I though it might good to share some learnings based on a few Fair Work Commission (FWC) cases I’ve been involved in recently. I’ve helped people on both sides of the table – employees and employers – so some of my observations will apply to only one group or the other.
These are very general thoughts and are definitely not to be taken as any sort of HR or legal advice. If you require advice on an unfair dismissal case (whether you’re an employer or an employee) I may be able to offer assistance as a paid agent.
- The FWC cannot hear cases where the dismissal was a genuine redundancy.
- If you’ve been retrenched you will need to demonstrate how your termination was a non-genuine redundancy. Here are some things to consider:
- If you’re covered by a Modern Award or an Enterprise Agreement you should have been consulted about the redundancy
- Even if you’re not covered your employer has to investigate redeployment possibilities for you
- As an employer, you might want to suggest your employee have a support person with them at the termination meeting
- Redundancy should be a last resort and not entered into as a disciplinary process to get rid of non-performing staff
- If you’ve been underpaid by your employer on termination (eg they didn’t pay you severance pay that you were entitled to, they miscalculated your notice period, didn’t pay out your annual leave) then you should take your claim to the Fair Work Ombudsman (FWO) first. It will advise you on your best course of action which may include taking your employer to court. The exact legal remedy will vary from state to state.
- The FWC does not correct underpayments. It awards a monetary amount if it finds that you were unfairly dismissed. The maximum the FWC can award is 6 months of your salary with a current cap of $74,350.
- The FWC cannot award you damages for hurt, humiliation or distress brought about by your dismissal.
- The first meeting you have will almost certainly be a phone hook-up with a FWC conciliator. This person’s role is to settle the matter before it goes to a formal hearing.
- The fee for lodging an unfair dismissal claim is currently $73.20. In some cases, this fee may be refunded to you.
- The employee’s application is made on a Form F2. You have 21 calendar days from the day after your termination to lodge your F2.
- The employee is called the applicant and the employer the respondent who completes a Form F3 in response to a claim.