Fair Work Series (4)
This installment involves claims for Unfair Dismissal, Adverse Action Involving Dismissal or Unlawful termination.
6. Unfair Dismissal Claim
The orders attached to your application for Unfair Dismissal before the Fair Work Commission would generally include:
(i) Order for reinstatement
(ii) Order for continuity
(iii) Order to restore lost pay
(iv) Order for compensation equivalent to twenty-six (26) weeks remuneration
(i) Order for reinstatement
The Act s.391
An order sought pursuant to this provision means that the employer must reappoint you to the position in which you were employed immediately before the dismissal occurred per The Act s.391(1)(a).
OR;
An order to reappoint you to another position on terms and conditions no less favorable than those immediately before being dismissed from the employer per The Act s.391(1)(b).
The Fair Work Commission when considering an order for reinstatement is not required to specify a particular position and the employer may choose the position in order to comply with the order.
The Fair Work Commission must consider in the circumstances if reinstatement is an appropriate order to me before considering any additional remedy. However if the Commission is satisfied that reinstatement would be an appropriate order then it will consider an order for compensation per The Act s.390(3).
(ii) Order for continuity
The Act s.391(2)
An order sought pursuant to this provision means that the employer must maintain continuity of your employment in addition to reinstatement.
The commission in the exercise of discretion may grant this order which is separate and distinct from the reinstatement order.
Therefore, you may receive an order for reinstatement made with or without an order for continuity of employment.
If the commission elect to grant an order for continuity it will preserve entitlements related to tenure per Kenley v JB Hi Fi, Print S7235 (AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) at para. 34.
(iii) Order to restore lost pay
The Act s.391(3) and s.391(4)
An order sought pursuant to this provision means that the employer may be subject to payment of lost wages in addition to reinstatement of your employment.
The Act s.391(3) and s.391(4)
There are number of factors the Fair Work Commission must consider prior to making an order under this provision.
- Any income received by you between the date of dismissal and making an order; and
- Any income received by you between the date of the order and the actual date of reinstatement; and
- The Fair Work Commission must also consider the conduct that led to the dismissal given this is a discretionary order
- For the purpose of determining what constitutes remuneration the commission will not consider Centrelink benefit payments for the purpose of calculating the amount of lost pay.
- However, with respect to point (4) above consideration must be given to disclosure and possible repayment of benefits received from Centrelink. This relationship between you and Centrelink will not be a consideration for the commission in determining the amount of the order for lost pay.
- However, the approach taken in point (5) above is contrast with any Workers Compensation benefits received as these amounts may be deducted from any order made under this provision.
- Any misconduct that led to the dismissal may reduce the amount ordered.
The above factors are not exhaustive and the commission may use its discretion to make orders it believes are appropriate in the circumstances.
(iv) Compensation equivalent to twenty-six(26) weeks’ remuneration
The Act s.391(3) and s.392
An order sought pursuant to this provision means that the employer may be subject to compensation payment in the event that the commission deems reinstatement as an inappropriate remedy per The Act s.390(3)(a).
In addition; the Fair Work Commission will only order compensation when it considers such an order appropriate per The Act s.390(3)(b).
An order for compensation is designed to compensate you for being unfairly dismissed in lieu of reinstatement for losses attributed to the unfair dismissal.
It should be noted that an order for compensation handed down by the Fair Work Commission is not designed to cover shock, distress, humiliation or other analogous injury occasioned against you by the employer in the context of the manner in which you were dismissed per The Act s.392(4).
The Fair Work Commission must consider the following criteria in determining the amount of compensation to be ordered per The Act s.392(2).
- The effect of an order on the viability of the employer’s enterprise; and
- The tenure of your relationship with the employer; and
- The remuneration that you would have received or would be likely to have received but for the dismissal; and
- Your efforts (if any) to mitigate against the loss you have suffered because of the dismissal; and
- The amount you have earned from employment between the date of dismissal and the date an order for compensation is made by The Fair Work Commission; and
- The amount you could be expected to earn from employment between the date of order for compensation and actual date compensation is received; and
- Any matter that The Fair Work Commission considers relevant per The Act s.390(2).
In conclusion no individual consideration is to be regarded as paramount as regard must be given to each consideration.
You must apply all the considerations to both, if appropriate, the allegations made against you, your comprehensive response and the approach taken by the employer.
You must refer to the process that has been followed and any lack of clarity in terms of policies, compliance or awareness of what policy and process will apply in the circumstances.
7. Adverse Action involving dismissal
Claims undertaken under this section in accordance with The Act s.361 reverses the burden of proof by placing an onus upon your employer to demonstrate that they can disprove the allegation. However, in practice companies who terminate employees for an illegitimate purpose are very aware of this provision and will empower another member of theirmanagement team to make the final decision and as an unrelated party it is much harder to prove undue influence on the part of the employer.
The steps involved in filing an application for dismissal involving adverse action (general protections) are as follows;
(i) Complete and file an application FORM 8 The Act s.365
(ii) The employer will file their response to the application
(iii) The Fair Work Commission will hold a conference between the parties with a view to obtaining a resolution, however in the event that an agreement between the parties is not achieved then a certificate will be issued by the Fair Work Commission.
(iv) At this stage if BOTH parties agree the Fair Work Commission can arbitrate the dispute.
(v) If the parties do not agree for the Fair Work Commission to arbitrate the dispute then a certificate will be issued within 7days.
(vi) An application to the Federal Court of Australia must be made within 14 days of receiving the certificate from the Fair Work Commission.
(vii) The next step will be to draft and file a claim and statement of claim in the Federal Court of Australia.
(viii) For information and forms required to file and manage a claim within The jurisdiction of The Federal Court of Australia then click here.
(ix) If your claim is successful then The Federal Court of Australia can make a number of orders which include:
- issue a pecuniary penalty; and
- make an order for reinstatement; and
- make an order awarding compensation for loss; and
- grant an injunction or interim injunction; and
- the discretion to make an order as to costs, albeit this is not guaranteed and several factors will be considered by the court prior to making any such award.
Unlike an application for Unfair Dismissal the hearing will be in the Federal Court of Australia and will require legal representation to draft and settle your claim and statement of claim and to manage your matter to conclusion.
You should obtain independent legal advice including a costs disclosure prior to proceeding with litigation as the costs involved can be significant.
8. Unlawful Termination
The Act requires that an application under Unlawful Termination must ONLY be made in circumstance where you cannot make an application for dismissal involving adverse action (general protections).
Therefore you can make an application if you are NOT a national system employee and your dismissal was undertaken in contravention of The Act s.772. A definition of National System Employer can be found here. Some of the employees who are eligible to make an application under this provision include:
(i) State Government employees in New South Wales, Queensland, Western Australia, South Australia and Tasmania
(ii) Local Government employees in New South Wales, Queensland and South Australia
- Individuals employed by non-constitutional corporations in Western Australia, which include sole traders, partnerships and trusts
In addition, employees who are covered by the National System and who are ineligible to make an application for dismissal involving adverse action (general protections) MAY be able to make an application under this provision.
Pursuant to The Act s.772 which stipulates among other things that an employer must NOT terminate an employee’s employment for one or more of the following unlawful reasons:
(i) temporary absence from work due to illness or injury.
(ii) trade union membership or participation in trade union activities outside working hours.
(iii) trade union membership and participation during working hours with the employer’s consent.
(iv) non-membership of a trade union.
(v) seeking office as, or acting or having acted in the capacity of, an employee representative.
(vi) the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
(vii) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(viii) absence from work during maternity leave or other parental leave.
(ix) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
As covered in the eligibility sectionThe Act s.382 prescribes that the high-income threshold will limit eligibility for protection from unfair dismissal and if an employee is not covered by a modern award or enterprise agreement then the annual earnings must be less than the current threshold which is $153,600.00.
The steps involved in filing an application for dismissal involving adverse action (general protections) are as follows;
(i) Complete and file an application FORM 9 The Act s.772
(ii) The employer will file their response to the application
(iii) The Fair Work Commission will hold a conference between the parties with a view to obtaining a resolution, however in the event that an agreement between the parties is not achieved then a certificate will be issued by the Fair Work Commission.
(iv) At this stage if BOTH parties agree the Fair Work Commission can arbitrate the dispute.
(v) If the parties do not agree for the Fair Work Commission to arbitrate the dispute then a certificate will be issued within 7days.
(vi) An application to the Federal Court of Australia must be made within 14 days of receiving the certificate from the Fair Work Commission.
(vii) The next step will be to draft and file a claim and statement of claim in the Federal Court of Australia.
(viii) For information and forms required to file and manage a claim within The jurisdiction of The Federal Court of Australia then click here.
(ix) Should the employee decide to not file a claim and statement of claim in The Federal Court of Australia then a notice of discontinuance can be filed (Form50).
(ix) If your claim is successful then The Federal Court of Australia can make a number of orders under The Act s.545 which include:
- issue a pecuniary penalty; and
- make an order for economic loss; and
- make an order for non-economic loss to include hurt and humiliation; and
- grant an injunction or interim injunction; and
- the discretion to make an order as to costs, albeit this is not guaranteed and several factors will be considered by the court prior to making any such award; and
- ANY order the court considers appropriate.
Unlike an application for Unfair Dismissal the hearing will be in the Federal Court of Australia and will require legal representation to draft and settle your claim and statement of claim and to manage your matter to conclusion.
You should obtain independent legal advice including a costs disclosure prior to proceeding as with any litigation the costs involved can be significant.
Our team are ready to assist you with any employment law matters.
