If you have been fired, we strongly recommend that you contact us for free and confidential legal advice here or contact us on 1800 953 673 (from 9am – 5pm, Monday to Friday).
When you have lost your job unfairly, it can be hard to navigate what steps you can take. This FAQ will help you understand what’s involved with an ‘Unfair Dismissal Application’. First, we encourage you to read our factsheet on Getting Fired, to check if you’re eligible to make this application.
If you have been fired unfairly, you can make an application to the Fair Work Commission (FWC). The FWC can decide whether you were fired unfairly, and what remedy or resolution, if anything, you should get. The FWC is a ‘tribunal’, which is a bit like a court. Someone called a ‘Member’ or ‘Commissioner’ who is like a judge, will hear both sides of what happened and make a decision. Before this can occur, both sides must first attend a telephone conciliation to try and settle the matter without going to a formal hearing. Most matters will resolve at conciliation.
Before applying for Unfair Dismissal, we strongly recommend that you get legal advice by contacting us here.
Click here to see our guide on how to complete your own application to the Fair Work Commission.
An unfair dismissal application must be lodged within 21 days of being fired. If you lodge after 21 days, you must show that there were exceptional circumstances, which can be difficult to do. If you have missed the 21-day window and still want to make an application, contact us here for free advice.
Once the FWC receives your application, you will have to attend a conciliation with your employer, which is always via telephone, and lasts 90 minutes. See this information page provided by the FWC to learn more about the conciliation process.
This is a great opportunity to try and resolve the issue without going to a full hearing. Conciliation is a chance to try and come to a ‘settlement’, which might include:
If you’re unable to resolve the matter at conciliation, you may have the matter proceed to a hearing, which is where the Member, who acts like a judge, will hear both sides and make a decision. Their job is to decide if you were dismissed unfairly, or that you were not dismissed unfairly.
The conciliation is conducted by phone so you don’t have to see your former employer or talk with them directly if you don’t want to. Once everyone is on the phone line, and the conciliator has explained how it works, you will be invited to speak, uninterrupted, to explain what has happened and why you think you were fired unfairly. If you have a representative, like your union or solicitor, they can speak for you. Your employer is not allowed to talk while you’re talking. They will then have a chance to respond – it is normal to find it upsetting to hear things that you do not think are true or that you do not agree with. You cannot talk while they are talking.
After everyone has spoken, the conciliator will put both parties on separate phone lines, and shuttle between the two calls to see if everyone can decide on an outcome. Everything that is said or decided in conciliation is confidential and recording is not permitted.
See the Fair Work Commission’s factsheet titled ‘What happens in a conciliation meeting’ for more information about conciliation.
Not in our experience. People find that the conciliation process is a great opportunity for parties to clear the air and move on. Commonly, employers will agree to provide a Statement of Service and convert the termination to a resignation. The terms of settlement document will generally contain clauses ensuring mutual confidentiality and ‘non-disparagement’. This means that you and your employer agree not to speak badly of each other or disclose publicly what was agreed at conciliation. If your employer agrees at conciliation to change your termination to a resignation, this can make it much easier for you to apply for other jobs.
Common outcomes include:
Getting your job back is very uncommon – we find that most people don’t want to go back to their job after they have been dismissed, but it is possible, particularly if a transfer or relocation is available.
Ultimately this is all about what the parties can agree on.
In our experience, matters involving compensation will resolve for a few weeks’ pay (usually between 1-5 weeks). The average compensation awarded at a hearing – which is the step after conciliation – is only 5 weeks. Given that, it’s a good idea to take conciliation seriously, and try and get an outcome there.
If there is no settlement reached, the case automatically continues to a formal hearing or a ‘formal conference’. Both parties need to prepare evidence so the Commission Member can make a decision about the case. You can decide at any time before hearing to pull out of this process (“discontinue”) if you no longer wish to go ahead with it.
A hearing is a formal process, and looks a bit like a court – both sides need to prepare evidence and write ‘submissions’, which is a summary of their case. Then these cases are presented in the hearing, and a Commission Member will decide who is right, and what the outcome should be.
The Fair Work Commission has some great information on this process, which can be found here.
We strongly recommend getting legal advice if your matter is continuing to a formal hearing – reach out to us here for free and confidential advice.
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