How to get help with an unfair dismissal appeal

Unfair dismissal appeals are heard in the Fair Work Commission for most Australian workers, although this may not be the case if you are a public servant working in Federal, State of Local Government.

Your jurisdiction will depend on a number of factors, but for more than 85% of Austrlian workers, your unfair dismissal appeal will generally be heard by the Fair Work Commission.

It is common in all jurisdictions that there is a strict time constraint on the appeal being submitted for the consideration of the Fair Work Commission or its equivalent. The appeal must generally be lodged within twenty-one (21) days of the dismissal taking effect on the employment contract.

 

The Fair Work Commission which hears more than 3,000 unfair dismissal appeals each year, is generally intolerant to appeals that are received outside of this time, however there are circumstances that the Fair Work Commission may take into account as mitigation.

For example, if your were unwell and receiving medical treatment that prevented you from lodging the unfair dismissal appeal, the Fair Work Commission or it equal in a State or Territory jurisdiction, may consider this as a, extraordinary circumstance and then use its discretionary powers to allow the unfair dismissal appeal.

Criteria for considering a termination of employment to amount to an unfair dismissal are multiple, by in the general terms, there ought to be a valid reason for the termination of the employment contract. 

Where a valid reason does not exist, it is likely that the unfair dismissal appeal would be successful.

The assessment of the circumstances concerning the dismissal, ought to be carried out by a professional  Industrial Advocate and not by a novice dabbling in the field of workplace and industrial relations.

In my experience, most solicitors do not practice in employment law and typically leave this area of the law to professional Advocates like Brian Newman to assist workers and employers to resolve unfair dismissal appeals and such other related matters.

The eligibility requirements for making an unfair dismissal application under the Fair Work Act 2009 (Cth) (FW Act) are set out in various sections of Pt 3-2. Broadly speaking, whether an employee can claim for unfair dismissal will depend on:

  • the type of employment, eg, whether an employee is a national system employee, an independent contractor or a volunteer;

  • the employee’s duration of service;

  • the employee’s salary or coverage under a modern award/enterprise agreement;

  • the occurrence of a ‘dismissal’;

  • the timing of the claim for unfair dismissal; and

  • whether the employee has already sought another remedy in relation to the same dismissal, eg, a common law action for wrongful dismissal.

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