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Unfair dismissal: 7 things you need to know.

David Bates
Thursday, September 20, 2018

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Many employers will be familiar with the sinking feeling that inevitably accompanies receipt of an unexpected email from the Fair Work Commission (“Commission”). Just when you thought you could finally put an unpleasant employee experience behind you, you’re sent a copy of their unfair dismissal application.

Once received, employers are expected to respond to the application, within seven days, using the Commission’s Form F3 (‘Employer’s Response to Unfair Dismissal Application’). It’s at this stage that many employers then contact their lawyer for advice and assistance.

One of the most common questions we receive from clients facing an unfair dismissal is ‘what on earth is a jurisdictional objection?’. This enquiry is usually prompted by question 2.1 on the Form F3 that asks: “Do you have any jurisdictional or other objection(s) to the application?”

At its simplest, this question is really asking the employer whether they agree the employee is, in fact, legally-entitled to pursue their unfair dismissal claim. 

There are, in fact, a number of requirements that must be met by an employee before they become entitled to claim unfair dismissal, and this question provides employers with an important opportunity to challenge the legal validity of the application. 

You may then be asking: ‘what are the grounds for objecting to a claim?’. Helpfully, question 2.2 on the Form F3 lists each of these in turn. There are 7 of them so let’s take a closer look:

1. Was the application lodged ‘out of time’? Employees must file their unfair dismissal claim within 21 days of their dismissal taking effect. If it was lodged after that deadline, the employer can object and the employee will then be required to prove there were ‘exceptional circumstances’ which justify an extension to the filing deadline.

2. Was the applicant an ‘employee’? Only employees are protected from unfair dismissal. So, if the applicant was an independent contractor (or anything other than an employee), this is your chance to let the Commission know.

3. Was the applicant actually dismissed? Only an employee who was dismissed at the employer’s initiative can bring a claim for unfair dismissal. This means if the employee voluntarily resigned, you should make this clear in your response.

4. Was the applicant made ‘genuinely redundant’? A redundancy which meets all of the Fair Work Act 2009’s requirements of ‘genuineness’ is not an unfair dismissal. If you’ve met all these requirements, make sure the Commission knows it.

5. Did the employee meet the ‘minimum employment period’? An employee only becomes protected from unfair dismissal once:

(i) they have been employed by a small business (one with fewer than 15 employees) for at least 12 months; or

(ii) they have been employed by a business with 15 or more employees for at least 6 months.

If the applicant doesn’t meet this requirement, you can object.

6. Was the applicant being paid more than the ‘High Income Threshold’ (HIT)? An employee who earns more than the HIT is not able to bring an unfair dismissal claim unless they are also covered by a Modern Award or an Enterprise Agreement. The HIT is adjusted each year by the Commission, and is currently set at $145,400 p/a. Compulsory super contributions are excluded from the calculation of the HIT, but the agreed monetary value of other guaranteed entitlements (such as a company car) must be included.

7. If your business is a ‘small business’, was the dismissal consistent with the Small Business Fair Dismissal Code? Many small business employers remain unaware that by carefully following the Code when dismissing an employee, any subsequent unfair dismissal claim can be quite easily defended. You can download the Code here.

Understanding and relying on the above objections to unfair dismissal claims can save employers considerable amounts of time, worry, and money!

Published: Thursday, September 20, 2018


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