1. Lodgement (Form F2)
You lodge an unfair dismissal application within 21 days of the dismissal taking effect. There is an application fee, which is indexed annually. The Commission can waive it on grounds of financial hardship, and where you do not have grounds for a hardship waiver, we cover it. Either way, you do not pay the application fee.
2. The employer responds (Form F3)
The employer files a response, which may include jurisdictional objections: that you were outside 21 days, that you did not serve the minimum employment period, that you were over the high income threshold, that it was a genuine redundancy, that you were not dismissed at all.
Jurisdictional objections are common and are often where the matter is really decided.
3. Conciliation
A telephone conciliation conference conducted by a member of Commission staff, usually within a few weeks. It is informal, confidential, and without prejudice. The conciliator does not decide anything. They help the parties negotiate.
This is where most unfair dismissal matters end. It is also where a paid agent is most useful, because permission is not required for a representative to participate in a staff-conducted conference in an unfair dismissal matter.
Most matters settle here for an amount that reflects what both sides think a hearing would produce, discounted for cost, delay and risk. There is more on realistic outcomes on our compensation page.
4. If it does not settle: conference or hearing before a Member
The matter is allocated to a Commission Member. There may be a determinative conference or a formal hearing, with witness statements, submissions, and cross-examination.
Representation before a Member requires permission under s.596(2). The Commission may grant it if representation would allow the matter to be dealt with more efficiently given its complexity, or if it would be unfair not to allow it because you cannot represent yourself effectively, or if it would be unfair not to allow it having regard to fairness between you and the employer.
Applicants are told not to assume permission will be granted, and to be ready to proceed unrepresented if it is refused. We will tell you honestly whether we think permission is likely in your matter.
5. Decision and remedy
If the dismissal is found to be unfair, the Commission considers reinstatement first, and compensation only if reinstatement is inappropriate.
6. Appeal
Appeals require permission and go to a Full Bench. They are not a second bite.
How long does it take?
Most matters reach a conciliation conference within about 3 to 6 weeks of lodgement, which is generally fast compared with the courts. Matters that proceed to a hearing before a Member take longer.
Costs
Costs orders are unusual. The Commission can order costs where an application was made vexatiously or without reasonable cause, or where it should have been obvious it had no reasonable prospect of success, or where costs were caused by an unreasonable act or omission. Costs can also be ordered against a lawyer or paid agent who caused them.