In Short
-
Respond to an unfair dismissal claim within seven days of receiving notice from the Fair Work Commission.
-
You can object to a claim on grounds like the employee not meeting the minimum employment period or lodging the claim too late.
-
A conciliation conference will be scheduled to attempt a resolution, failing which a hearing may follow.
Tips for Businesses
Ensure you follow the correct dismissal procedures to avoid unfair dismissal claims. Familiarise yourself with employment laws and your employee’s contract terms. If you’re unsure about any step, seeking legal advice can help you handle the process correctly and protect your business from costly claims.
As an employer, you can dismiss an employee based on their work performance or general misconduct. However, you must follow the proper procedures regarding terminating their employment. Otherwise, your employee may be entitled to make a claim for an unfair dismissal remedy, and you may not be able to object to the claim. This article explains the process of responding to an unfair dismissal application and the grounds on which you can object to the claim.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
What Should I Do After Receiving an Unfair Dismissal Application?
If your employee makes an unfair dismissal application, the Fair Work Commission (FWC) will send you a copy of the application outlining why they believe their dismissal was unfair. The FWC will also:
- send a notice of listing; and
- set a time and date for a conciliation via telephone with an FWC conciliator to try and resolve the matter.
You will then have seven days to file an ‘Employer response to an application for an unfair dismissal remedy’. Your application outlines your side of the story and details any relevant objections you wish to raise.
On What Grounds Can I Object to An Unfair Dismissal Application?
You can raise a jurisdictional object to an application if you believe your employee is not eligible to make an unfair dismissal application. Examples can include the following.
| Ground | Explanation |
| The applicant did not lodge the unfair dismissal claim within the prescribed time limit. | An employee must lodge an unfair dismissal application within 21 days after the dismissal takes effect. If you believe the employee has lodged the unfair dismissal claim after this period, you can object to the application on the basis that the application is out of time. |
| The applicant was not dismissed. | An employee must have been dismissed to be eligible to make an application for unfair dismissal. You either terminated the employee’s employment or the employee had to resign because of their conduct. |
| The applicant’s employment does not meet the minimum employment period. | Employees can only apply for unfair dismissal once they have met the minimum employment period per the Fair Work Act 2009 (Cth). The minimum employment period is generally six months. However, for businesses with fewer than 15 employees at the time of dismissal, the minimum employment period is 12 months. |
Additionally, your employee cannot logde an application if you dismissed them in case of ‘genuine redundancy’. A dismissal will be a case of ‘genuine redundancy’ if you:
- no longer required someone to perform the employee’s job due to changes in the operational requirements of your business;
- have complied with any applicable consultation obligations under a modern award or enterprise agreement; and
- could not reasonably redeploy the employee within your business enterprise.
What Happens If I Object to the Application?
Raising a jurisdictional objection will not stop an application. However, in the event that you cannot settle the matter at the initial conciliation, the matter will likely be set down for a jurisdictional objection hearing.
This is to determine whether the objection is made out. A jurisdictional objection hearing also occurs prior to a substantive hearing, which considers whether the dismissal was unfair.
Suppose you prove that your employee is not eligible to make an application. In that case, the FWC will have no jurisdiction to deal with the application. Subsequently, the FWC will order that the application be dismissed.
What Happens If I Do Not Object?
If you do not have grounds to object, you are still required to respond to the application. You and the applicant will then participate in a conciliation conference with a conciliator from the FWC.
The conciliator is a neutral third party who will try to help you resolve the matter by agreement. If the matter is unresolved through the conciliation, the conciliator may address the claim at a conference or hearing.
Preventative Measures
It is best to take the proper steps to dismiss an employee. Hence, you should check the procedure and requirements under:
- Australian employment laws;
- industry requirements; and
- your employee’s employment agreement.
Key Takeaways
If you receive notice of your employee’s unfair dismissal claim, you have seven days to raise any objection to the claim if you believe your employee is not eligible to make an application. Objections to an unfair dismissal claim include that the applicant:
- did not lodge the claim within the prescribed time limit;
- has not been dismissed;
- was dismissed in a case of genuine redundancy; and
- did not meet the minimum employment period.
If you need assistance responding to an unfair dismissal claim, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
If an employee lodges an unfair dismissal claim, you must respond within seven days to the Fair Work Commission. Review the claim carefully and determine if you have valid grounds for objecting, such as the employee not meeting the minimum employment period or submitting the claim too late. You may be invited to a conciliation conference to resolve the issue.
If a conciliation conference fails to reach a resolution, the Fair Work Commission will schedule a formal hearing. At the hearing, both parties can present their case, and a decision will be made regarding whether the dismissal was unfair. If the claim is successful, the employee may be reinstated or compensated.
We appreciate your feedback – your submission has been successfully received.
