing, available from the Commissions website at

Help is available
Work Commission.


Preparing for conciliation
Employees and employers (the parties) involved in unfair dismissal disputes have the
opportunity to reach a resolution with help from a Fair Work Commission conciliator.
What is conciliation?
Conciliation is a voluntary and informal method of resolving an unfair dismissal application. An
independent conciliator can help the parties explore options for a resolution without the need for
a formal conference or hearing.
Most unfair dismissal cases are resolved in this way, with an agreement made between the
parties at this informal stage.
Benefits of conciliation
Conciliation:
provides an informal, quick and flexible method of resolving an unfair dismissal application
is quicker and less costly than a formal conference or hearing, and parties who are able to
reach a resolution of their dispute often feel more satisfied and more in control of their
situation
avoids the need for a formal conference or hearing before a member of the Fair Work
Commission (the Commission), who will decide if the dismissal is fair or unfair if the matter
does not resolve at conciliation.
Who are the conciliators?
Conciliators are Fair Work Commission staff who are trained and experienced in conciliation,
workplace relations and unfair dismissal law.
What is their role?
Conciliators:
actively help the parties to reach a resolution
can lead discussions and provide guidance
may explore the issues
may challenge views expressed, explore alternatives and comment on possible outcomes
do not represent or advocate for either employees or employers
do not give legal advice or make decisions.

What is the process leading up to conciliation?
Step 1 The Commission receives an application (Form F2Application for unfair
dismissal remedy)
Step 2 The Commission sends a copy of the application to the employer
Step 3 The Commission sends the employee and employer a written notice with the date
and time of their conciliation
Step 4 The employer is asked to complete and file a response (Form F3Employers
response to application for unfair dismissal remedy) and also send a copy to the
employee
Step 5 Conciliation takes place (usually by telephone) generally approximately three
weeks after the application is made.
On the day of conciliation
The conciliation is usually held by telephone and takes approximately 90 minutes.
A conciliator will call the employee and the employer on a conference call.
The conciliator will explain the process.
The conciliation process
The conciliator will ask the parties to briefly summarise why the dismissal was unfair/fair.
The conciliator will hold an open discussion between the parties.
The conciliator will hold private discussions with each party to discuss ways in which the
matter can be resolved.
The conciliator will discuss proposals for resolution.
If the parties reach an in-principle agreement, the conciliator can prepare a written
agreement for the parties to sign.
If the parties do not reach an agreement the conciliator will explain the next steps in the
process.
Preparing for conciliation checklist
Conciliation works best if the parties prepare well. Use the following checklist as your guide:
CHECK
write down the key issues and possible solutions
be flexible and prepared to negotiate
listen and consider other points of view
focus on the issues, not on the emotions
have a pen, paper and relevant documents ready (e.g. payslips, contracts of
employment)
arrange a private place without interruptions to take the call
use a hands-free fully charged phone or mobile phone if possible
be realistic about the likely outcome
request an interpreter beforehand, if needed
request disability assistance beforehand, if needed.
Frequentl y asked questions
What if I am not availabl e on the date of the concil i ation?
If you are not available on the date of the conciliation you may request an adjournment (i.e. a
request for a change of time or date). Adjournment requests must be made in writing to the
Commission and will only be granted if the Commission considers there are substantial
grounds. Any requests should be made as early as possible before the conciliation date.
Requests on the basis that a particular representative is unavailable on the conciliation date are
not usually considered sufficient grounds or reasons for an adjournment.
Do I need representation?
Employees or employers (the parties) do not need to be represented at conciliation, but may
have a support person or a representative (including a lawyer) with them if they prefer. No
formal permission from the Commission needs to be granted to be represented during the
conciliation. However, if the matter does not resolve at conciliation and proceeds to a formal
conference or hearing, formal permission to be represented by a lawyer or paid agent does
need to be granted by a Commission member.
What is the likel y outcome of concili ation?
In most matters, the parties are able to reach a mutually satisfactory agreement which resolves
the unfair dismissal claim and the application is discontinued by agreement.
What if there is no agreement?
Most conciliations result in agreement, but if there is no agreement the matter will progress to a
formal conference or hearing. A Commission member will then conduct a formal conference or
hearing and make a binding decision.
conference or hearing, available from the website at
Help is available
Work Commission.

This guide is not intended to be comprehensive, but is designed to assist in gaining an understanding of the Fair Work
Commission and its work. The Commission does not provide legal advice.

Published 12 September 2013 www.fwc.gov.au 1/5
Preparing for a conference or hearing
Applications for unfair dismissal remedy that do not settle at conciliation, or are not withdrawn,
proceed to a conference or hearing before a member of the Fair Work Commission (the
Commission). The following information is designed to assist employees and employers (the
parties) prepare for an unfair dismissal conference or hearing.
What is a conference or hearing?
A conference is a proceeding which is conducted in private, resulting in a decision.
A Commission member takes account of particular circumstances of the parties in conducting
the arbitration by conference. The preparation for conferences differs from the preparation for a
hearing.
A hearing is a proceeding which is generally conducted in public, resulting in a decision, in
circumstances where the member regards this as the most appropriate way to conduct the
arbitration. Hearings are more formal than conferences and the preparation required for the
hearing reflects this.
A member of the Commission can make decisions on the following unfair dismissal matters:
applications for an extension of time for the lodgment of an unfair dismissal application
employer objections to an unfair dismissal remedy application, and
the merits of an unfair dismissal remedy application.
What happens at a hearing?
At a hearing each party will have an opportunity to present their case by:
providing witness evidence under oath or affirmation
providing relevant documents (evidence) to support their case
challenging or cross-examining the other partys evidence.
A member of the Commission, after hearing and considering all of the evidence and
submissions, will provide a written, legally binding decision either in favour of the employee
(applicant) or in favour of the employer (respondent).
How will I be notified of the hearing?
The Commission will notify the parties in writing of the time, date and location of the hearing.
This is called a Notice of Listing. The notice will also provide directions to the parties.
What are directions?
Directions are instructions given to the parties. They are usually about the timeframe in which
written documents must be provided to the Commission. The directions usually include a
requirement that you lodge with the Commission and serve on the other party (or their
representative) the following:
an outline of submissions
witness statements for any witnesses you intend calling, including yourself
other documents (evidence) you wish to rely on.
The documents must be provided within the timeframes outlined in the directions.
Outline of submissions
An outline of submissions is a document written by you or your representative that sets out why
the Commission should find in your favour. Your outline should include the case number, and
address the relevant sections in the Fair Work Act 2009 that deal with unfair dismissal claims.
Witness statements
Witness statements should be prepared for each person, including yourself. A witness is
someone who has something relevant to say about the dismissal.
Evidence
You will need to provide all the documents and other material that you are going to rely on in
support of your case before the hearing starts.
What documents do I need to send to the other party?
You must send to the other party (or their representative) any document that you are required to
serve on them.
Generally, you must also send to the other party (or their representative) a copy of any
correspondence or document you send to the Commission. If you do not do so, the Commission
may forward a copy to the other party (or their representative).
If you are concerned about correspondence or a document being forwarded by the Commission
to the other party or their representative (for example, if it contains personal medical details or
other confidential information) you should contact the Commission to discuss your options
before sending it to the Commission.
Who will see my documents?
Generally, you should assume that the other party (and their representative) will see any
documents you file with the Commission and any correspondence or documents that you send
to the Commission. Members and staff of the Commission who need access to your file in order
to process your application will also see your correspondence and documents.
See further the question above What documents do I need to send to the other party?
Do my witnesses have to attend court?
A person who provides a witness statement needs to be available at the hearing to give sworn
verbal evidence and be available to be cross-examined by the other party.
What if I need an interpreter?
Parties can request an interpreter before the day of the conference or hearing at no cost. Any
request should be made well in advance of the hearing and can be made to any of the contact
numbers or email addresses provided on the Notice of Listing.
Do I have to be represented by someone?
There is no requirement for you to be represented by another person when you appear in
proceedings at the Fair Work Commission. You will need the permission of the Commission
member dealing with your case if you wish to be represented by a lawyer or paid agent, unless
that person is:
one of your employees or officers (if you are an employer)
employed by a union or employer organisation, a peak union or peak employer body.
If you decide to represent yourself in proceedings it will be easier for you if you are well
prepared. You may consider bringing one or more individuals with you for support. There is
generally no objection to you doing so although in private conferences you should be prepared
to tell the Commission member why you would like the presence of such individuals.
Outcomes
A number of outcomes are possible as a result of the conference or hearing. These include:
if the dismissal is found to be fair, the application will be dismissed
if the dismissal is found to be unfair, the Commission member may order a remedy.
Remedies available are:
reinstatement of the employee, and/or
payment of an amount of compensation for lost wages (not exceeding 26 weeks pay).
However, any amount ordered may be reduced for a number of reasons, such as:
any misconduct that contributed to the dismissal
length of the employees service with the employer
any other income that was earned since the dismissal took effect.
In some cases, even though a dismissal is found to be unfair, no remedy will be awarded.
Publishing of decisions
All decisions concerning unfair dismissal cases are published on the Commissions website.
More information
Service of documents
For information on serving documents, refer to Guide 8Frequently asked questions, available
from the Commissions website at www.fwc.gov.au/index.cfm?pagename=dismissals.
Requesting an adjournment
An application for an adjournment of a conference or hearing must be made in writing to the
Commission and must provide full reasons for seeking the adjournment. Adjournment
applications are only granted on substantial grounds.
Finding your way to a hearing or conference
Before you attend a conference or hearing at the Commission you should check the hearings
and conferences list.
The list identifies all of the cases for a particular day, together with the Commission members
dealing with them, the times of the hearings and conferences, and their location details (floor
and room numbers).
The list is published in capital city newspapers and on the Fair Work Commission website
(on the Hearings & conferences page) each day. Printed copies of the list can also be found at
the Commissions public counters, near the courtrooms or, in some of the Commissions
premises, on the building's ground floor. If your hearing or conference is in a regional
courthouse you may have to ask for information at the inquiry counter.
Tips for conferences & hearings
Make sure you arrive early for the conference or hearing because proceedings begin on
time.
Notify Commission staff when you arrive by approaching them in the hearing or conference
room.
If you are delayed it is important that you make contact with the appropriate Commission
staff before the hearing is due to start.
Switch off your mobile phone or other electronic devices in the conference or hearing room.
Address the member of the Commission by his or her title (e.g. Deputy President or
Commissioner).
In a hearing, stand when you are addressed by the member of the Commission or to
question a witness.
Bring enough copies of documents so everyone involved can have a copy (e.g. three copies
one for you, one for the other party, and one for the member).
Help is available
If you need further information or help, send an email using our online inquiry form at
www.fwc.gov.au. You should note that legal advice is not available from the Fair Work
Commission.


Frequentl y asked questions
About unfair dismissal
Who is covered by the unfair dismissal laws?
Only employees covered by the national workplace relations system are covered by the unfair
dismissal laws. (Other employees may have access to remedies under State legislation). The
national workplace relations system covers:
in Victoria, the Northern Territory and the Australian Capital Territoryall employees
in New South Wales, Queensland and South Australiaemployees of private enterprise
in Tasmaniaemployees of private enterprise and local government
in Western Australiaemployees of constitutional corporations (including Pty Ltd
companies), this may include some local governments
employees of the Commonwealth or a Commonwealth authority
waterside employees, maritime employees and flight crew officers in interstate or overseas
trade or commerce.
Who is not covered by the unfair dismissal laws?
The laws do not cover:
in New South Wales, Queensland and South Australiaemployees of local and state
governments
in Tasmaniaemployees of state government
in Western Australiaemployees of state government and non-constitutional corporations
(including sole traders, partnerships and Trusts)
contractors
employees who resign and were not forced to do so by the conduct of their employer
employees employed under a contract of employment for a specified period of time, a
specified task, or the duration of a specified season who are dismissed at the end of the
period, task or season
trainees whose employment was for a specified period of time and who are dismissed at the
end of the training arrangement
employees who have been demoted but have had no significant reduction in their
remuneration or duties and who remain employed by the employer who demoted them.

What is harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work
Commission (the Commission) must take into account:
whether or not there was a valid reason for the dismissal related to the employee's capacity
or conduct (including its effect on the safety and welfare of other employees), and
whether or not the employee was notified of that reason, and
whether or not the employee was given an opportunity to respond to any reason related to
the capacity or conduct of the employee, and
any unreasonable refusal by the employer to allow the employee to have a support person
present to assist at any discussions relating to dismissal, and
if the dismissal related to unsatisfactory performance by the employee, whether or not the
employee had been warned about that unsatisfactory performance before the dismissal, and
the degree to which the size of the employer's enterprise would be likely to impact on the
procedures followed in effecting the dismissal, and
the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in effecting
the dismissal, and
any other matters that the Commission considers relevant.
What is a genuine redundancy?
An employee's dismissal was a genuine redundancy if:
the employee's employer no longer required the employee's job to be performed by anyone
because of changes in the operational requirements of the employer's enterprise, and
An employee's dismissal was not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the employee to be redeployed within:
the employer's enterprise
the enterprise of an associated entity of the employer.
What is a small business?
A small business is a business that employs fewer than 15 employees.
What is the Small Business Fair Dismissal Code?
The Small Business Fair Dismissal Code (declared by legislation) is for small business
employers to follow when dismissing an employee in order to make the dismissal fair. It
provides that:
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer
believes on reasonable grounds that the employee's misconduct is sufficiently serious to justify
immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of
occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient,
though not essential, that an allegation of theft, fraud or violence be reported to the police. Of
course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is
at risk of being dismissed. The reason must be a valid reason based on the employee's conduct
or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she is at risk of being
dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the
warning and give the employee a reasonable chance to rectify the problem, having regard to the
employee's response. Rectifying the problem might involve the employer providing additional
training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee
can have another person present to assist; however, the other person cannot be a lawyer acting
in a professional capacity.

A small business employer will be required to provide evidence of compliance with the code if
the employee makes a claim for unfair dismissal to the Commission, including evidence that a
warning has been given (except in cases of summary dismissal). Evidence may include a
completed checklist, copies of written warning(s), a statement of termination or signed witness
statements.

To download a copy of the Small Business Fair Dismissal Code and a related checklist, go to
www.fairwork.gov.au/termination/small-business-fair-dismissal-code.
What are the remedies for unfair dismissal?
If the Commission is satisfied an employee was unfairly dismissed then it may order:
reinstatement of the employee, together with continuity of service and lost remuneration, or
payment of compensation for lost wages to the employee (if satisfied that reinstatement is
inappropriate).
About applications & responses
How long do I have to make an application?
If you were dismissed on or after 1 J anuary 2013, your application must be lodged within 21 days
after the dismissal took effect.
The Commission may accept a late application, but only in exceptional circumstances.
Which application form do I use?
Use Form F2Application for unfair dismissal remedy, available on the Commissions website
at www.fwc.gov.au/index.cfm?pagename=resourceforms.
The form is also available from any Commission State & Territory office.
Is there an application fee?
Employees are required to pay an application fee (currently $65.50). This fee may be waived on
the grounds that its payment would cause serious hardship.
Any application for waiver of the fee should accompany the Form F2 application, and not be
submitted separately. A copy of the 'Waiver of application fee' form is available from the
Resources box on this page, and from the Commissions State & Territory offices.
Note: The fee may also be refunded if the matter is discontinued prior to any formal conference
or hearing being held before a Commission member.
How do I lodge an application?
An application form can be lodged by email, facsimile, post or in person at one of the
Commissions State & Territory offices, or electronically via the website's eFiling facility.
If you cannot lodge by any of the above means, then an application can be made over the
phone on 1300 799 675.
However, any incomplete application cannot proceed until a complete and signed application is
received, along with either payment or a waiver of application.
Which form does the employer complete?
An employer must respond using Form F3Employer's response to application for unfair
dismissal remedy, available on the website at
www.fwc.gov.au/index.cfm?pagename=resourceforms.
The form is also available from each of the Commissions State & Territory offices.
How do I serve a document?
Serving a document means sending a copy of the document to the other party or their
representative. You can serve a document by:
sending the document by express post to the other party or representative in the
proceedings (and keeping the sender's copy of the identifying barcode), or
sending the document by registered post to the other party or representative in the
proceedings, or
sending the document by email to the email address of the other party or representative in
the proceedings.
What documents do I need to send to the other party?
You must send to the other party (or their representative) any document that you are required to
serve on them.
Generally, you must also send to the other party (or their representative) a copy of any
correspondence or document you send to the Commission. If you do not do so, the Commission
may forward a copy to the other party (or their representative).
If you are concerned about correspondence or a document being forwarded by the Commission
to the other party or their representative (for example, if it contains personal medical details or
other confidential information) you should contact the Commission to discuss your options
before sending it to the Commission.
Who will see my documents?
Generally, you should assume that the other party (and their representative) will see any
documents you file with the Commission and any correspondence or documents that you send
to the Commission. Members and staff of the Commission who need access to your file in order
to process your application will also see your correspondence and documents.
See further the question above What documents do I need to send to the other party? and the
question below How is my privacy protected?
How can the Fair Work Commission assist me?
Commission staff can provide you with information over the telephone or at one of our offices.
The Commission cannot provide legal advice or advice on how best to run a case. However, the
Commission can give information on:
processes in the Commission
how to make an application to the Commission and how to respond to an application that is
made against you
how to fill out forms
where to find useful documents such as legislation and decisions, and
other organisations which may be able to assist you.
Visit the Commissions website www.fwc.gov.au for a range of information that can assist in
preparing for a hearing or conference including:
the Fair Work Act 2009, the Fair Work Regulations 2009 and the Fair Work Australia Rules
2010 and associated forms
decisions and orders
contact details
links to other useful websites.
About conciliation, conferences & hearings
What is conciliation?
Conciliation is a voluntary and informal method of resolving an unfair dismissal application. An
independent conciliator can help the parties explore options for a resolution without the need for
a formal conference or hearing.
Most unfair dismissal cases are resolved in this way, with an agreement made between the
parties at this informal stage.
Who are the conciliators?
Conciliators are Commission staff who are trained and experienced in conciliation, workplace
relations and unfair dismissal law.
What happens at conciliation?
On the day of conciliation:
The conciliation is usually held by telephone and takes approximately 90 minutes.
A conciliator will call the employee and the employer on a conference call.
The conciliator will explain the process, and then:
ask the parties to briefly summarise why the dismissal was unfair/fair
holds an open discussion between the parties
holds private discussions with each party to discuss ways in which the matter can be
resolved
discusses proposals for resolution.
If the parties reach an in-principle agreement, the conciliator can prepare a written
agreement for the parties to sign.
If the parties do not reach an agreement, the conciliator will explain the next steps in the
process.
Conciliators:
actively help the parties to reach a resolution
can lead discussions and provide guidance
may explore the issues
may challenge views expressed, explore alternatives and comment on possible outcomes
do not represent or advocate for either employees or employers
do not give legal advice or make decisions.
What if I am not available on the date of the conciliation?
If you are not available on the date of the conciliation you may request an adjournment (i.e. a
request for a change of time or date). Adjournment requests must be made in writing to the
Commission and will only be granted if the Commission considers there are substantial
grounds. Any requests should be made as early as possible before the conciliation date.
Requests on the basis that a particular representative is unavailable on the conciliation date are
not usually considered sufficient grounds reasons for an adjournment.
How do I prepare for conciliation?
Conciliation works best if the parties prepare well. Use the following list as your guide:
write down the key issues and possible solutions
be flexible and prepared to negotiate
listen and consider other points of view
focus on the issues, not on the emotions
have a pen, paper and relevant documents ready (e.g. payslips, contracts of employment)
arrange a private place without interruptions to take the call
use a hands-free fully charged phone or mobile phone if possible
be realistic about the likely outcome
request an interpreter beforehand, if needed
request disability assistance beforehand, if needed.
What if there is no agreement after conciliation?
Most conciliations result in agreement, but if there is no agreement the matter will progress to a
formal conference or hearing. A Commission member will then conduct a formal conference or
hearing and make a binding decision.
What is a conference or hearing?
A conference is a proceeding which is conducted in private, resulting in a decision. A
Commission member takes account of particular circumstances of the parties in conducting the
arbitration by conference. The preparation for conferences differs from the preparation for a
hearing.
A hearing is a proceeding which is generally conducted in public, resulting in a decision, in
circumstances where the member regards this as the most appropriate way to conduct the
arbitration. Hearings are more formal than conferences and the preparation required for the
hearing reflects this.
How will I be notified of the hearing?
The Commission will notify the parties in writing of the time, date and location of the hearing.
This is called a Notice of Listing. The notice will also provide directions (i.e. instructions) to the
parties.
What happens at a hearing?
At a hearing each party will have an opportunity to present their case by:
providing witness evidence under oath or affirmation
providing relevant documents (evidence) to support their case
challenging or cross-examining the other party's evidence.
A Commission member, after hearing and considering all of the evidence and submissions, will
provide a written, legally binding decision either in favour of the employee (applicant) or in
favour of the employer (respondent).
Do I have to be represented by someone?
Conciliations
Employees or employers (the parties) do not need to be represented at conciliation, but may
have a support person or a representative (including a lawyer) with them if they prefer. No
formal permission from the Commission needs to be granted to be represented during the
conciliation.
Conferences & hearings
There is no requirement for you to be represented by another person when you appear in
proceedings at the Commission. You will need the permission of the Commission member
dealing with your case if you wish to be represented by a lawyer or paid agent, unless that
person is:
one of your employees or officers (if you are an employer)
employed by a union or employer organisation, a peak union or peak employer body.
If you decide to represent yourself in proceedings it will be easier for you if you are well
prepared. You may consider bringing one or more individuals with you for support. There is
generally no objection to you doing so although in private conferences you should be prepared
to tell the Commission member why you would like the presence of such individuals.
Do my witnesses have to attend court?
Yes, a person who provides a witness statement needs to be available at the hearing to give
sworn verbal evidence and be available to be cross-examined by the other party.
Who pays my costs?
An employee and employer involved in an unfair dismissal case before the Commission must
generally meet their own costs.
The Commission may order an employee or employer to bear pay some or all of the costs of the
other party if the unfair dismissal application or response to it:
was frivolous, vexatious or made without reasonable cause, or
had no reasonable prospect of success.
In certain circumstances, the Commission may also order costs against a lawyer or paid agent
representing a party in an unfair dismissal case.
What if I need an interpreter?
Parties can request an interpreter before the day of the conference or hearing at no cost. Any
request should be made well in advance of the hearing and can be made to any of the contact
numbers or email addresses provided on the Notice of Listing.
How do I find my hearing or conference?
Before you attend a conference or hearing at the Commission you should check the hearings
and conferences list.
The list identifies all of the cases for a particular day, together with the Commission members
dealing with them, the times of the hearings and conferences and the location details (e.g. the
floor and the room number).
The list is published in capital city newspapers and on the Commission website (on the About
hearings & conferences page) each day. Printed copies of the list can also be found at the
Commissions public counters, near the courtrooms or, in some of the Commissions premises,
on the building's ground floor. If your hearing or conference is in a regional courthouse you may
have to ask for information at the inquiry counter.
Tips about hearings and conferences
make sure you arrive early for the conference or hearing because proceedings begin on time
notify Commission staff when you arrive by approaching them in the hearing or conference
room
if you are delayed it is important that you make contact with the appropriate Commission
staff before the hearing is due to start
switch off your mobile phone or other electronic devices in the conference or hearing room
address the Commission member by his or her title (e.g. Deputy President or Commissioner)
in a hearing, stand when you are addressed by the Commission member or to question a
witness
bring enough copies of documents so everyone involved can have a copy (e.g. three copies
one for you, one for the other party, and one for the Commission member).
How is my pri vacy protected?
In general, unfair dismissal case files and discussions in private conferences are confidential.
Details will usually only be disclosed to the parties directly involved or their representatives,
unless a person who has been granted leave by the General Manager to inspect the case file,
or the Commission is required by law to disclose the details.
The Commission is required to publish its decisions, and does so by reproducing them on its
website.
See also, the question above Who will see my documents?
Help is available
If you need further information or help, send an email using our online inquiry form at
www.fwc.gov.au. You should note that legal advice is not available from the Commission.

Commission and its work. The Fair Work Commission does not provide legal advice.

Glossary of common terms
This glossary describes some common terms used throughout the unfair dismissal process.
Adjournment
To suspend proceedings to another time or place, or to end them.
Applicant
A party who initiates a proceeding before the Fair Work Commission.
Conciliation
A voluntary and informal method of resolving an unfair dismissal application. An independent
conciliator can help the parties explore options for a resolution without the need for a formal
conference or hearing.
Conciliators
Fair Work Commission staff who are trained and experienced in conciliation, workplace
relations and unfair dismissal law.
Conference
A private proceeding conducted by a Fair Work Commission member (held if the unfair
dismissal application is not resolved or withdrawn at or before the conciliation).
Directions
Instructions given by the Fair Work Commission to the parties involved in a matter.
Evidence
Information which the Fair Work Commission can consider when deciding the outcome of a
case.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Available
at: http://www.fwc.gov.au/index.cfm?pagename=legislationfwact
Fair Work Commission
The independent, national workplace relations tribunal established under the Fair Work Act
2009. Established as Fair Work Australia in 2009, it was renamed the Fair Work Commission on
1 J anuary 2013 following enactment of the Fair Work Amendment Act 2012.
Hearing
A public proceeding conducted before a Fair Work Commission member (held if the unfair
dismissal application is not resolved or withdrawn at or before the conciliation).
Jurisdiction
The authority to hear certain types of cases. For example, the Fair Work Commission has
authority (jurisdiction) to hear unfair dismissal cases.
Matter
A case or legal proceeding before the Fair Work Commission.
Member
A member of the Fair Work Commission.
Outcome
The end result of the unfair dismissal application.
Outline of submissions
A document setting out the key elements of a case.
Party
Applicant (usually an employee) or respondent (usually an employer) to a matter before the Fair
Work Commission.
Private enterprise
A business owned and operated by private individuals for profit, instead of by a government or
its agencies.
Redundancy
A persons dismissal was a case of genuine redundancy if:
the persons employer no longer required the persons job to be performed by anyone
because of changes in the operational requirements of the employers enterprise, and
Remedy
A process to obtain penalties and compensation for certain breaches of the Fair Work Act 2009.
Respondent
A party to a proceeding before the Fair Work Commission initiated by someone else.
Serve/service
A requirement to send a copy of a document (and all supporting documents) to another party or
their representative, usually within a specified number of days.
Small business
A business that employs fewer than 15 employees.
Small Business Fair Dismissal Code
A code declared by the Minister for Education, Employment and Workplace Relations for small
businesses to follow when dismissing an employee in order to make the dismissal fair.
Witness statement
Written information statement provided by a witness to support your case.

Help is available
Commissions website at www.fwc.gov.au. You should note that legal advice is not available
from the Fair Work Commission.


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