Unfair dismissal information for Employers
What is unfair dismissal?
Unfair dismissal occurs when an employee is dismissed in a harsh, unjust or unreasonable manner. If the employee’s dismissal was a genuine redundancy or in compliance with the Small Business Fair Dismissal Code (which applies where the employer has less than 15 employees), the dismissal would not be unfair.
Is your employee eligible to make an unfair dismissal claim?
An employee can make an unfair dismissal claim if they have been dismissed, are covered by the National Workplace Relations System and meet eligibility criteria, including the minimum employment period. In Victoria, all employees are covered by the National Workplace Relations System.
If you are a small business employer, the employee must have been employed for a minimum of 12 months prior to their dismissal to make an unfair dismissal claim. If you are a non-small business employer, the employee must have been employed for a minimum of 6 months prior to their dismissal.
How long do employees have to apply to the Fair Work Commission?
An employee has 21 days to apply to the Fair Work Commission in relation to an unfair dismissal. This 21-day period commences the day after the dismissal. You then have 7 days to respond to the application. You must send the response to both the employee and the Commission.
What does it mean if I am contacted by the Fair Work Commission about unfair dismissal?
If you have received notice from the Commission about an application for unfair dismissal, it means:
- An employee believes they have been unfairly dismissed by you or your company.
- The employee has started legal action against you by making an application to the Commission. The employee is seeking a remedy for the alleged unfair dismissal.
- You have the right to, and should, respond to the application. Your response would outline why you object to the application and your version of events. The Commission will use the information in your response to either progress or close the application. If you receive an application, we recommend that you contact our office for advice about preparing a response.
- You or your company will then be given the details for a conciliation conference where a conciliator will try to resolve the application.
- If the application cannot be resolved at the conciliation conference, the matter will go to a hearing before a Member of the Commission.
Please note the above is intended to be commentary and general information. Commentary and general information should not be relied upon and substituted as legal advice. Formal legal advice should always be obtained.
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