The Law Handbook 2024

Chapter 11.6: Protection for your rights at work 1069 Under sections 382–384 of the FWAct, an employee is protected from unfair dismissal if the following applied to them at the time they were dismissed: • the employee had completed a minimum period of employment of: – one year for an employee of a small business employer (as defined above); or – six months for an employee of a business other than a small business employer; and • one of the following applied to the employee: – the employee was covered by a modern award, – the employee was covered by an enterprise agreement, – the employee’s income was less than the high- income threshold of $167 500 (as of 1 July 2023), or – the employee was a regular casual employee of a business other than a small business employer and the employee was employed for more than six months and had a reasonable expectation of ongoing employment on a regular and systematic basis. Remedies for unfair dismissal Reinstatement The primary remedy for an unfair dismissal is to reinstate the employee to the same position they held before they were dismissed (or to a comparable position) (s 390 FW Act). In certain circumstances, the FWC has the power to reinstate a worker to an equivalent position with an associated entity of the employer (s 391(1A) FW Act). A reinstated worker can seek an amount that represents the wages they lost between the date of their dismissal and their reinstatement. A reinstated worker is entitled to have their employment benefits continue to accrue without loss of continuity. Compensation Where reinstatement is inappropriate (e.g. where tensions in a workplace would be insurmountable if the dismissed employee returned to work), the FWC may order the employee to be compensated instead of reinstated (s 390(3) FW Act). The maximum compensation payable to an employee covered by an award is six months’ wages. For an employee not covered by an award, the compensation payable is half the amount of the high-income threshold ($167 500 as at 1 July 2023) or six months’ wages, whichever is less (s 392(5) FW Act). Procedures for applying to the FWC for a remedy for unfair dismissal Time limits An application for a remedy for unfair dismissal must be submitted to the FWC within 21 days after the day on which the dismissal took effect, or such period as the FWC allows (s 394 FW Act). This time limit can be extended. The matters that can be taken into account for an extension of time to lodge an application are in section 394(3) of the FW Act. Importantly, to receive an extension, the applicant must show that there were exceptional circumstances. Before the unfair dismissal is considered A number of matters must be decided by the FWC before the merits of an unfair dismissal are considered. These matters are: • whether the application was made within 21 days or such further period as the FWC allows; • whether the person is protected from unfair dismissal; • whether the dismissal was consistent with the Dismissal Code (where relevant); and • whether the person was dismissed because of a genuine redundancy (s 396 FW Act). Conciliation conference For a person who has applied for a remedy for unfair dismissal, the first step is usually to have a telephone conciliation conference with the employer and a FWC conciliator. In a conciliation conference, each party can negotiate in an informal manner and can explore the possibility of reaching an agreed settlement. FWC hearing If a matter is not resolved at a conciliation conference, then it usually proceeds to arbitration (often called a ‘hearing’). Unlike in a conciliation conference, a decision is imposed on the parties at the conclusion of a FWC hearing by a FWC member. The FW Act gives the FWC considerable dis- cretion in relation to the method of finalising