It is crucial for employers to obtain specialist advice prior to termination

According to the Fair Work Commission’s (FWC) quarterly reports from the period of January 2017 to September 2017, there were 10,480 unfair dismissal applications lodged with the FWC Australia wide – that’s a staggering 1,165 lodged per month (approximately) or 292 per week.

As Applications are not merit tested when lodged with the FWC this means that the risk of an unfair dismissal application following termination is a real one for employers, provided that the employee:

  • Has lodged the application with 21 days of the dismissal;
  • Is covered by the National Workplace Relations System;
  • Has completed the minimum employment period of one year for small business; or six months for other business; and/or
  • The employee has not reached the high income threshold which is currently $142,000 for 2017-2018 financial year.

We have certainly seen some valid unfair dismissal claims lodged by employees, but experience has also shown that sometimes the reason behind an employee lodging an unfair dismissal claim is not necessarily that they thought the dismissal was unfair, but that they are now without employment and have bills to pay.

Accordingly, unfair dismissals have become a regular occurrence for employers and can be an intimidating, time consuming and stressful process.

The unfair dismissal process is generally as follows:

  • The employee lodged the application with the FWC;
  • The FWC will provide the application to the employer with the response document to be completed, lodged with the FWC and served on the applicant by the employer;
  • The FWC will list the matter for a conciliation and provide confirmation of this to all parties;
  • A conciliation will take place with both parties and a FWC conciliator;
  • If the matter is resolved at the conciliation Terms of Settlement are signed and the matter comes to an end;
  • If the matter is not resolved at the conciliation it is listed for arbitration (that is, a hearing where a binding decision is made by the FWC.

Whether a termination is unfair will depend on each circumstance and therefore it is crucial for employers to obtain specialist advice in this regard prior to termination.

By TCCI Senior Workplace Relations Consultant Abbey George

Employers can do this through the TCCI by contacting the Helpline on 1300 765 123 or the TCCI on 1300 59 122 or workplacerelations@tcci.com.au