Termination of employment can sometimes result in an application for unfair dismissal being lodged in the Fair Work Commission (FWC). It is important that if you receive a claim, you obtain advice and respond to the claim in the timeframe specified.
MBA ACT can assist you as an Employer Representative in the FWC for a variety of matters, including unfair dismissal.
When can an unfair dismissal claim be lodged?
Employees will have 21 days from the date of termination to file their application in FWC.
To be eligible to make the application, the employee must have completed a minimum period of employment, being 1 year for small businesses (<15 employees) and 6 months for an employer with more than 15 employees. There is also a high income threshold of $175,000.
What constitutes dismissal?
The Fair Work Act 2009 (Cth) (FWA) defines dismissal as either as termination as a result of the employer’s initiative or where a person has been forced to resign because of the conduct or course of conduct of an employer, such as a forced resignation.
It is the role of the FWC in these matters, once an employee is determined to be protected from unfair dismissal, to determine the merits of the unfair dismissal claim. The FWC will look at those factors surrounding termination and will then determine whether termination was unfair, unjust or unreasonable.
What can you do to mitigate the risk of an unfair dismissal claim?
As a member, you can reach out to the Advisory team to obtain general advice about your current situation to determine whether termination of employment is a suitable option before terminating employment, if necessary.
If you have received an unfair dismissal claim from a former employee, reach out to discuss the next steps and/or how we can assist you through this process.
For further information, contact the Advisory Team on 6175 5900 or by email: legal@mba.org.au.
