The unfair dismissal application process

On this page:

• Overview
• After the unfair dismissal application is lodged
• What is conciliation?
• Hearings & conferences
• Objections to unfair dismissal applications
• Remedies for unfair dismissal

Overview

Where possible, Fair Work Australia (FWA) seeks to resolve unfair dismissal applications by agreement.

The key steps in the unfair dismissal application process are:

1. Employee lodges the application
2. The application is checked to ensure it is complete and valid
3. Employer is notified of the application
4. FWA conciliates the application to try to have the parties resolve it amongst themselves
5. An unresolved application is determined by FWA

After the unfair dismissal application is lodged

Once the employee's unfair dismissal application has been lodged with Fair Work Australia the employer should receive written notification of the application, information about the process Fair Work Australia will follow and an employer response form. The employee and the employer should also receive details of the time and date for the conciliation of the application.

What is conciliation?

Conciliation is an informal, private and generally confidential process where a FWA conciliator assists employees and employers to resolve an unfair dismissal application by agreement.

The conciliator is independent and does not take sides, but works to bring the parties to an agreed resolution.

The style of each conciliator may vary but, in general, a conciliation will include the following steps:

• the conciliator explains their role and the manner in which the conciliation is to be run
• each side briefly outlines their story including what happened, any relevant facts and what they want
• the conciliator may allow or ask questions
• the circumstances, and any issues arising, are discussed. The conciliator may talk separately to the parties
• the conciliator assists the parties to reach agreement by identifying common ground, suggesting possible options and sometimes by making recommendations and assisting the parties in drafting an agreement in writing.

It is important that prior to the conciliation you review what you want to say at the conciliation about the unfair dismissal application and, if possible, send to FWA any documentary material you want considered at the conciliation.

Hearings & conferences

If the unfair dismissal application is not withdrawn or does not settle at or before the conciliation, the employer and the employee will each receive written notification from Fair Work Australia of any conferences or hearings to be held on the application.

The notification will include the time, date and location of any such conference or hearing.

An application for an adjournment of the conference or hearing must be given in writing and provide full reasons for seeking the adjournment. Adjournment applications will only be granted on substantial grounds.

Objections to unfair dismissal applications

An employer can object to an unfair dismissal application on the basis:

• the applicant was not unfairly dismissed
• the application was lodged with FWA outside of the prescribed time limits
• the applicant is not covered by the unfair dismissal laws or is not eligible to make an application
• the application is frivolous, vexatious or has no reasonable prospects of success.

Remedies for unfair dismissal

If Fair Work Australia is satisfied an employee was unfairly dismissed then it may order the employee's reinstatement, or the payment of compensation to the employee if satisfied that reinstatement is inappropriate.