Whether you are an employer or an employee, it is important to deal an unfair dismissal claim correctly – to avoid unnecessary cost and headaches.
The two main forums for unfair dismissal claims in Western Australia are the Fair Work Commission (FWC) and the Western Australian Industrial Commission (WAIRC). The choice of forum is based mainly on whether or not the employer is a trading corporation. This is not always easy to work out. Due to the relative ease of making an unfair dismissal claim in either forum, many employers will have to deal with a claim like this in the lifecycle of their business.
Here are our top tips for handling an unfair dismissal claim.
Tip 1 – Get early advice
The FWC and the WAIRC deal with a large volume of claims every year. Compared with other kinds of common law and statutory employment claims, an unfair dismissal claim is dealt with very quickly and statutory timelines are much tighter.
An application claiming unfair dismissal must be lodged in the FWC within 21 days, and in the WAIRC within 28 days, of the date the employment is terminated. An employer must lodge a response to the application within 7 days of being served with a copy.
You can lodge a claim or a response outside of these timeframes but the FWC will only accept a late application under exceptional circumstances.
Once an employee’s application is lodged, the employer and the employee will be given a conciliation date and time, that is generally three weeks after the application is made. The WAIRC has similar timeframes for dealing with a claim.
While the online applications may appear to be simple to complete they could be thrown out for lack of jurisdiction if the claim is wrongly framed (for example, bringing an unfair dismissal claim if you were made genuinely redundant). Get early advice so you can best prepare for all of the steps in an unfair dismissal process.
Tip 2 – Meet your legal obligations
The conciliation process for unfair dismissal claims has been designed to promote the fair and efficient resolution of issues between employers and employees. It is important to be well-prepared with all of the information required for the conciliator to help you negotiate an equitable outcome. Depending on the situation, this information might include an employment contract, letter of termination, or formal written warnings. Omitting any important facts will not help the claim to be resolved efficiently and may lead to more costly arbitration or litigation.
Leave and redundancy pay
Depending on the context of the termination, an employer has a legal obligation to pay an employee any required long service leave, annual leave, and/ or redundancy pay. As a part of an unfair dismissal conciliation, employers and employees cannot deal out of these obligations to obtain another benefit – for example payment of a bonus or the early settlement of a claim.
If you are an employer who is contemplating making an employee redundant, be sure that the redundancy is a ‘genuine redundancy’ as defined by section 389 of the Fair Work Act 2009 (Cth):
- A person’s dismissal was a case of genuine redundancy if:
- the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
- the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
- A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
- the employer’s enterprise; or
- the enterprise of an associated entity of the employer.
If an employee is made redundant, and it is not genuine (for example redundancy as a way of avoiding management of performance issues), then the employee has a right to lodge an unfair dismissal claim that will have to be deal with.
Tip 3 – Be ready to negotiate and settle
Last year, roughly 17,806 people lodged an unfair dismissal application and roughly 80% of claims that reached conciliation were settled between the parties. The job of FWC and WAIRC conciliators is to actively help the parties reach a resolution to their dispute.
This means that with the assistance of conciliators, employers and employees have negotiated settlement outcomes that have included one or a combination of the following remedies:
- monetary payment
- an apology
- return of property
- payment in kind
- provision of information or an undertaking
It is important to remember that the FWC and the WAIRC are non-adversarial bodies. It is not their role to represent or advocate for either employers or employees. They are there to help you negotiate.
Tip 4 – Don’t speak badly about the other party
A conciliation with the FWC / WAIRC is a confidential meeting between an employer and an employee. A settlement deed will most likely contain a confidentiality clause. This means that the parties cannot discuss the settlement outcome with anyone other than their legal representatives. It can also be damaging on a reputational level for the parties to tell current employees / prospective employers about the details of an unfair dismissal claim. It is best to learn from the experience and move on.
Tip 5 – Be informed
Being informed is the first step in preparing for an unfair dismissal claim. Both the FWC and the WAIRC have websites that provide information for the general public:
The FWC and the WAIRC can’t provide legal advice. This means you should get the help of a lawyer, especially if the issues to resolve are complex and require expertise over a range of legal areas. These areas might include corporations, commercial, work health and safety or criminal law.
How can we help you with an unfair dismissal claim?
If you need assistance with an unfair dismissal claim, feel free to contact our office to arrange a private consultation with our employment law team (fees apply).
About the authors:
This article has been co-authored by Shzan Plandowski, law graduate and Steven Brown, director at Lynn & Brown Lawyers. Shzan has experience in corporate and property law. Steven is a Director and has over 18 years’ experience in legal practice and practices in commercial law, business law and estate planning.