What can I claim in an unfair dismissal application?

You will be required to state what outcome you are seeking by lodging a FWC unfair dismissal application in question 2 of the FWC unfair dismissal application.

You may seek either reinstatement to your position or payment of compensation (section 390(1))

However you may only seek payment of compensation where reinstatement is inappropriate and compensation is appropriate (section 390(3)).

You should justify why you are seeking one form of remedy over the other and why the other remedy is inappropriate.

Any misconduct reduces compensation payable.

No compensation is payable for shock, distress or humiliation caused by your dismissal (section 392(3) and (4)).

The current compensation cap is the lesser of $68,350 and 26 weeks’ of your total remuneration (section 392(5) and (6)).

You may not claim compensation for the costs you incur for making the unfair dismissal claim (section 611)

There are several limiting factors when it comes to the calculation of any compensation payments (section 392).

These include:

1. the effect of the order on the viability of the employer’s enterprise; and
2. the length of the person’s service with the employer; and
3. the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
4. the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
5. the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
6. the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
7. any other matter that the FWC considers relevant.

Step-by-Step Guide to completing FWC Form F2 – Unfair Dismissal

Question 1: Your Employment

1.1 What date did you begin working for your employer?

This is the date that you first commenced employment either on a casual or permanent basis. The date of this may be found in any employment contract you may have or your first pay slip.

1.2 What date were you notified of your dismissal?

This may be the same date that you were dismissed if you did not receive any notice. If you resigned because of the conduct of your employer, this is the date of your resignation.

1.3 What date did your dismissal take effect?

This question is to ascertain whether you have been employed for the minimum employment period required. The date your dismissal takes effect is the date your notice period ends, if you were given notice of the termination of your employment, for example, usually four weeks’ notice.

If you were not given any notice of your dismissal and/or you were summarily dismissed, it is the date you were informed of the termination of your employment. If you resigned because of the conduct of your employer, this is the date your resignation takes effect.

If you were paid in lieu of notice, it will be the last day that you attended work
This may be different to your answer to question 1.2 if you gave your employer notice of your resignation.

1.4 Are you making this application within 21 calendar days of your dismissal taking effect?

This is the date that the termination of your employment or your resignation takes effect. If you have given or been given notice, the date your dismissal takes effect is the date your notice period ends.

If you answer “no”, and are seeking to lodge an application later than 21 days after your dismissal takes effect, you may seek an exemption from the FWC. See Can I lodge a FWC application outside of the 21 calendar day time period?

1.5 Have you made another claim to the Commission or to any other organisation regarding your dismissal (e.g. a general protections application)?

You are not permitted to make an unfair dismissal application if you have already made a FWC general protections application or an application under any other legislation (section 725).

Question 2 – Remedy

2.1 What outcome are you seeking by lodging this application?

See What can I claim in my unfair dismissal application?

Question 3 – Dismissal

3.1 What were the reasons for the dismissal, if any, given by your employer?

You may set out the events leading to your dismissal in this section and provide the reasons for dismissal as stated to you verbally or in writing.

You may also attach a copy of any termination letter or final pay slip to the back of your application.

3.2 Why was the dismissal unfair?

This is the most important question and requires substantive answers to the three elements listed in What should I include in my unfair dismissal application?