The Law Handbook 2024

1070 Section 11: Rights, activism and fair treatment at work claims. Appeals to a full bench of the FWC (three FWC members) can be made where there has been an error of law or a significant error of fact (s 400 FW Act). Costs In an unfair dismissal matter, the FWC can only award costs against an applicant if an application was made vexatiously or without reasonable cause, or if it should have been apparent to the applicant that the application had no reasonable prospect of success (s 611 FW Act). In an unfair dismissal matter, the FWC can only award costs against a respondent if the response to an application was made vexatiously or without reasonable cause, or if it should have been apparent to the respondent that the response had no reasonable prospect of success (s 611 FW Act). Generally, costs in a matter under the FW Act, including an unfair dismissal application, can be awarded to a party if the other party caused those costs to be incurred because of an unreasonable act or omission of the other party in connection with the conduct or continuation of the matter (s 400A FW Act). Costs can be awarded against a lawyer where the lawyer caused the other party to incur costs by some unreasonable act or omission, or because the lawyer encouraged a person to start, continue or respond to a matter when it should have been apparent to the lawyer that the person had no reasonable prospects of success (s 401 FW Act). More information The FWC’s Unfair Dismissal Benchbook provides detailed information about the law and procedures of unfair dismissal cases. The FWC’s Fair Hearings Practice Note describes the procedures to be adopted in a hearing in the FWC (see www.fwc.gov.au/ hearings-decisions/practice-notes/practice-note- fair-hearings) . Common law claims for wrongful dismissal Employees who are not entitled to bring proceedings for unfair dismissal (see ‘People protected from unfair dismissal’, above) may still be entitled to bring proceedings elsewhere for wrongful termination of their contract of employment. If a contract is for a fixed period, it terminates when that period expires; no special notice is required. If a contract is for a fixed period and the contract is terminated by the employer before the end of the fixed period, the employee may be able to sue for damages relating to the remainder of the fixed period. This will not occur if the contract contains a provision allowing earlier termination for cause and the employer can show that it had a valid, lawful reason to terminate the employment contract. If the contract is not for a fixed period, and the employee is dismissed, or if the employee is dismissed before the end of the contract, then the employee may be able to take action for wrongful dismissal. In the absence of misconduct or any other circumstances justifying immediate dismissal, an employee is entitled to be given notice in accordance with the written contract of employment (if any). If there is no express term in the contract for the period of notice, an employee is entitled to rely on an implied term of reasonable notice. The question of what is ‘reasonable notice’ depends on the employee’s circumstances (including their position, seniority, salary, length of service and age). An employee who can show that their dismissal was wrongful has a claim for damages. The amount of damages may relate to the wages that could have been earned during the ‘reasonable’ period of notice, taking into account whether the employee has subsequently found work. Suspensions and stand downs Suspensions and stand downs under common law At common law, an employer does not have the right to suspend or stand down employees without pay when they cannot be usefully employed. Unless there is a provision in the contract of employment or award to the contrary, an employer who cannot usefully employ their employees has the alternative of either paying them wages during the period or dismissing them. In dismissing an employee in these circumstances, an employer should take careful note of the unfair dismissal provisions. Some awards permit deductions of pay where employees cannot be usefully employed for reasons such as a strike, a breakdown of machines, or a stoppage of work for which the employer cannot reasonably be held responsible.