Fair Work Commission

Overview

See Fair Work Act 2009 s.725‒s.733

When employment is terminated, it will be necessary to choose one of several options for challenging the termination, (apart from an unfair dismissal application there could for example, be a right to make a general protections application or a claim under anti-discrimination laws).

Multiple actions in relation to the same dismissal are NOT permitted.

Different applications could result in different remedies, if the application is successful. Advice should therefore be obtained promptly on all available options, before a final decision is made about making an application under the unfair dismissal provisions.

This benchbook deals only with unfair dismissal. Information about general protections applications is contained in the General protections benchbook.

Case example

What happens if you make the wrong application?

Section 586 of the Fair Work Act provides a power for the Fair Work Commission to correct or amend an application, or waive an irregularity in the form or manner in which an application is made.^[2]

However, the power in s.586 does not allow the Commission to amend an unfair dismissal application so that it becomes a general protections application.^[3] It cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made.^[4]

If a person decides that they have made an incorrect application and would like to pursue a different type of application, under another section of the Fair Work Act in relation to a dismissal, they will need to discontinue the existing application and file a new application under the appropriate section.

References

^[1] Du v University of Ballarat (2011) 211 IR 382 [24].

^[2] Fair Work Act s.586; see Narayan v MW Engineers Pty Ltd (2013) 231 IR 89 [6].

^[3]  Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 (Boulton J, Gostencnik DP, Johns C, 2 October 2014) at para. 11.

^[4] ibid., at para. 17.