In the first of the Unfair Dismissal Series we explored the concepts of procedural fairness in managing staff issues at work, including where those issues result in termination of employment, see; https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-1-what-does-fair-dismissal-look-like/ . This week in Part 2 of the Series we will explore the business responsibilities when a termination of employment results in an unfair dismissal claim.
Unfair Dismissal Claims Process
Employees have the right to lodge a Claim with the Fair Work Commission if they believe that their employment was terminated (or effectively terminated) by their employer in a way that was harsh, unjust or unreasonable.
Such Claims have to be lodged with the Fair Work Commission within 21 days of receiving notice of termination (though out of time claims are not automatically rejected – more on that below).
To actually lodge the Claim the employee completes what is called a Form F2, which outlines details of employment; start date, end date, employer, pay rate etc, as well as outlining how the employment relationship ended, why the employee considers the dismissal harsh, unjust or unreasonable as well as outlining what Remedies (reinstatement, compensation etc) the employee would like to “fix” the unfairness.
It is important to note that when an employee puts through a Claim to the Commission, it is not assessed or reviewed by the Commission in any way that looks at the nature of the dismissal in the first instance.
When the Commission receives a Claim it is reviewed to ensure only that the form is complete. What the Commission does then is open up a case, called a Matter, and forwards the Claim, and instructions for response to the business.
The fact that the Commission does not apply any lipmus test to the claim from the employee at this stage is an important thing to note. Many businesses find themselves at a complete loss to explain why they have received instruction to respond to a Claim that clearly falls short of the requirements or where it is the businesses belief that they met all the best practice steps.
In ACAPMAs experience this confusion is amplified when there are questions of eligibility or out of time, that to a common observer, would seem to make the claim invalid and should halt the process at that point.
For example, it is a requirement to access Unfair Dismissal Claims and Remedies, that the employee be employed for a minimum qualifying period (6 months as a standard, 12 months for businesses employing 15 people or less). It is surprising to most businesses that even when the employee confirms, in their Form F2, that they have not been employed for the minimum qualifying period, that the Claim is still passed to the business to respond to and is not automatically dismissed or rejected.
Similarly, in cases where the employee confirms, in their Form F2, that they had received formal warnings for the behaviour that resulted in their termination, that they attended a performance management meeting with a support person, that they had their comments heard, and that they were later provided with written notice of their termination and the reasons for it (essentially that their was an uncontested valid reason and an appropriate process followed), that Claim is still passed to the business to respond to and is not automatically dismissed or rejected.
This is a potentially frustrating element of the process, where even on the face of it there is no right to access the unfair dismissal provisions, the employee is given the benefit of the doubt, and the business is required to go through the arduous task of compiling a formal response. The rationale is that it is better to place this burden on the employers and potentially allow some claims that should not be allowed to proceed to proceed, at least to the Conciliation Conference stage, rather than potentially disallow a claim that may be valid.
When the business receives a Claim from the Commission, they will receive a copy of the employees Form F2 as well as a Notice of Listing.
The Notice of Listing will provide instruction that the business must respond to the Claim by completing the Form F3 (which is provided) and sending it to the Commission and to the employee (and any representative the employee may have listed on their Form F2). The time period for the business to submit their completed Form F3 is typically 7 natural days.
The Notice of Listing will also provide a date and time for a Conciliation Conference, and will instruct the business to provide the contact details of who will be on the Conciliation Conference telephone call.
Completing the Form F3
When completing the Form F3 the business should endeavour to provide as much detail, in a clear and unemotional way.
Much of the Form F3 is simple data collection; start date, termination date, employment instrument (Award) etc.
Other sections call for descriptions of reasons, timelines of interactions and responses to the claims that the employee has raised in their Form F2.
The business will also be asked in the Form F3 to indicate if there are any Jurisdictional Objections.
A Jurisdictional Objection is the business stating, that on the basis of the facts, the Commission should not be allowing the Claim to be heard. Some examples of Jurisdictional Objections include;
- that the employee has not met the minimum employment time qualification,
- that the application has been lodged more than 21 days after notice of termination (lodged with the Commission not provided to the business – there can be some delay in the Claim reaching the business),
- that the termination occurred as part of a genuine redundancy as well as other technical areas.
It is important to note that many of the Jurisdictional Objections will not, even after they are raised, cause a Claim to be rejected.
Most will in fact be “heard” by the Commission at the same time as hearing the merits or facts of the case, so raising a Jurisdictional Objection does not bring an end to the process – though Claims with Jurisdictional Objections will be categorised by more legal involvement if the Matter makes it past the Conciliation Conference stage to a Hearing, where the legal argument (with precedent and case reference) will need to be made for the Jurisdictional Objections and how they apply in this case.
Outline of Dismissal
The business will also be asked to indicate in the Form F3 the reasons for the dismissal and how these were communicated to the employee.
When undertaking this task it is best to provide information in a stacked fashion, whereby the business simply outlines the reasons for dismissal and then provides a detailed timeline of the behaviours, investigations, meetings, warnings and other responses that led up to the termination.
“1.1 The business notes that the employee was terminated for poor performance, and that the termination followed a series of performance management meetings, formal warnings and opportunities to improve performance. The business notes that the employee was aware that the behaviours would likely lead to termination of employment, that the employee was provided with notice of performance management meeting and its nature and was given an opportunity to have a support person present at the meeting, that the employee was given the opportunity to comment on the behaviours and impact the business decision, that the employee was provided with notice of termination in writing and that the reasons for termination were outlined in detail. As such the business notes that the termination was not harsh unjust or unreasonable. Please see below and attached for a detailed timeline of events and documents provided.
1.2 Timeline of Events
1.2.1 1/1/2000 The employee allowed faulty widgets to leave the business despite instruction and quality control. A customer complaint was the result. The business investigated and identified that the employee was regularly failing to meet the quality control standards of the business
1.2.2. 2/1/2000 A performance management meeting was called with notice and the employee was reminded that they could have a support person present.
1.2.3. 3/1/2000 At the performance management meeting, which was attended by the employee and their support person, the breaches were outlined and the employees comments sought. The employee noted that she was aware of the standards that had to be met and why they were important, but that she had just not been focused.
1.2.4. 4/1/2000 A Formal Warning Letter was issued to the employee outlining the expectations in quality control and highlighting that further breaches would likely result in termination of employment for poor performance – please see attached for a copy of the Formal Warning.
1.2.5. 1/3/2000 The employee again allowed obviously faulty widgets to leave the business resulting in another customer complaint. The business investigated and confirmed the breaches.
1.2.6. 2/3/2000 A performance management meeting was called with notice and the employee was reminded that they could have a support person present.
1.2.7. 3/3/2000 At the performance management meeting, which was attended by the employee and their support person, the previous breaches, meeting and Warning were reviewed, and the current breaches were outlined and the employees comments sought. The employee confirmed she was aware of the previous discussions and the expectation of the business, but had no comment on why the breaches continued.
1.2.8. 4/3/2000 A Termination of Employment Letter was issued to the employee outlining the previous meetings and warning and the current breaches, meeting and response. The Termination of Employment Letter stated the reason for termination was a pattern of poor performance and provided for the provision of 2 weeks payment in lieu of notice in line with the employees length of service and age, with termination effective immediately – please see attached for a copy of the Termination of Employment Letter.”
Response to Employees Claims
The business will also be asked when completing the Form F3, to respond to the individual claims made by the employee in their Form F2.
When undertaking these responses it is best to address each claim separately and in detail, even when the claims overlap or repeat themselves, which they often do.
“2.1. The employee claims that they were not aware that the breaches could result in termination. The business rejects this claim. The employee was informed that continued breaches could result in termination of employment at the performance management meeting of 3/1/2000 and this confirmation was provided in the Formal Warning Letter of 4/1/2000”
Response to call for Remedy
When responding to the Employee Claims, after addressing all claims the business should, in this section, again clarify why the business considers that the termination was not unfair, and then should address the employees requested Remedies.
“2.11. The business notes that the employee was terminated for poor performance, and that the termination followed a series of performance management meetings, formal warnings and opportunities to improve performance. The business notes that the employee was aware that the behaviours would likely lead to termination of employment, that the employee was provided with notice of performance management meeting and its nature and was given an opportunity to have a support person present at the meeting, that the employee was given the opportunity to comment on the behaviours and impact the business decision, that the employee was provided with notice of termination in writing and that the reasons for termination were outlined in detail. As such the business notes that the termination was not harsh unjust or unreasonable.
2.12. The business notes that the employee has, in their Form F2, called for a Remedy of compensation. The business notes that such a Remedy is inappropriate given that the termination was for a valid reason, followed a valid response and provided for procedural fairness.”
Lodging the Response
The completed Form F3, and any attachments (like Warning Letters, Termination Letter etc) should be saved as a PDF and emailed to the Fair Work Commission, to the employee and to the employees listed representative if applicable (lawyer or union).
This response must be made within 7 days of receiving the Claim and must include the contact details for the person from the business that will be on the phone for the Conciliation Conference.
Help with responding to an Unfair Dismissal Claim
ACAPMA Members are reminded that they can access assistance with responding to unfair dismissal claims as part of their membership. There is no additional cost for assistance with response.
Resources for responding to unfair dismissal claims can also be located on the Fair Work Commission website; https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/respond-to-an-application
Next Step: Conciliation Conference
After the business has responded to the Claim the Conciliation Conference is the last chance for the matter to be addressed by the employer and employee before it goes to a Hearing. We will explore the Conciliation Conference operation and approach in Part 3 of the Series on Unfair Dismissal.
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Elisha Radwanowski BCom(HRM&IR)