SHOULD YOU APPLY TO THE FEDERAL COURT OR THE TASMANIAN COMMISSION

If you are:

• a Commonwealth Public Sector employee;
• a Territory employee;
• a Federal Award employee employed by a constitutional corporation; or
• a Federal Award employee who was a waterside worker, maritime employee or flight crew officer working between the various states or territories of Australia or overseas

then you would need to make an application for unfair dismissal to the Federal Court of Australia. You have twenty one (21) days to make such a claim from the date of termination of your employment.

If however you are an employee but in the private sector, i.e. a private employee, or a State employee then you can make an application to the Tasmanian Industrial Relations Commission.

If the basis of your employment, as set out above, is such that you ought make an application to the Federal Court of Australia then there are a number of groups of employees that are excluded from making a claim for unfair dismissal.

They include:

• employees engaged for a specific period of time or for a specified task;
• some employees serving a period of probation or qualifying period;
• some employees engaged on a casual basis for a short period;
• some trainees (but not apprentices);
• employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances;
• some workers in the building, maritime and meat industry;
• employees who are not employed under Federal Award conditions (or certified agreements, an AWA or an old Industrial Relations Act agreement) and whose remuneration is over the amount of $64,000.00 per annum plus indexation – currently $69,200.00.

These restrictions are not included in the Tasmanian Industrial Commission, therefore if you are a private employee or a State employee then you can make an application to the Commission in almost any case.

If you cannot easily determine from the above whether or not your employment is such that it allows you to make an application for unfair dismissal then we suggest you seek the advice of a solicitor or see your union representative.

If you decide that you need to make an application for unfair dismissal the procedure is:

• fill out a form R18 and lodge it with the Federal Court registry;
• the court will issue an acknowledgment of the application which will also advise you that the claim has been served on the employer;
• the employer then files a notice of the employer’s appearance;
• the court issues a notice of listing referring your claim to a conciliation conference;
• you attend the conciliation conference to discuss the matter with your former employee and whoever is representing them;
• if the matter is resolved at the conciliation conference you file your agreement and the matter is at an end;
• if the matter does not resolve at the conciliation conference you may elect to have a claim alleging harsh, unjust or unreasonable dismissal referred to the commission for arbitration or a claim for unlawful termination to the Federal Court of Australia;
• an election can be made in writing within seven (7) days after the commission has issued a certificate recording that the claim failed to resolve at conciliation and that conciliation is complete; and
• you can elect to have a solicitor present at the hearing and once the hearing has been finalised then the commission or court hands a decision down and either party may make application for costs.

It is important to remember that in these cases in the Federal Court, applications for costs are only granted in exceptional circumstances.

The procedure is similar if you make an application for unfair dismissal to the Tasmanian Industrial Relations Commission:

• if you are an employee when you want to make the application you will have to fill out a form called a “Section 29(1)”. However, if you are a former employee you will have to fill out a Section 29(1A) form.
• you send the form to the commision;
• the commission usually forward a copy of the form to the employer within twenty four (24) hours of receiving the application;
• you then receive a notice listing the matter for a hearing.

As previously indicated, it is not usually the case that these matters are set down for conciliation. Even if both parties think that conciliation would assist what usually occurs that some time is set aside before the commencement of the hearing for there to be a brief conciliation conference.

These cases can be dealt with quickly. You can file an application and it can be listed for hearing some six weeks later. However, if either party needs more time to prepare or to try and resolve the matter then it is usually the case that the commission will give that party more time.

You have to remember that you only have twenty one (21) days to lodge an application for unfair dismissal with the Federal Court and you only have fourteen (14) days to lodge an application for unlawful termination with the Tasmanian Industrial Relations Commission. There are provisions in both jurisdictions for a former employee to make an application to the Federal Court and Tasmanian Industrial Relations Commission respectively to extend the time allowed to make an application. However, it is only in certain circumstances that such extensions of time are granted. If you are outside the time limit then we suggest that you contact your solicitor as soon as possible.

If you are discussing the matter with your former employer, whether at an conciliation conference or before a hearing, remember your roles have now changed. Do not be intimidated by the fact that this person was once your employer. The court and commission officers are usually very helpful. The agreement you can reach depends on the amount of time you were employed and the availability of similar employment.

HAVE YOU BEEN DISMISSED?

You have to prove that your employer has sacked you before the Federal Court or the Tasmanian Industrial Relations Commission has jurisdiction, i.e. power, to hear your case. This can sometimes be not as easy as it sounds. For example, a worker in a sawmill in Tasmania was told by his employer to “F… off” and the worker subsequently applied to the Australian Federal Court alleging that he was unfairly dismissed. The issue for the Court was whether or not he was dismissed. It was proven that the words were spoken to the worker. However, it was also proven that they were words that were commonly used in the course of work being performed in the sawmill and were commonly understood by employees to simply mean “get out of my way for a while”. Thus, the Court found that the worker left his place of employment of his own volition. The Federal Court thereafter had no jurisdiction or power to deal with the matter.

If you resign from your employment it is unlikely that you have a case but if pressure is put on an employee by the employer that they had better resign or they will be sacked then it is likely that that may be seen by the Courts as being a dismissal.

WHAT IS AN UNFAIR DISMISSAL

Before you can have a valid unfair dismissal case you also have to prove that you were an employee. This can be quite complex. For instance, you are not an employee if you were working under a contract through a labour hire agency or you were engaged and worked as an independent contractor or sub-contractor. It does not really matter whether or not your employer calls you a contractor or an employee if you are employed on this sort of basis. It is a matter of law as to whether you were a contractor or an employee. This is a complex issue and if you are unsure about whether or not you are an employee or a contractor then you should see a lawyer or your union representative.

Once you have proven that you have been dismissed then you will also have to prove that your dismissal was harsh, unjust or unreasonable or that the termination of your employment was unlawful because you were dismissed for some other reason that is not permitted by law.

Do you have a case for being unfairly dismissed?

If you make an application in the Federal Court then you will have to prove that your dismissal was harsh, unjust or unreasonable. If however you make an application to the Tasmanian Industrial Relations Commission, then although the Tasmanian Industrial Relations Act does not state that you must prove that your dismissal was harsh, unjust or unreasonable, it is generally the case that the Tasmanian Industrial Relations Commission applies similar principles to that applied in the Federal Court. In determining whether or not you have been unfairly dismissed the Court or Commission looks at all the circumstances surrounding your dismissal in order to ascertain whether or not your employer has been fair in his/her dealings with you. You will have to get together some witnesses (if any) and they can come to Court to give evidence on your behalf. Some of the things which may be considered in such a claim are as follows:-

• What your relationship was like with other employees, customers and your employer;
• What was the nature and quality of your work;
• Was your work performance up to scratch;
• Had you received proper training and supervision to do your job;
• Were you given any warnings or reprimands;
• Were you given a chance to respond to any allegations;
• Were you given reasons for your dismissal;
• Did your employer do proper investigations into allegations of misconduct;
• Have other employees at the workplace been treated consistently in similar circumstances;
• Were you paid all your entitlements after you were dismissed.

It is some time difficult to assess whether or not the circumstances of the case will amount to unfair dismissal.

There are so many different sets of circumstances that may surround a dismissal that you may need to seek some other assistance in relation to determining whether or not you do in fact have an unfair dismissal case. In that regard we suggest you see your union representative or solicitor.

WHAT YOUR EMPLOYER CANNOT DISMISS YOU FOR

If you make an application to the Federal Court for unfair dismissal then it is important to remember that the Act prohibits termination of employment on any one of the following grounds:-

• temporary absence from work because of illness or injury within the meaning of the regulations;
• Trade Union membership or participation in Trade Union activities outside working hours or with the employer’s consent during working hours;
• non-membership of a Trade Union;
• seeking office as, or acting or having acted in the capacity of, a representative of employees;
• the filing of a complaint, or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
• race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
• refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;
• absence from work during maternity leave or other parental leave;

Basically, if you are ill for more than three (3) months or you total absences within a twelve (12) month period are more than three (3) months, then this is not temporary absence unless you are on paid sick leave for the duration of the absence.

If any of the above applies to you and is the reason that you were dismissed and you have made an application to the Tasmanian Industrial Relations Commission then the situation is a little different. This is because the prohibitions referred to above are not outlined in the Tasmanian Industrial Relations Act. However, many of them are prohibited by a different Act. For example, Tasmania has the Disability Discrimination Act which prohibits termination of employment on some disability grounds. So if it is illegal pursuant to another Act in Tasmania to terminate your employment on certain grounds then that can be used as a grounds for pursuing a claim for unfair dismissal in the Tasmanian Industrial Relations Commission.

WHAT YOU MAY BE ENTITLED TO RECOVER

If the commission or court finds in your favour in either the Federal Court or the Tasmanian Industrial Relations Commission then the following remedies may be ordered:

• reinstatement if it is considered appropriate or;
• if reinstatement is not appropriate an order that the employer pay you an amount of money. In the Federal Court/Commission a maximum amount is subject to various conditions but in general it must not exceed the amount you are paid by the employer in the six months prior to the termination of your employment. However, in the Tasmanian Industrial Relations Commission the Commissioner can order the employer to pay the employee or former employee compensation of any amount that the Commissioner determines appropriate;
• in the Federal Court/Commission reinstatement with an award of compensation (subject to the above limitations) for loss suffered.
• if it is the case that reinstatement is inappropriate then the Commission or Court in deciding how much money to award you will take into account a number of factors.

Some of them are as follows:-

• your efforts to mitigate your loss. This means, that after you were unfairly dismissed did you try and obtain another job? If you made no attempt to seek alternative employment then that fact may not be viewed favourably by the Commission or Court. If however you have sought employment and you have been unable to obtain a job then a Commissioner will take that into account again in determining what amount of compensation to award you. Of course, if you seek alternative employment and you are successful in doing so, then your loss is less than if you sought for employment and could not obtain it. Obviously, you are earning more money if you are employed than if you are not employed;
• your length of service with that employer;
• the effect on the employer of any order; and
• the loss that you have suffered brought about by the termination of your employment.