Unfair dismissal

Strict time limits apply. If you want to make an unfair dismissal application to the Commission, you must do so within 21 days of the date you were dismissed. The day you were dismissed will usually be either the last day you worked or when you were told you were dismissed (whichever is later).

If the time limit is nearly up since you were dismissed, you must act quickly. It is possible to make your application over the telephone in this situation

If you do this you do not need an application form. You can:

• telephone the Fair Work Commission Help Line on 1300 799 675
• give the basic details of your application over the telephone
• pay your application fee by credit card over the telephone.

The Commission will then send you a partly completed application form and ask you to complete and return it within 21 days. If you cannot afford to pay the application fee, the Commission will also send you a waiver form for you to complete along with your application.

If you do not complete and return the application within that time, your application may be out of time and the Commission may not be able to consider it.

After you apply, the Fair Work Commission (the Commission) will send the employer a notice telling them that you have made an unfair dismissal application. The notice will include:

• a copy of your application
• a document setting out when the conciliation will happen (a notice of listing)
• a Form F3 - Employer's Response to Unfair Dismissal Application. 

Your employer must fill out form F3 to respond to your application.

In the form, your employer must state:

• its name and address
• the dates you were employed
• the reason(s) you were dismissed
• its response to the application
• any jurisdictional or other objections to the application (for example: that the application was filed too late, or the employee was not covered by national unfair dismissal laws)
• the number of employees that it employed when you were dismissed.

Your employer must return the form to the Commission and send a copy to you before the conciliation.

The different ways your employer can send you a document are:

• by email, if you put an email address on your application
• by fax, if you put a fax number on your application
• by registered post or express post to the address you put on your application
• by leaving it with you or any person apparently over the age of 15 years at your home.

If you do not receive a copy of your employer's response, you should contact the Commission.

Sample: Sample - Form F3 - Employer's response to unfair dismissal application

If your employer does not file a form F3 with the Commission, the conciliation that has been listed for your matter will still go ahead at the scheduled time.

A jurisdictional objection is when your employer says that there are legal reasons why the Commission cannot deal with your case. For example, your employer may say that you are not able to make an unfair dismissal application because you did not complete the minimum employment period or you made your application more than 21 days after the dismissal.

If your employer has a jurisdictional objection about your application, your case will still go to a conciliation.

For information about jurisdictional objections, see Hearing, below. 

For more information about when you can make an unfair dismissal application, see Can you apply? and What is unfair dismissal?

If your employer simply says in their response that they disagree that you were unfairly dismissed, this is not a jurisdictional objection. If your employer says that they object to your application, or you do not understand anything in the employer's response, you should get legal advice.

If your employer has claimed that you are not able to make an unfair dismissal application, and you were unable to resolve this issue at conciliation, there may be a separate 'jurisdictional hearing' about whether the Commission is able to consider your case. This may happen:

• before the main hearing
• at the same time as the main hearing, or
• 'on the papers', this means that you send documents to the Commission to consider and there is no face to face hearing​

After the jurisdictional hearing, the Commission may:

• dismiss your application if you are not eligible to apply.  For more information, see Can you apply?
• decide that you are eligible to apply and continue with a hearing. The Commission may hear the case on the same day or on another day. In some cases, the Commission may give you and your employer some time to try and negotiate the case.

A jurisdictional hearing is run the same as any other type of hearing at the Commission.

If you or your employer are not happy with the decision made by the Commission, you may ask for the case to be stopped (called 'a stay of proceedings') and appeal the decision to the Full Bench (three members) of the Commission.

For more information, see Appeals below.

At a hearing, you will be given a chance to present your evidence (including any witnesses). The employer will also have the chance to present their evidence. After this, a member of the Commission will make a decision in your case and make orders. 

If the hearing is a jurisdictional hearing, the orders will be about whether the Commission is able to consider your case.

 If you are at the final hearing, the orders will be about whether you were unfairly dismissed (and what should be done if you were). The orders made could include:

• An order that you be reinstated to your job
• An order that you are paid compensation.

The Commission will not make orders that the employer write you a reference or pay you other amounts of money they owe you (like underpaid wages). Orders are only about unfair dismissal. You would have to start a second case to get orders about unpaid wages.

Before the hearing you should start preparing your case. The Commission will send you:

• a Notice of Listing that tells you the date of the hearing
• instructions on what you must do before the hearing (for example, file witness statements by a certain date).

These instructions are called 'directions'. For more information, see Directions, below​.

For more information, including tips for preparing your case, see: Step by step guide - Preparing for the hearing.

What are directions?

When you are sent a Notice of Listing for a hearing, you will also be given directions to prepare your case for the hearing. Directions are written instructions from the Fair Work Commission (the Commission) about preparing, filing and serving (formally giving the other side) documents.

What directions will the Fair Work Commission make?

The usual directions are:

• The applicant (the employee) should prepare an outline of submissions and any witness statements.
• The applicant should file the outline of submissions and any witness statements with the Commission and serve these on the respondent (the employer) by the date set by the Commission.
• The respondent should prepare an outline of submissions and any witness statements.
• The respondent should file the outline of submissions and any witness statements with the Commission and serve these on the applicant by the date set by the Commission.

This means that you should prepare:

• an outline of submissions (this is a summary of your arguments about your case)
• witness statements for yourself and for any witness that you want to bring to the hearing.

If there is a good reason why you cannot follow the directions, you should contact the Commission straight away.

What happens if you do not follow the directions?

If you have not kept to the directions, the Commission will send you a notice telling you to attend a non-compliance hearing. This is usually done by video link or telephone.

At the non-compliance hearing you may be asked:

• to explain why you did not follow the directions
• when you can do the things in the directions.

You may be given another chance to follow the directions. If you still do not follow the directions, your case may be 'struck out'. This means that the Commission has ended your case. If this has happened to you and you want to continue you case, you should get legal advice straight away.

If you decide that you want to use additional witness statements or evidence at the hearing that you did not file and serve by the date set in the directions, the respondent may object to you using this evidence. The Commission member hearing your case will then need to make a decision about whether you can use that evidence. If the Commission member will not let you use your evidence, it is possible to ask for an adjournment to give the other side time to consider your evidence so that it can be used in your case. If the Commission member does not give you an adjournment you will have to continue your case without that evidence or settle your case with the other side.

What happens if the respondent does not follow the directions?

If you have not kept to the directions, the Commission will send you a notice telling you to attend a non-compliance hearing. This is usually done by video link or telephone.

At the non-compliance hearing you may be asked:

• to explain why you did not follow the directions

• when you can do the things in the directions. 

You may be given another chance to follow the directions. If you still do not follow the directions, your case may be 'struck out'. This means that the Commission has ended your case. If this has happened to you and you want to continue you case, you should get legal advice straight away.

If you decide that you want to use additional witness statements or evidence at the hearing that you did not file and serve by the date set in the directions, the respondent may object to you using this evidence. The Commission member hearing your case will then need to make a decision about whether you can use that evidence. If the Commission member will not let you use your evidence, it is possible to ask for an adjournment to give the other side time to consider your evidence so that it can be used in your case. If the Commission member does not give you an adjournment you will have to continue your case without that evidence or settle your case with the other side.

What is an outline of submissions?

An outline of submissions is a document that explains your case to your employer and to the Fair Work Commission (the Commission). It summarises the arguments and main points you will make at the hearing.

If you have someone representing you in your case, they will write the outline of submissions. If you are representing yourself you will need to write it.

You can help your case by making sure your outline of submissions is easy to read and understand. 

Plan what you want to say

Think about what topics you want to cover. One good idea is to write a list of headings first so that you do not forget anything.

Some issues you might want to cover are:

• Your employment (including how long you were employed and your title and duties) 
• How you were dismissed
• Why you think your dismissal was unfair
• What evidence you plan to bring to the hearing
• Your response to any arguments made by your employer about you not being able to make an application (jurisdictional objections). 

Research

You should refer to any sections of the Fair Work Act that deal with your claim. For more information on how to find out about the Fair Work Act and other employment laws, see Finding employment law.

Start with a heading

The outline of submissions should start with a heading that gives the name of your matter and the matter number. You can find these on the top of your Notice of Listing for the hearing. 

For example:

Atherton, Charlotte v Department Stores Pty Ltd 
Matter Number: U2011/00000 
Outline of Submissions

Number paragraphs and pages

Number each paragraph through the document starting at 1 for the first paragraph. Number the pages. This way you can quickly refer anyone to a particular section in your submissions.

Get someone else to read it 

Get someone else to read over what you have written to look for errors, typos and make sure that everything is easy to understand.

More help

If you are unsure about what to put in your submissions or how to answer an issue raised by the employer, you should get legal advice.

For more help on how to write documents, see Reading and writing legal documents. 

Evidence is information or an object that helps to prove or disprove a fact.

For example:

• a letter from an employer to an employee telling them they were dismissed could be used as evidence that the employee was sacked
• a pay slip could be evidence of an employee's wages
• an employee's statement about what happened at a meeting would be evidence that the meeting occurred and what it was about.

Evidence can be:

• documents such as emails, text messages, letters and recordings, or
• testimony (verbal or written statements) of a witness.

For more information, see Evidence.

After the hearing, the Commission member who heard your unfair dismissal case will make a decision.

The Commission member will usually reserve their decision. This means that a decision is not given on the day of the hearing. Instead, the Commission member will go away and think about the case and make a decision later. Sometimes it can take several months for the Commission to make a decision about your case.

The Commission will contact you when the Commission member is ready to tell you their decision. The Commission member will give you and the employer a written decision that gives reasons for the orders that they have decided to make.

In some cases, the Commission member will make an order that one party pay the other's legal costs of the case.

Costs are:

• lawyers fees, and
• the expenses involved in running a case, such as fees for subpoenas, witnesses, and getting copies of records and expert reports. 

If someone wins a case, they may ask for an order that the other party pay their costs.

Does the Commission order costs?

The Commission is a 'no costs jurisdiction'. This means that usually the Commission will not make orders about costs after conciliation or a hearing. Each party will have to pay their own legal costs and expenses. 
 
Although costs orders are rare, in some cases, the Commission will make orders about costs after a hearing.

If your employer doesn't follow an order made by the Commission, you may be able to apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia to enforce the order. Both Courts can:

• fine your employer
• award compensation for loss you have suffered because your employer didn't follow the Commission's orders
• order reinstatement
• make other orders.

If your employer does not follow an order made by the Commission and you want to enforce the orders, you must apply the Court within six years of the breach. If you're not sure how to apply, or whether you're within the time limit, you should get legal advice.

If your employer does not follow an order to reinstate you, they may be in contempt of court. It is possible for the Federal Court of Australia or Federal Circuit and Family Court of Australia to punish parties that are in contempt of court.

If the Court has made orders about your employer paying you money and they have not done so, there are things you can do to try and force them to follow the orders. This process is called 'enforcement'.

There are different types of enforcement options, including:

• a writ / warrant for seizure and sale of property
• order for possession of land or delivery of goods
• charging order (eg charge over shares or money in a financial institution)
• redirection / attachment / garnishee of debts or earnings / instalment order
• enforcement hearing / oral examination / means of inquiry.

To enforce a judgment of the Federal Circuit and Family Court of Australia, you need to:

1. apply to the Federal Court of Australia
2. take action through the Supreme Court of NSW.

Apply to the Federal Court of Australia

To apply to the Federal Court of Australia, you need to file:

• a Request for Enforcement (Form NCF6)
• an Affidavit (Form 59)
• supporting documents.

You can get a copy of the:

• Request for Enforcement form from the National Court Framework (NCF) Forms page on the Federal Court of Australia website, and
• Affidavit on the Forms under the Federal Court Rules 2011 page on the Federal Court of Australia website.

Your Request for Enforcement and supporting documents should be filed via eLodgment.

You do not have to pay a filing fee.

A registrar will consider the Request for Enforcement and, if satisfied that the request and supporting documents are in an appropriate form, issue the enforcement process.

For more information, see the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF) on the Federal Court of Australia website.

Take action through the Supreme Court of NSW

Once the enforcement process is issued any further steps to enforce and execute the judgment should then be taken in the Sheriff's office of the Supreme Court of NSW.

If the judgment debt is more than $10,000 and your employer is an individual, you can apply to a court to have them declared bankrupt. Before taking this action, you should get legal advice. This is an expensive and complex way of enforcing the judgment. 

If your employer is a company, it can be wound up. To wind up a company you must show that it is insolvent (unable to pay its debts). This can be done by issuing a statutory demand. If the judgment debtor company does not respond to a statutory demand within 21 days you can file an application for a winding up order. Before taking this action, you should get legal advice. This is an expensive and complex way of enforcing the debt.

Enforcing court decisions is complicated and you should get legal advice about the best steps to take.