Making an unfair dismissal application: what can you expect?
The Fair Work Commission’s Annual Report for 2016-2017 has provided a number of statistics that shed light on what to expect when making an application to the Fair Work Commission (‘FWC’) for an unfair dismissal remedy.
According to the Annual Report, unfair dismissal applications are the largest category of applications received by the FWC each year, representing more than 40% of the total applications made to the FWC.
The FWC reports that the vast majority (93%) of unfair dismissal matters are either resolved by agreement of the parties through conciliation or withdrawn by the applicant. Only 2% of unfair dismissal applications are finalised by a decision about the merits of the case. Read the rest of this entry »
Calculating compensation
If you have been unfairly dismissed and the Fair Work Commission (‘FWC’) considers that reinstatement would be inappropriate, the FWC may make an order for compensation.
Under the Fair Work Act, there is a legislative cap on the amount of compensation that can be ordered. Where compensation is payable, it is capped at the lesser of 6 months’ pay immediately before dismissal or the equivalent of exactly half the current high income threshold. As of 1 July 2017, the unfair dismissal high income threshold was $142,000.00 meaning the maximum compensation that can be awarded is $71,000.00. Read the rest of this entry »
Unfair dismissal remedies: reinstatement vs compensation
If an employee has been unfairly dismissed, there are two potential remedies that may be ordered by the Fair Work Commission (‘FWC’): reinstatement and compensation.
Reinstatement is the primary remedy for unfair dismissals. According to section 391 of the Fair Work Act, an order by the FWC for reinstatement should relate to the position that the person occupied immediately prior to their dismissal, or an alternative position on terms which are no less favourable than the previous position. In circumstances where the position no longer exists with the employer, an order for reinstatement may be made to an equivalent position within an associated entity of the employer. Read the rest of this entry »
Is your resignation legally effective?
If you have resigned, in certain circumstances it is possible that you may have unfair dismissal remedies available to you.
A resignation is not legally effective if expressed “in the heat of the moment” or when an employee is in a state of emotional stress or mental confusion such that they could not reasonably be understood to be conveying a real intention to resign.
If an employer accepts a resignation made “in the heat of the moment” the resignation may be characterised as termination of employment at the initiative of the employer and could result in the employee having unfair dismissal rights, allowing the employee to be reinstated or compensated. If a resignation is made “in the heat of the moment”, the employer should clarify or confirm with the employee after a reasonable time that the employee genuinely intended to resign. Read the rest of this entry »
An Uber win in the Fair Work Commission
The Fair Work Commission (“FWC”) has recently handed down a decision, Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, finding that Uber drivers are independent contractors and not employees of Uber.
The applicant was an Uber driver and brought this case to the FWC seeking a remedy for unfair dismissal, after Uber terminated a Service Agreement that the parties had entered. For a finding of unfair dismissal to be made, it was necessary that the driver be an employee of Uber.
The FWC examined the relationship between the parties to determine whether the driver was an independent contractor or an employee. There is no single or decisive criteria to determine whether a contractual relationship is of employment or a contract for service. The court will consider a multitude of factors when approaching this question. Read the rest of this entry »