The Possible Claims available after employment termination

KEY TAKE-OUTS:

• The Fair Work Commission deals with disputes in the workplace between employers and employees.  
• Strict criteria apply when lodging certain applications, it is important to be mindful of what is required when filling out the forms.
• There are strict deadlines to make certain applications to the Fair Work Commission. It is important to keep these in mind when submitting any application as extensions of time are only granted in exceptional circumstances. 
• The Fair Work Commission holds conciliations as the first step as an opportunity for employees and employers to see if they can resolve the dispute between them prior to a formal hearing or arbitration. Conciliations are less formal and allow all parties to negotiate. If a matter cannot resolve at the conciliation stage it will then proceed to a formal hearing/arbitration where the parties will need to submit evidence and submissions. 

---

What is the Fair Work Commission?

The Fair Work Commission (“FWC”) is Australia’s workplace Tribunal. The FWC deals with disputes in the workplace when employers and employees cannot resolve the problem themselves. 

One of the main functions of the FWC is dealing with disputes relating to the dismissal of employees.

Potential claims an employee can make when they are terminated

When your employment is terminated by your employer, you may be eligible for one of the 3 options in the Fair Work Act 2009 (Cth): 

1. Unfair Dismissal;
2. General protections;
3. Unlawful termination.

You can only apply for one option and you must meet certain criteria to make the application. We discuss the applications in detail below and the process once an application is filed. 

What is considered an unfair dismissal?

Unfair dismissal refers to an employment dispute when an employee has been dismissed from their job in a harsh, unjust or unreasonable manner. There are certain criteria that need to be met when applying for an unfair dismissal application with the FWC. The criteria include:

• An application for unfair dismissal needs to be lodged with the commission within twenty-one (21) days from the date of dismissal. The application is for employees who have lost their job, you cannot apply for this type of application before your employer dismisses you. 
• To make an unfair dismissal application with the FWC you must be part of the national employment system. You are not part of the national employment system if you are a sole trader, contractor, or work through an agency or some government employee including NSW public sector and local government employees. 
• Generally, employees need to be employed for a minimum employment period of at least six (6) months before they can apply for an unfair dismissal application. 
• Employees working for a small business are required to be employed for at least twelve (12) months before they can apply for an unfair dismissal application. Employees need to be under the high-income threshold unless covered by a modern award. As of 1 July 2022, the threshold is $162,000. 

You may also consider making an unfair dismissal application if your employer made you redundant and you do not think it was a genuine redundancy or if you can prove that you were forced to resign. 

If you can successfully prove that your termination was harsh, unjust or unreasonable, the FWC has powers to make orders such as that you be reinstated to your employment or be paid compensation (capped at 6 months’ salary). 

What is a general protection dismissal?

General protection laws protect workplace rights which protect most people from:

• Harmful (adverse) action
• Coercion
• Undue influence or pressure
• Misrepresentation

Most general protection disputes deal with the adverse action. In these cases, the applicant must show their eligibility to apply and provide evidence that someone has taken adverse action against them for a prohibited reason.

To be eligible to apply for general protections applications: 

• An application needs to be lodged with the commission within twenty-one (21) days from the date of dismissal if you are making the application for general protections involving a dismissal.  
• To make general protections application with the FWC you must be part of the national employment system. You are not part of the national employment system if you are a sole trader, contractor, or work through an agency or some government employee including NSW public sector and local government employees. 

What role does the Fair Work Commission have in relation to employee dismissal? Discover the three types of claims a terminated employee can make with the FWC, the specific process that needs to be followed and the potential remedies available.An adverse action can include being dismissed, demoted or overlooked for a promotion. 

This type of claim is for employees who believe they have been adversely treated for a prohibited reason under the Fair Work Act 2009 (Cth) such as:

• Exercising a workplace right
• Discrimination
• Sham contracting
• Temporary absence from work due to illness or injury
• Freedom of association (such as being a part of a union).

The FWC has two types of general protection applications, depending on whether an employee has been dismissed or not. 

A general protection claim generally requires a higher threshold of proof as you need to show what was in the mind of the decision maker at the time of taking adverse action against you. 

If you can successfully prove that you have been treated adversely for a prohibited reason, the FWC has powers to make orders such as that you be reinstated to your employment, you receive an apology or be paid compensation (uncapped, however, factors are taken into account when awarding compensation).

What constitutes an unlawful termination?

A small number of employees are eligible to make an application for unlawful termination with the FWC. To make this type of application you must not be eligible to apply for unfair dismissal or general protections application and must have been dismissed from your job. 

What is the difference between unlawful termination, unfair dismissal, and general protections? Unlawful termination application covers laws in the Fair Work Act 2009 (Cth) for groups such as:

• State government employees in New South Wales, Queensland, South Australia, Tasmania and Western Australia
• Local Government employees in New South Wales, Queensland and South Australia
• People employed in Western Australia by non-constitutional corporations. 

Unlawful termination is similar to a general protection application and is when an employer ends an employee’s employment, and the reason is or includes a reason that is prohibited by the Fair Work Act 2009 (Cth). 

An application needs to be lodged with the commission within twenty-one (21) days from the date of dismissal. 

How to lodge an application with the FWC

If you believe you may have a claim with respect to your employment, it is important to take note of any deadlines before lodging an application. The FWC only allows exceptions in extreme circumstances, so it is important to be aware of the deadlines.

When lodging an application, the form can be found on the FWC website. It is important to make sure you complete the correct form for the type of claim you are making. If an incorrect form is lodged, this can significantly delay the application process and possibly even disqualify you from making a claim. Coutts employment law team is able to assist you in this process and completing the correct application form. 

What happens once an FWC Application is Lodged?

When an application is lodged with the FWC, the FWC will as a first step list the matter for a conciliation conference. If the employer and employee agree to attend the conciliation conference then it will take place by telephone. It is important to remember that conciliation is not a formal hearing. A conciliator will lead the discussion, however, they are unable to provide legal advice and will not hear evidence or make decisions during this process.

The conciliation usually involves the applicant and the respondent and their representatives (if one is engaged) negotiating in an attempt to resolve the matter between the parties.

An FWC conciliation follows the following process:

1. The conciliator will state the rules of the conciliation and advises all parties of their obligations to keep matters confidential. 
2. Each party will briefly summarise their case, they will also have the opportunity to ask each other questions and make further comments. 
3. The conciliator will then separate each party into separate sessions where the parties begin to negotiate. Each party will advise the conciliator of their offer, and the conciliator will go back and forth until an agreement is reached (if one can be reached).

If no agreement is reached, the conciliation ends.

Coutts is able to assist you in the conciliation process and attend the conciliation process on your behalf by seeking leave from the FWC to be involved in the matter. 

Outcomes of an FWC conciliation

If an agreement is reached, the FWC will note the agreement on the record. The parties will also usually formalise the agreement in a deed of settlement, which is a contract between the parties confirming the details and obligations of the agreement. 

If an agreement is not reached, the case will proceed to a formal hearing or arbitration in front of a Member unless the employee decides to terminate their application. The FWC will issue the parties a hearing notice which will also include directions for the filing of evidence and submissions. 

Often the Member assigned to the case will also seek a further conference prior to the formal hearing or arbitration to determine the positions of the parties and whether there is any possibility of settlement. If at this stage the parties can resolve the matter between them, the formal hearing/arbitration will be cancelled and the matter will be finalised. 

If the matter cannot be resolved at this point, the parties will be required to follow the directions made by the Member including the filing of evidence and submissions and attend the final hearing/arbitration where the Member will hear from both parties and decide the outcome of the case. 

It is important to understand the eligibility and criteria when submitting any sort of employment claim to make sure you make the right application and complete the application form correctly. At Coutts, our friendly Employment Law team have ample experience in drafting applications in the FWC, assisting clients in preparation for conciliations as well as appearing at conciliation to provide support and legal expertise and preparing for and attending final hearings/arbitrations if the matter cannot be resolved before that time.

---

ABOUT MELISSA CARE: