Unfair Dismissal FAQs

The Fair Work Commission is the federal independent workplace relations tribunal. This means that they have jurisdiction and authority over workplace issues all around Australia, in all states and territories. This gives them a very broad power and also means that to be efficient, they conduct most of their work remotely and not in-person, such as their initial conciliation conferences for most disputes being conducted through tele-conferences.

The Fair Work Commission has a range of functions, one of which that is most relevant to us, is to judge and determine workplace complaints and disputes between relevant parties. The Fair Work Commission also takes responsibility for a wide range of other workplace functions and regulations, including ensuring that minimum national employment standards are met in all Australian workplaces.

The specific functions of the Fair Work Commission include:

• Judging disputes and complaints in the workplace
• Maintaining the minimum employment standards including wages and employee rights
• Reviewing and changing awards and agreements
• Various other functions related to the workplace.

The Fair Work Commission also has a free call service to provide basic and general information on the Fair Work Act 2009, but they cannot provide legal advice.

Therefore, it is more appropriate for employees, employers, contractors and any other relevant parties that believe they have workplace liabilities or responsibilities, to call the Fair Work Ombudsman for free advice and information. The Fair Work Ombudsman also conducts investigations. For most of our clients, we recommend that employees who believe that they have been underpaid go to the Fair Work Ombudsman to enquire into what they should have been paid and request an investigation if they have indeed been underpaid.

The Fair Work Commission website has the online forms which you can download and then lodge with the Commission yourself.

However, the Fair Work Act 2009 (Cth) allows for a legal or paid representative to lodge the application on your behalf and represent you at the conciliation. This is the service that we provide at A Whole New Approach. We do everything for you – starting from drafting your entire application to a Federal Court standard, making the lodgement fee with the Commission on your behalf and then finally, being your advocate during the conciliations so that you don’t have to do it yourself.

We recommend getting a representative for these proceedings, whether it be by us or not, as it portrays that you are serious about pursuing your application with the Commission further if the matter does not settle at the initial conciliation. This puts you in the best position against your employer to give you the advantage in receiving a positive outcome or settlement.

The simple answer – no. Many clients call us and think the Fair Work Commission is a Commonwealth court, however, this is not true.

The Fair Work Commission’s way of resolving disputes is a little bit different to a court system. When you lodge an application for a remedy of an unfair dismissal or a General Protections claim, the Fair Work Commission will schedule a conciliation in an attempt to come to a settlement between both parties. The conciliator has no influence or authority over the conciliation and is only present to facilitate an agreement or compromise between the two parties.

If the initial conciliation does not settle, the different applications have different subsequent processes. For an unfair dismissal remedy, if the client wishes to proceed with their dispute they will progress to a more ‘court-like’ hearing in which a Deputy President or Senior Member of the Fair Work Commission will preside over the case and determine the outcome and possible remedies. However, if a General Protections claim does not settle at the initial conciliation conference, then it will proceed to a Federal Court for judgment.

There are a wide range of workplace issues and disputes that the Fair Work Commission can try to resolve. Every workplace situation is unique, and you might need to make a calculated decision on which kind of claim to pursue. Different applications have different remedies, formal requirements and difficulty in making out the case. There are many things to consider when deciding what kind of application might resolve your case best, and this is why you should call us at 1800 333 666 for a free consultation on which type of claim that we think is best suited to your situation and whether we can provide a representative service for you.

The main types of claims that we deal with include unfair dismissals, General Protections claims which involves you exercising a workplace right and then your employer engaging in adverse action against you in response to you exercising your workplace right, discrimination, sexual harassment and more.

There is no legal definition of a ‘fair workplace’. Therefore, what we tell our clients is to ask themselves what they think is a fair workplace – whether it is a place you are treated equally and not differently and less favourably because of a physical or non-physical attribute, whether it is a place that you are comfortable to be your own sex.

In general terms, a fair workplace is a place where everyone is respected equally, meaning little to no discrimination based on legally protected attributes, absence of any type of harassment, unreasonable management, bullying and a safe working environment.

It may be a little confusing, but Fair Work Australia is the former name of the Fair Work Commission. The Fair Work Commission is the now formal and proper name of the independent national workplace relations tribunal that governs most fair work legislation and regulations.

Many would say that Australia has some of the best employee rights in the world – and this is because of our rigid National Employment Standards that protects employees. These standards are the minimum requirements of all employers in Australia to provide fair and legally enforceable minimum terms and conditions of employment. Employers will not be able to override the National Employment Standards either by an enterprise agreement, award nor contractually.

The 10 minimum entitlements of the National Employment Standards are set out below:

• Maximum weekly hours
• Requests for flexible working arrangements
• Parental leave and related entitlements
• Annual leave
• Personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave
• Community service leave
• Long service leave
• Public holidays
• Notice of termination and redundancy pay
• Fair Work Information Statement

However, casual employees get slightly modified and reduced entitlements under the National Employment standards and they are related to the following:

• Unpaid carer’s leave
• Unpaid compassionate leave
• Unpaid family and domestic leave
• Community service leave
• The Fair Work Information Statement

It is very pertinent and important to know whether you are covered a modern award and if so, which award and what your entitlements are under it. You can likely check which award you are covered under by looking closely at your payslips. They may be in small print so make sure you look for it carefully – they may be written in code also.

The Fair Work Act 2009 (Cth) states that employers of employees under modern awards are legally obligated to follow all the requirements such as pay conditions set out in the relevant award. Modern awards outline your legal entitlements such as minimum pay rates and other conditions of employment pertaining to your specific position, employment and industry.

The Australian award system is quite complicated; however, it could be very useful to know how much you are actually owed if your employer has not strictly followed the minimum pay conditions set out in your award. The Fair Work Ombudsman can help identify whether there have been any pay discrepancies during your employment if you suspect there has been.

The Fair Work Act is the federal legislation that governs and empowers workplace rights in Australia. It also established the Fair Work Commission and the Fair Work Ombudsman in 2009 when the legislation was enacted.

The Act was introduced by the then federal labour government to set out the legally expected standards of all employment in Australia and the rights, responsibilities and liabilities of employees, employers and other relevant parties to employment.

The Fair Work Act is well written and is quite comprehensive for a piece of legislation. For some preliminary guidance to your employment rights, check out the act here (http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fwa2009114/).

The federal legislation only covers ‘national system’ employees and employers. Although this covers the majority of employees and will almost definitely cover you, it will depend on which state or territory you carry out your work in and what kind of industry you are in.

For example, in Victoria, police officers’ employment is governed under Victorian state jurisdiction and legislation. For some other states and territories, government workers are exempted from being classified as ‘national system’ employees.

You are likely not covered by the national system if you:

• Work in the state public sector or for a not-for-profit organisation in WA;
• Work in the state public sector or local government in QLD, NSW or SA;
• Work in the state public sector in Tasmania;
• Work as a law enforcement officer in VIC, ACT or the NT
• Work as an executive member of government in VIC

Therefore, to find out whether you are covered under the rights and responsibilities under the Fair Work Act, give us a call and we can see what we can do for you.

The Fair Work Act 2009 sets out the responsibilities of an employer to their employees. However, there is no definitive and set list of responsibilities, rather they are quite complicated and broad ranging. Some general responsibilities of employers are as follows:

• Ensuring all their employees entitlements set out under the National Employment Standards are met;
• Ensuring all employee entitlements set out under the relevant and appropriate modern award are met;
• Paying the correct wage following any requirements or industry standard;
• Keeping appropriate records such as warnings, investigations, payslips, etc.
• Treating all employees fairly and equally

If you wish to enquire about your employment conditions because you believe there may be some breaches of employer responsibilities, call us for a free consultation at 1800 333 666.

The most accurate way to calculate one’s minimum hourly wage is to refer to the award that covers your job position, duties and industry. You can also call the Fair Work Ombudsman for advice on which modern award you should be covered under and which level, if you are unsure.

Those that are not covered under a modern award, the national minimum wage as of 1 July 2020 Is $19.84/hour, pursuant to the Fair Work Act 2009.

Note: Employees of Western Australia may find that their industry or position follows the Western Australia State system as opposed to the federal system.

As it is a legal obligation for employers to pay you your entitled minimum wage per the relevant modern award or the minimum federal standard, it will give rise to a cause of legal action. If it is found that your employer has underpaid you, they will be appropriately penalised.

The maximum pecuniary penalty for an individual per contravention is up to $12,600 and $63,000 for a body corporate per contravention. There will also be an order to backpay you what you are owed, with added interest.

It is actually legal to pay employees by cash as long as it follows all award and national employment requirements and standards.

The reason why an employer paying their employees in cash is suspicious is because they could be doing this as a means to avoid their taxation and superannuation obligations. However, as long as your employer is following their legal obligations with regard to your remuneration, there is no issue with being paid in cash.

If you have been dismissed from your employment, you have a very strict 21 days (almost non-negotiable, save for extreme extenuating circumstances) in which you may lodge your claim to the Fair Work Commission. To do this, you must fill out a form called the F2 Application (Unfair Dismissal Remedy) that is online on the Commission’s website and then you lodge it online.

Once you have lodged your application, the Fair Work Commission will send you an email in about a week’s time to confirm the date for your initial conciliation conference, which will be conducted over the phone. You may have a support person present on the phone call, but they may not speak at all during the conference; they are merely there for your moral support. During this tele-conference, both parties will briefly state their arguments and the conciliator will open the discussion on how to settle the matter. The conciliator does not have authority to influence the decision of parties but are merely there for guidance and to facilitate an open discussion.

If the parties are successful in reaching a mutual agreement, the Commission will offer to draft the Deed that represents all the agreements that were made in the conciliation. They have a standard draft that they offer to all successful settlements. In the alternative, either parties may draft the agreement and they can execute their respective copies appropriately.

However, if an unfair dismissal application does not settle at the conciliation stage, it will proceed to an arbitration hearing which is much more like a formal court hearing. A senior member of the Fair Work Commission will receive further documents, affidavits, etc. from both parties in order to make a determination on whether, in their learned opinion, the applicant has actually been unfairly dismissed. If they find for unfair dismissal, they will order for appropriate remedies. If they do not find for unfair dismissal, they will dismiss the application.

If you have been dismissed from your employment, you have a very strict 21 days (almost non-negotiable, save for extreme extenuating circumstances) in which you may lodge your claim to the Fair Work Commission. To do this, you must fill out a form called the F8 Application (General Protections Involving Dismissal) that is online on the Commission’s website and then you lodge it online.

To make out a General Protections claim, you must have exercised a workplace right and then be subjected to adverse action by your employer because of you exercising that particular workplace right. For example, if you continue to tell your employer that you are not being paid the appropriate minimum wage and then you are terminated from your employment as a result. This is a very strict test following some new changes in Fair Work Commission, so make sure to give us a call at 1800 333 666 for a free consultation if you believe a General Protections claim applies to you.

Once you have lodged your application, the Fair Work Commission will send you an email in about a week’s time to confirm the date for your initial conciliation conference, which will be conducted over the phone. You may have a support person present on the phone call, but they may not speak at all during the conference; they are merely there for your moral support. During this tele-conference, both parties will briefly state their arguments and the conciliator will open the discussion on how to settle the matter. The conciliator does not have authority to influence the decision of parties but are merely there for guidance and to facilitate an open discussion.

If the parties are successful in reaching a mutual agreement, the Commission will offer to draft the Deed that represents all the agreements that were made in the conciliation. They have a standard draft that they offer to all successful settlements. In the alternative, either parties may draft the agreement and they can execute their respective copies appropriately.

However, if an unfair dismissal application does not settle at the conciliation stage, it will proceed from the Commission to the Federal Court of Australia. This is where you will need to brief a lawyer to represent you in these proceedings if you wish to take your claim further.

When General Protections Applicants are dismissed from the Fair Work Commission, you may request for a certificate to be handed out to the parties to refer the matter onto the Federal Court of Australia.

As the Federal Court is a court established by the Constitution and the Commonwealth, you will require an admitted lawyer to represent your case and interests in this jurisdiction. However, in the interests of justice to save costs, time and resources, the Federal Court will try and do everything in their power to finalise your claim.

This means that your General Protections matter will not immediately go to a trial proceeding before a judge, but a properly trained senior officer of the Federal Court will mediate your matter officially as another attempt to settle your claim. There will need to be a lot more work to be done in conjunction with your solicitor to prepare for this mediation, but most matters will settle at this point.

If the matter still does not settle after the mediation, your General Protections matter will go before a judge as a fully-fledged trial proceeding.

The requirements you need to meet before your rights to lodge a General Protections claim is that you needed to have exercised a ‘workplace right’ and your employer has subjected you to ‘adverse action’ because you exercised that particular ‘workplace right’.  

Having represented all kinds of General Protections matters, the most common scenarios that have enlivened our clients’ rights to a remedy in the Fair Work Commission are when:

• You asked for your entitlements, such as being paid the minimum wage for someone at your level, and then your employer dismisses you for asking for your rights;
• You are dismissed because you have made a bullying, discrimination, sexual harassment or any kind of complaint;
• You take sick leave or for some other genuine reason that has been allowed by your medical practitioner.

Give us a call for a free consultation at 1800 333 666 to see if we can help you with a General Protections application.

A normal dismissal from your employment should warrant your employer paying you all of your entitlements, including your annual leave accrual in cash.

However, if your employer says the words ‘serious misconduct’ and/or ‘summary dismissal’, this means that your dismissal is one of more serious nature which means that your employer will argue that they are not obligated to pay out your entitlements and annual leave accrual. If your dismissal was a summary dismissal, give us a call for a free consultation and we will give you some preliminary advice on whether we believe your conduct actually warranted a summary dismissal. In most cases, the Fair Work Commission and other jurisdictions have found that the bar for an employer to make out a genuine summary dismissal is extremely high and therefore in most cases, you will be entitled to your annual leave if it has been withheld from you.  

For your general information, annual leave is an employee entitlement governed by the National Employment Standards. All employees, save for those of casual employment, will accrue 4 weeks of annual leave in a year, or five weeks if you are a shift worker. Annual leave is accrued over time which means that it builds up over time – you are not entitled to 4 weeks as soon as you begin your employment with your employer.

The test for bullying in the workplace is repeated and unreasonable management action, either from a superior employee, manager or even a co-worker. It is important that it is repeated and that you can make out that the action of the perpetrator is unreasonable and not simply an act that is within ordinary management.

Some examples of bullying can be:

• Marginalising or ostracising you from the rest of the workplace
• Being aggressive or intimidating towards you through their language and/or actions
• Humiliating and denigrating you in the workplace in front of your colleagues
• Making jokes about you that are not amusing to you
• Giving you all the hard or maybe mundane work so that you always have to work harder than everyone else

As you can see, bullying can take many different shapes and forms. If you feel as if you are being treated unfairly by being bullied in the workplace, give us a call at 1800 333 666 for a free consultation on your options and rights.

A very common question we get from victims of sexual harassment is, ‘I’m not sure if this counts as sexual harassment’. Our answer is very simple – there is no specific legal definition of sexual harassment in legislation but there are many examples – if you have been made to feel uncomfortable and disturbed by someone else’s comment, looks, gestures, conversations within earshot, messages, allusions, etc. of a sexual nature or remotely related, this may constitute sexual harassment.

There are a couple of options to claim for a remedy if you believe you have been sexually harassed in the workplace and you wish to begin an action against the perpetrator.

Please be aware that it is very normal to feel nothing when the sexually harassing acts or comments begin, but then gradually you find it wears you down and you experience severe and detrimental effects to your mental or physical health. Speak to anyone in our office for a free consultation for you to learn more about your options, to give you some confidence that what has been happening to you is actually wrong and that you do have a leg to stand on. 

The legal test to make out discrimination is when someone is treated less favourably because of a personal and protected attribute, compared to someone who does not have the aforementioned attribute.

The protected attributes recognised under the law today are as follows (these protected attributes do slightly differ between the different states and territories):

• Age
• Race
• Religion
• Political belief (tedious)
• Sex
• Sexual orientation
• Gender
• Marital status
• Lawful sexual activity
• Responsibility as a carer
• Pregnancy or breastfeeding
• Physical or mental disability

Discrimination can not only occur during your employment or be the cause of the termination of your employment, but it can also happen before you even begin a formal employment relationship. If you have a reasonable suspicion that you were not successful in getting a job because you were discriminated for having a protected attribute, or the conditions/requirements of the job position were inherently discriminatory for no genuine reason, you may have a basis for a discrimination complaint.

You could also have been mistreated or less favourably treated compared to your other employees who do not have the protected attribute that you have (e.g. sex, race, religion, etc.). You could also have a reasonable belief that because of prejudices arising from your protected attribute, the consequences of any possible misconduct were overly harsh (such as one mistake leading into immediate termination) or you were subject to an unfair or biased investigation.

There are some legal technicalities to ensuring that you find discrimination under the law, so call us at 1800 333 666 for a free consultation.  

Your employer will have to prove that you, in fact, did abandon your employment in order to remove you from their books as an employee as a result of your abandonment.

In the case that your employer can prove that you abandoned your employment and that they made genuine and sufficient attempts to contact you, your employer will have legal cause to formally end your employment and it will not be classified as a dismissal on their part. This means that if you have indeed abandoned your employment you will not have cause for a remedy for unfair dismissal against your employer.

A common misconception of abandonment of employment is that if an employee is absent from work for three days without contact to the employer that this constitutes a legitimate abandonment of employment which then terminates the employee’s employment. This is no longer true and so an employer must look to the Modern Award covering that particular employee to see if the employee’s employment has ended by abandonment of employment.

Generally, abandonment of employment will be when an employee is absent from work for a prolonged period of time and when the employer does not know the reason why they are absent from work for these days. It must be reasonable for the employer to conclude in these circumstances that the employee no longer wishes to be employed.

Generally, no. The test for abandonment of employment will be largely adjudicated on a ‘common sense’ basis. Although a common misconception amongst employers is that if an employee is absent without providing reason for 3-5 days, that an employer is entitled to classify that employee as having abandoned their employment, this is not necessarily true.

The most important place to look for the requirements of an abandonment of employment of a particular employee is to look at the Modern Award that that particular employee is covered under. Most awards will provide the number of days or period of time the employee must be absent without providing reason to the employer and then also set out the obligations of the employer that they need to follow in order to validly end the employee’s employment without liability.

Ever since the reviews of the Modern Awards in 2018, the Fair Work Commission has imposed obligations on the employer to do certain things when they suspect an employee may have abandoned their employment.

Although the requirements of employers in this situation where they suspect an employee might have abandoned their employment may differ according to each Modern Award covering that particular employee, the absolute minimum obligation is for that employer to make contact or to make genuine and sufficient attempts to contacting the employee about why they are not coming to work.

These contacts or attempts at contact can be done through call, email, text message, maybe even reasonably and respectfully showing up at your known residence.

Very similarly to a dismissal situation, you will still be paid all your entitlements and for all the days you have worked at your employment. However, you will not be paid the rest of your pay period if you have not physically and actually worked out those days.

There is no strict requirement for your employer to pay you out early before the original pay period, but you may have the option to negotiate with your employer to organise the payment of your exit pay before this period.  

Sometimes that all employees should do is ensure that they communicate well with their employers. Something that all employers should do is create an open and safe environment for employees to be communicative about their working conditions. If employees are consistently communicative with their employers, there will be very little chance for there to be any misunderstanding between employer and employee regarding abandonment of employment.

For example, employees should ensure that they always send medical certificates to their employers in a timely fashion (i.e. immediately upon receiving it from their treating doctor) but also then making sure they receive confirmation from their employer that they have received and understood it.

Your employer is entitled to know whether you will be present for work and if you will be absent, that you provide good reason for it. If this reason is by a medical certificate, there are only certain things that the employer is entitled to know. This includes seeing a copy of the medical certificate that does not need to specify the reason for its existence and the time period it covers for your absence.

If your employer pressures you to disclose the reason why you are being granted a medical certificate by your treating doctor, they are not allowed to do this, and you are under no obligation to disclose it as per your employment rights.

However, be practical. If you believe your employer is being genuine and is asking you for the reason out of concern and to properly support you, and you are comfortable with disclosing the reason for your medical certificate, it is fine for you to do so. The most important thing is that both you and your employer are content with the employment relationship.

If you have been absent for a prolonged period of time and your employer has made genuine attempts to contact you to find out your reason for absence but you still have not communicated with them, it will be considered that the employment is terminated by yourself by the renunciation of your employment obligations. Although on its face, it may seem that the employer has ended the relationship by taking you off the books, the employer will not be open to unfair dismissal liabilities for doing so.

Thus, it is very important that if you are planning to be absent from work that you properly notify and continue to communicate your intention to return to work when you are able.

In the worst-case scenario, your employer may claim that your abandonment of employment amounts to serious misconduct which may preclude you from recovering your entitlements accrued during your employment.

The burden of proving that the abandonment of employment amounts to serious misconduct lies with the employer and it is usually very hard to reach this standard of ‘serious misconduct’. Therefore, to recover all your end-of-employment entitlements, ensure you have good reason for your absence and proof of that reason.

If you have requested for leave for a specific period of time, your employer has refused your request for leave and then you are absent without explanation for this period, your employer will most likely put two and two together.

The circumstances may differ according to how the situation played out. If you were requesting leave for a genuine reason such as an illness or to take care of an immediate family member but your employer has unfairly and inappropriately denied you leave, you may have grounds to defend the claim against you for abandonment of employment. However, if your employer has reasonably denied your request and you retaliate and choose to be absent anyways, this may constitute abandonment of employment.