Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - Australia - 2019
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- Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 180 of 2018, 12 December 2018
Date: 12 Dec 2018; view website »
- Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to the “Fair Work Amendment (Casual Loading Offset) Regulations“ 2018, 18 December 2018
Date: 18 Dec 2018; view website »
- Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009
Date: 24 Jun 2009; view website »
Compensation for unfair dismissal - free determination by court: No
- See s392 FWA on Remedy - compensation
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $145,400 (July 2018) therefore the compensation cap is $72,700.)
- s392 (5) and (6) FWA on Compensation cap
"(5) The amount ordered by FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."
Reinstatement available: Yes
- s390 and s391 FWA.
s391 reads as follows:
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal [...]"
Preliminary mandatory conciliation: Yes
- After an unfair dismissal application has been lodged, the Fair Work Commission must resort to all means other than arbitration which it considers are likely to resolve the conflict, such mediation, conciliation, making a recommendation or expressing an opinion (sec. 368 FWA). It usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from the Fair Work Commission.
Competent court(s) / tribunal(s): labour court
- Unfair dismissal disputes are decided by the Fair Work Commission (which is the national workplace relations tribunal) (sec. 385, 390 FWA)
Note that general protections dismissal applications (see prohibited grounds) can be brought to the FWC which must deal with the dismissal by mediation or conciliation. If it is satisfied that all reasonable attempts to resolve the dispute by mediation or conciliation have been or are likely to be unsuccessful ,it must issue a decision to refer the dispute to arbitration. If both parties agree, the FWC can then resolve the conflict by arbitration (sec. 369 FWA). Otherwise, the applicant can then make an application to an ordinary court to deal with the matter (Sec 370 FWA).
A person cannot make a general protections dismissal application at the same time as an unfair dismissal application
Existing arbitration: Yes
- If the FWC is satisfied that all reasonable attempts to resolve a general protections dismissal application by mediation or conciliation have been or are likely to be unsuccessful and has issued a formal decision regarding this matter, it can, with the approval of both parties, resolve the conflict by arbitration, including by issuing binding orders to reinstate or compensate the applicant, to maintain his or her employment and to pay lost remuneration (sec. 369 FWA).