Employees and contractors can access the Fair Work Commission (FWC) for a variety of reasons, writes TGB’s Belal Moraby.
The FWC is the national workplace relations tribunal. It is independent and has the power to deal with minimum wages, enterprise bargaining, industrial action, actions affecting employment and termination of employment and other workplace issues.
Employees who have been dismissed may be able to seek relief subject to certain criteria by lodging an Unfair Dismissal Application to the FWC.
Unfair dismissal occurs where the dismissal was harsh, unjust or unreasonable. The dismissal cannot be a case of genuine redundancy. And in cases involving small businesses (less than 15 employees) there needs to be a contravention of the Small Business Fair Dismissal Code.
For South Australian employees the FWC covers only people employed by private enterprise or by corporations. Those people employed in local Government or State government may be covered by the Industrial Relations Commission of SA.
An application to the FWC must be lodged within 21 days of the dismissal coming into effect. This also applies in the case of the State legislation.
To be eligible an employee must have completed a minimum term of at least six months (or 12 months in the case of a small business employee). If an employee earns more than the high income threshold they must also be covered by an award or agreement.
If an employee has not been dismissed but alleges that there has been some other contravention ie. of the general protections of the Fair Work Act 2009 he or she can make an application to the FWC to deal with the dispute.
The vast majority of unfair dismissal cases resolve at conciliation stage but if a dispute remains unresolved one has the option to proceed to Arbitration or a determinative conference.
If the FWC is satisfied that an employee was unfairly dismissed then it may order the employee’s reinstatement together with any lost remuneration or payment of compensation to the employee.
A person who brings a case before the FWC generally must meet their own costs. They will generally have to seek permission to be legally represented. However, there is nothing preventing them from obtaining legal advice or having a lawyer draft documents before the hearing.
It is recommended to seek legal advice on whether you should lodge an Application in the FWC or the Industrial Relations Commission of SA.
If you live in South Australia or Western Australia and would like to know whether you are eligible to apply to FWA please contact Belal Moraby or Ian McLean for a free initial interview: (08) 8212 1077.