Fair Work Series (2)
What do you do when your employment has been terminated? How do you know if you are covered under the National Fair Work Act or State based employment legislation?
The Fair Work Act 2009(“The Act”) offers a range of options and remedies to assist you provided your employer is covered by this legislation.
Our four-part series covering The Act to support your application for:
(i) Unfair Dismissal
(ii) Adverse Action Involving Dismissal
(iii) Unlawful Termination
This is a four-part series of articles dealing with:
(i) Eligibility & Time Limits for applications
(ii) Selecting the most appropriate application & Resolving application errors
(iii) Drafting and filing an application
(iv) Unfair Dismissal, Adverse Action involving dismissal and Unlawful termination claims
Our second installment in this series involves understanding which is the most appropriate application under The Act and resolving errors with your application.
3. Selecting the most appropriate application
(i) Unfair Dismissal The Act s.394
(ii) Adverse Action Involving Dismissal The Act s.365
(iii) Unlawful Termination The Act s.772
(i) Unfair Dismissal
In order to select the correct application (Form F2) you must first review the relevant section of The Act s.394
Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Pursuant to The Act s.285 you may have been unfairly dismissed if the Fair Work Commission is satisfied that your dismissal was harsh, unjust or unreasonable and it was not a case of genuine redundancy.
Therefore, it will be important to detail the circumstances leading up to and including the dismissal to confirm that you are eligible to file a claim under this provision.
It is also important to ensure that your income does not exceed the high-income threshold and that your employer is covered by the National scheme as you must also consider the State employment laws in determining whether the Fair Work Commission can hear your application.
(ii) Adverse Action Involving Dismissal
In order to select the correct application (Form F8) you must first review the relevant section of The Act s.365
Application for the FWC to deal with a dismissal dispute If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Under The Act s.340 defines that an employer must NOT take adverse action against an employee and is prohibited from dismissing or undertaking adverse action against their employee for the exercise a workplace right.
Further The Act s.342 you may have been subject to Adverse Action if you have been dismissed, your employer injures you in your employment, alters your position or seeks to prejudice you or discriminates between you and other employees.
It will be important to detail the circumstances leading up to and including the dismissal to confirm that you are eligible to file a claim under this provision.
The high-income threshold does not apply to applications made under Adverse Action Involving Dismissal. It is important to establish whether your employer is covered by the National scheme as you must also consider the State employment laws in determining whether the Fair Work Commission can hear your application.
(iii) Unlawful Termination
In order to select the correct application (Form F9) you must first review the relevant section of The Act ss.723 and 772.
The Act s.723 defines that you cannot make an application for unlawful termination if you are entitled to make a general protections application for adverse action involving dismissal.
The Act s.772 An employee should not be terminated for a temporary absence from work because of illness or injury, trade union participation or membership in activities outside work hours or with approval during work hours, non-membership of A trade union, acting as an employee representative, filing a complaint against your employer, for reason of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
It will be important to detail the circumstances leading up to and including the dismissal to confirm that you are eligible to file a claim under this provision.
Unlike an application for Unfair Dismissal the high-income threshold does not apply to applications made under Unlawful Termination. It is important to establish whether your employer is covered by the National scheme as you must also consider the State employment laws in determining whether the Fair Work Commission can hear your application.
4. Resolving errors with your application
The Fair Work Commission allows applications to be amended under The Act. Under s.586 of The Act the Fair Work Commission allows an applicant to amend an application on terms deemed appropriate or to waive an irregularity in the application. The Fair Work Commission regularly grants leave to amend applications provided no injustice is suffered by the other party to the application. Therefore, it is not uncommon to request changes that may include amending your employer’s company name or details, errors in spelling of your name.
However, you cannot use this section to request resolution of major errors or to amend an application for dismissal involving adverse action (general protections) to an application for unfair dismissal.
If you are in a situation where you have filed the wrong application with The Fair Work Commission under The Act s.588 allows you to withdraw the application and once withdrawn you may then complete and submit the correct application. The Act s.725 prohibits filing an application for dismissal involving adverse action (general protections) unless the unfair dismissal application has been withdrawn or has failed on the basis of judicial reasoning.
In conclusion if you have simple or administrative errors contained within your application the commission will generally provide leave to amend, however if you have an error of substance as it relates to the type of application which has been submitted then you must withdraw and submit the correct application.
If you are outside of the prescribed time limits when an error of substance has been identified you would need to make application for an extension of time pursuant to The Act s.366(1) and will take the following into account when making a decision:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The employer would most likely object to an application made under this provision and compelling evidence would be needed for the commission to consider in order to grant an application.
Our team are ready to assist you with any employment law matters.
