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My employee filed an unfair dismissal claim. What do I need to do? Employer guide

Facing an unfair dismissal claim is a daunting prospect for any business. You are not alone. This guide is designed to give you peace of mind, in understanding the process and what you must do.

Once the employee has filed an Unfair Dismissal application with the Fair Work Commission, you will have 7 days to file a response using a Form F3 together with supporting documents in your case.

The employee will be claiming that the dismissal was harsh, unjust or unfair. In the response form, you will need to address these legal claims.

Reasons an employer can object to an unfair dismissal claim include

There are some other reasons why an employer can object to an unfair dismissal claim. They are:

1- The employee was not dismissed: If an employee resigns or abandons their employment (eg- disappears on holiday without approval or leave), they have not been dismissed.

2- Late application: The employee has 21 days from the date of dismissal to file an unfair dismissal claim. If the employee files the unfair dismissal application later than 21 days from the date of dismissal, they are out of time. Extensions are very rarely granted.

3- It was a case of genuine redundancy: The employee's position was terminated as a genuine redundancy.

4- You are a small business: You are a small business (less than 15 employees) and have followed the Small Business Fair Dismissal Code.

5- The worker is not protected by unfair dismissal laws because they are not a national system employee: Some classes of workers are not covered by unfair dismissal. They are:

a- Employment type: Independent contractor, unpaid volunteer, unpaid placement for university or TAFE.

b- Labour hire staff: Labour-hire employees can only file unfair dismissal claims against the employment agency, not the host business where they have been posted to do the work.

c- Employer category: State public sector employees members of the WA police force are not protected by unfair dismissal laws.

6- Earnings threshold: The employee's salary is above the high income threshold of $158,000 per year for protection from unfair dismissal.

For more information, book a free 20 minute consultation with an employment lawyer from our practice on (03) 8691 3128.

Best wishes, The Legal Enablers Team


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