Writing an unfair dismissal application isn’t difficult if you know how to. An unfair dismissal application should clearly outline why an employee considers they have been unfairly dismissed from their employment. An unfair dismissal application should also be concise, and factual and identify the relevant provisions of the Fair Work Act 2009 that the employee says have been breached.
This article explains how to write an unfair dismissal application.
Farrah Motley is the author of this article. She is a qualified employment lawyer. Farrah has represented employers and employees at the Fair Work Commission.
Step One: Download the unfair dismissal application form
An employee will need to download a Form F2 from the Fair Work Commission’s website.
Form F2 is available in both .pdf and .doc format. It is recommended that employees use the Word document, as the Word document is easier to edit.
Step Two: Complete the unfair dismissal application form
Writing a legally sound unfair dismissal application is important. For employees seeking to ensure that their unfair dismissal claim is understood and ultimately successful, an unfair dismissal application must:
- answer each of the questions set out in the Form F2 and provide complete and accurate information;
- describe the legal basis for the unfair dismissal claim;
- describe the facts (including people, dates, places and circumstances) that have led to the unfair dismissal; and
- describe what outcome the employee is looking for.
Answer the questions and provide general information
The Form F2 Unfair Dismissal Application requires employees to provide the following information (in addition to their legal argument):
H3: Describe the legal basis
- the name and contact details of the applicant (i.e. the employee)
- information as to whether the applicant needs an interpreter or is represented
- the name and contact details of the respondent (i.e. the employer)
- the start date and dismissal date of the applicant’s employment
- whether the applicant is submitting the form on time (21 days from the date dismissal took effect)
- if the applicant is not submitting the form on time, the reasons why and on what basis the Form F2 should still be accepted
- whether another claim relating to the dismissal has been made
Unless an employee is represented by an employment lawyer, this can be the difficult part.
Employment law can be complicated and it is always advisable to get in touch with an employment law firm for legal advice regarding unfair dismissal claims.
Having said that, there are a few things that employees can do to describe why the dismissal of their employment was legally unfair.
Here are a few tips for employees filling out an unfair dismissal application:
Refer to relevant sections of the Fair Work Act 2009
The Fair Work Act 2009 is the key piece of legislation governing employment law in Australia.
The relevant provisions of the Fair Work Act 2009 that apply to unfair dismissal claims can be found at sections 379 to 405. These sections are found in Part 3-2 of the Act.
It’s important to refer to the relevant unfair dismissal provisions because an employee will only be awarded an unfair dismissal remedy if they have a legal entitlement. This legal entitlement is found in the Fair Work Act.
Refer to any relevant Modern Awards or Enterprise Agreements
Modern Awards and Enterprise Agreements apply to some employers, industries or occupations.
It’s important to refer to any Modern Awards and Enterprise Agreements that may apply, if they are relevant to the unfair dismissal claim. This is because the Fair Work Act 2009 sets out the minimum standards, whereas Modern Awards and Enterprise Agreements may set out additional rights and entitlements of employees.
Refer to the contract of employment
It is important to outline the fact that an employment relationship was governed by a contract of employment. A contract of employment places certain rights and obligations on both employers and employees.
If an employee has been unfairly dismissed, it is helpful for an employee to identify and describe the relevant provisions of the contract of employment that have been breached. If an employment contract has been breached during the dismissal process, or the reason for the dismissal was not allowed by the employment contract, this may support an employee’s argument that the termination of their employment was unfair.
Refer to workplace policies
While workplace policies often do not form part of an employment contract, they are a part of the ‘rules’ governing an employee’s employment. If an employee can demonstrate that they have not breached an employment policy, and that was the reason for their termination, the dismissal is likely to be considered unfair.
Describe the facts
It’s important to understand the difference between opinion and fact. Opinion is a personal belief, whereas fact is supported by verifiable information.
Referring to facts (and not opinion) is key to writing a good unfair dismissal application.
The description of facts should be limited to those are that are relevant to the dismissal. This might include things like:
- what a manager said
- the contents of a letter from the employer (such as a termination letter)
- a text message or social media post
- issues leading up to the termination
Describe the outcome sought
An employee must respond to question 2 in the Form F2 Unfair Dismissal Application. Question 2.1 asks ‘What outcome are you seeking by lodging this application?’.
The outcomes that an employee can ask for are:
- compensation; and/or
- reinstatement of the person’s employment
Example of a completed Form F2
Employees should use examples as a guide only. It is important that a Form F2 is tailored to the circumstances of the unfair dismissal claim. Copying and pasting should be avoided.
Step Three: File unfair dismissal application form and pay the application fee
An employee (or their representative, such as an employment lawyer) will need to file and unfair dismissal application with the Fair Work Commission. This can be done online or by emailing the completed form to the relevant State or Territory office.
A filing fee will need to be paid (unless a fee waiver is granted). Filing fees are published on the Fair Work Commission’s website.
An exemption from paying the filing fee may be granted where an employee is suffering serious financial hardship. To apply for an exemption, an employee will need to complete a waiver of application fee form and sent it to the Fair Work Commission along with the application.
Step Four: Serve the unfair dismissal application on the employer
An unfair dismissal application will need to be provided to the employer. An employee cannot rely on the Fair Work Commission to do this for them. Instead, when a completed Form F2 is emailed to the Fair Work Commission, the relevant employer contact should be copied into the email. This contact might be the employer’s human resources manager or the employee’s former manager.
How can Prosper Law help?
Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel and employment law.
If you need to talk to an employment lawyer, get in touch today.
Contact the team at Prosper Law today to discuss how we can provide you with workplace legal advice for a fixed fee or at affordable hourly rates.
Farrah Motley | Director
P: 1300 003 077
Enjoyed this article? Check out What Is Unfair Dismissal? Your Australian Legal Guide