Employees have 21 days from the date of termination to lodge an Application for Unfair Dismissal with the Fair Work Commission.
The preferred method of resolving an unfair dismissal claim, under the unfair dismissal provisions of the Fair Work Act 2009, is the reinstatement of the employee to the position they were previously in or into a new position (that has similar hours, responsibility and pay).
In most cases, this just isn’t practical nor is it realistic.
Compensation is calculated and capped at the lesser amount of 6 months’ pay or $72,700.00 (from July 2018) or $71,000.00 (between 1 July 2017 to 30 June 2018) for both small businesses (less than 15 employees) and businesses with more than 15 employees. When awarding compensation, the Commission takes into consideration a myriad of current circumstances including, the employer’s financial position, the length of the employee’s employment, and whether the employee mitigated his/her loss by attaining alternative employment etc.
Yes! The Fair Work Commission will organise a compulsory conciliation conference (usually held around 6 weeks after your application is filed) which allows for you and your employer to negotiate a solution.
You and your employer are expected to have genuine and constructive settlement discussions at the conciliation conference in order to reap the benefits of the process.
For the employer, a well-prepared response to an employee’s Application for Unfair Dismissal is absolutely invaluable during a Conciliation Conference.