As an employer, you can dismiss an employee based on their work performance or general conduct as long as you follow the proper procedure in terminating their employment. If you are not careful in following the appropriate steps to dismiss an employee, your employee may be entitled to make an unfair dismissal claim.
If you find yourself on the receiving end of an unfair dismissal application, you can comply with or object to the claim. This article introduces you to the process of an unfair dismissal application, and the grounds on which you can object to the claim.
On What Grounds Can I Object to An Unfair Dismissal Application?
You can object to the application for one of four main reasons. We set these out below.
1. The dismissal was not unfair
If you genuinely believe that you have followed the procedure and fairly dismissed the employee, you can raise this objection. One instance that is not considered unfair dismissal is letting an employee go due to redundancy. If it is a genuine redundancy, the employee cannot make an unfair dismissal claim.
2. The applicant did not lodge the claim within the prescribed time limit
A dismissed employee has 21 days in which to submit an unfair dismissal application. If you believe the employee has lodged the claim after this period, you can object to the application on these grounds.
3. The applicant is not eligible to make an unfair dismissal claim
An employee must first satisfy a number of criteria before he or she is eligible to make a claim, including:
- Minimum employment period;
- Income threshold; and
- Whether the applicant was an employee.
4. The application is considered ‘frivolous, vexatious or has no reasonable prospects of success.’
Only raise this objection if you genuinely consider the application frivolous or vexatious. If it is found that you have raised the objection without reasonable grounds, you may be ordered to pay the employee’s costs incurred in dealing with this objection.
How Do I Object?
The Fair Work Commission requires you to fill in an ‘Employer response to an application for an unfair dismissal remedy’ form. You must lodge the completed form with the Commission and then serve it on your employee within seven days of receiving the unfair dismissal application.
The form requires you fill in details about the employee’s employment and the dismissal. It may require you to provide supporting evidence with the form. You can lodge the application online, by email, post, fax or in person and serve the form on the applicant by email or post.
If I Don’t Object, What Happens?
If you don’t have grounds to object, you are still required to respond to the application. The applicant and yourself will then participate in a conciliation conference with the Fair Work Commissioner. The Commissioner is a neutral third party who will try to help you and the applicant to resolve the matter by agreement.
If the matter is unresolved through the conciliation, the Commission may then address the claim at a conference or hearing.
It is best to make sure you take the proper steps in dismissing an employee. Check the procedure and requirements under Australian employment laws, industry requirements and the employee’s Employment Agreement.
Questions about an unfair dismissal application? Get in touch with our employment lawyers.