An unfair dismissal is legally defined as “unfair” if SAET finds that on the balance of probabilities the dismissal was harsh, unjust or unreasonable.
Who is involved?
You can make an unfair dismissal application if:
- you were employed by the State Government, a State Government business enterprise, or the local government sector
- you were dismissed from your employment at the initiative of the employer, were forced to resign because of the actions of the employer, or the employer substantially changed the basis of your employment.
You may be excluded from making a claim if you:
- are on probation
- are a casual worker
- are an apprentice
- are a non-award employee whose remuneration immediately before the dismissal took effect is $142,641 or more a year
- are covered by an award that makes specific rules concerning unfair dismissal.
If your employer is within the private sector, the non-government social and community services sector, the Commonwealth Public Service or is a university, the Fair Work Commission will deal with your claim.
What do I need to do?
If your case meets the requirements for SAET determination, as above, you must make a claim for unfair dismissal within 21 days of your dismissal becoming effective.
A dismissal generally takes effect on the last day that you work. However, an employer may continue to pay wages during a period of notice on termination but not require you to attend work. In this case the dismissal takes effect at the end of the notice period.
More often an employer will pay out any notice period on termination, so that the dismissal takes effect on the last day worked.
The 21-day time limit starts on the date your dismissal takes effect. If you miss this deadline SAET may not be permitted to deal with your claim unless there are exceptional circumstances.
What can I expect?
SAET aims to set down a conciliation conference within four weeks of the application being lodged. The conciliation conference is an attempt to try settle the matter by agreement. It is informal and private with each party given an opportunity to explain their position.
Both parties must attend the conference. If you are the employee who has made the claim you must attend in person, accompanied by a representative (a lawyer, union official, registered agent or other representative) if you wish.
The person appearing for the respondent must have the authority to bind the respondent to any settlement reached at the conference.
The Commissioner may during the conference speak to each of the parties separately to explore and develop settlement options. There will be no decision at this stage.
If SAET decides that you have been unfairly dismissed there are a number of orders that SAET can make, including that you as the dismissed worker:
- be re-employed to the same position
- be re-employed in a different position or capacity
- receive compensation (SAET must not order compensation exceeding 6 months’ remuneration at the rate applicable to the dismissed employee immediately before the dismissal took effect, or $71,321, whichever is the greater).
If you were dismissed from the public sector for misconduct, SAET may order that you are re-employed but receive some disciplinary action for your misconduct.
If at any time you wish to withdraw your application for unfair dismissal, you should file a Notice of Discontinuance and provide a copy to the employer.
What forms are relevant?
- A30 – Application – Unfair dismissal
- P60 – Response (Unfair dismissal)
These can be downloaded from the forms page.
Is there a cost?