What should I include in my unfair dismissal application?

What should I include in my unfair dismissal application?

The FWC unfair dismissal application form Form F2 contains broad guiding questions in relation to what you should include and provides space to answer these questions.

You should ensure that you answer each question on the form. In general you should use numbered paragraphs, provide dates of events that occurred and who was involved in your dismissal.

Keep in mind that the purpose of application is to outline all of the facts giving rise to your unfair dismissal claim and to support the criteria for an unfair dismissal application.

You may need to refer to particular provisions of the Fair Work Act 2009 (Cth), but of primary importance is to substantiate your claim through consideration of what actions or conduct of your employer gives rise to your claim.

There are four elements to an unfair dismissal application you must demonstrate in your application (section 385).

  1. You must have been dismissed from your employment; and
  2. the dismissal was harsh, unjust or unreasonable; and
  3. the dismissal was not consistent with the Small Business Fair Dismissal Code (if a small business); and
  4. the dismissal was not a case of genuine redundancy.

 

You may attach your own statement of events and/or answers to the questions as a separate document to the form. To do so you should reference your attached  document in each question box.

If you do draft your own document, ensure that it answers the required information outlined in the form and criteria for an unfair dismissal claim.

To be unfairly dismissed there must be an invalid reason(s) and/or unfair procedure taken by your employer.

    1. You must have been dismissed from your employmentThis element is addressed in Am I eligible to make an unfair dismissal application?The next three elements to be satisfied demonstrate the “unfair” component of an unfair dismissal claim.Question 3 of the FWC Unfair Dismissal Form F2 is about whether there was a valid reason and procedure taken in dismissing you from your employment.You should address any reasons given in dismissing you in question 3.1 of the FWC Unfair Dismissal Form F2 including why the reasons given are not valid.You should address the unfair procedural elements primarily in question 3.2 of the FWC Unfair Dismissal Form F2.
    2. Your dismissal must have been harsh, unjust or unreasonable (section 387)The meaning of “harsh, unjust or unreasonable” is defined in the Fair Work Act 2009 (Cth) according to the following criteria:
      1. Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
      2. Whether the person was notified of that reason;
      3. Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
      4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
      5. If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
      6. The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
      7. The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
      8. Any other matters that the FWC considers relevant.

 

You should answer and address each criterion in your application as comprehensively as possible. One approach you may take is to list and provide an answer to each criterion individually in question 3.2 of the FWC Unfair Dismissal Form F2.

 

    1. If your employer is a small business employer, your dismissal must not have been consistent with the Small Business Fair Dismissal Code (section 388(2))Your employer is a small business employer if they are a national systems employer who employs fewer than 15 employees at the time of your dismissal. (section 23(1))The number of employees includes the dismissed employee section 23(4)(a) but only includes casual employees who are employed on a regular and systematic basis (section 23(2)(b))The Small Business Fair Dismissal Code is a separate document from the Fair Work Act 2009 (Cth) that is merely declared to be the Small Business Fair Dismissal Code (section 388(1)).

 

A free online copy of the Small Business Fair Dismissal Code may be found here on the Fair Work Ombudsman website or on the FWC website

 

Small Business Fair Dismissal Code

To be consistent with the Small Business Fair Dismissal Code:

In the case of summary dismissal, which Is when you are dismissed without notice or payment in lieu of notice, it is fair for an employer to dismiss you without notice or warning if they believe on reasonable grounds that your conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct is defined to include:

      • theft, fraud, assault, violence and
      • conduct that causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of your employer’s business;
      • wilful or deliberate behaviour that is inconsistent with the continuation
      • of the employment contract
      • intoxication at work;
      • refusal to carry out a lawful and reasonable instruction Regulation 1.07, Fair Work Regulations 2009

equal

Fair dismissal also includes where your employer has reported the alleged theft, fraud or violence to the police on reasonable grounds.

If you were not summarily dismissed your employer should have:

      • given you a valid reason for why your employment is at risk based on your conduct or capacity only;
      • given you a verbal or written warning if there is no improvement in your conduct or capacity;
      • provided you with an opportunity to respond to any warning and to give you a reasonable chance to rectify the problem including providing you with additional training and articulating their expectations; and
      • allowed you to have a support person to assist in any disciplinary discussions.

Your employer is required to provide evidence of compliance with the Small Business Fair Dismissal Code if you file an unfair dismissal application (Small Business Fair Dismissal Code – Procedural Matters).

There is a Small Business Fair Dismissal Checklist that provides further guidance about consistency with the Code.

 

  1. Your dismissal must not have been a genuine redundancy(section 389) Your dismissal will not have been a genuine redundancy if it would have been reasonable for you to be redeployed within your employer’s enterprise or within an associated entity of your employer (section 389(2)).Your dismissal will have been a case of genuine redundancy if:
    • your employer no longer required your job to be performed by anyone because of changes to the operational requirements of their enterprise (section 389(1)(a)); AND
    • your employer complied with any obligation in a modern award or enterprise agreement that applied to your employment to consult about the redundancy (section 389(1)(b)); AND
    • it was not reasonable to redeploy within employers enterprise agreement
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