If the Fair Work Commission (the Commission) is satisfied that you were unfairly dismissed and there are no restrictions (jurisdictional limits) that stop you from making an unfair dismissal application, it can make an order for:
Order for re-employment
If you are reinstated, you go back to working for the employer that dismissed you. Reinstatement is the first remedy that the Commission will consider. If you don't want to go back to working for your employer, or your employer has good reasons why you shouldn't be re-employed, the Commission may order your employer to pay you compensation instead.
If the Commission makes an order for reinstatement, the employer must:
- give you the same position you had before you were dismissed, or
- put you in another position where the terms and conditions are just as good as the ones you had before (sometimes called redeployment).
If your old position (or a position equal to your old position) is no longer available with your employer, the Commission can make an order that you be hired by an 'associated entity'.
An associated entity is another business that your employer controls, influences or has an interest or investment in. It can also be a business that controls, influences or has an interest or an investment in your employer. Two businesses will also be 'associated entities' if there is a third business that controls them both. For example, if your employer owns a number of companies, the Commission can order that you be given a job at one of the other companies.
The Commission may also make an order that:
- your employment be considered 'continuous' during the time that you were dismissed. If your service is continuous, you will keep entitlements to long service leave and any other benefits that depend on your length of service
- your employer pay you for the wages or salary you lost because of the dismissal.
You have an obligation to try and make the amount of money you lose after being dismissed as small as possible. This is called 'mitigating your loss'. One of the main things you can do to mitigate your loss is to try and find another job. You should keep records of the things you do to find a new job, for example copies of job applications and refusal letters. Another thing you can do is apply for Centrelink benefits.
If you are worried about going back to work for the employer, you should explain to the Commission why reinstatement is not appropriate in your case and why you think compensation should be ordered instead.
If the Commission decides that reinstatement is not suitable in your case, it may order the employer to pay you compensation. There is a cap on the amount of compensation you can get.
The maximum compensation the Commission can order the employer to pay you is 26 weeks pay.
When working out how much compensation you should be paid, the Commission must look at:
(a) the effect this will have on the employer's business
(b) how long you have worked for the employer
(c) the money you would have received (or were likely to receive) if you weren't dismissed
(d) what you have done to reduce (mitigate) the loss you suffered because of the dismissal
(e) how much you have earned from employment or other work since you were dismissed
(f) how much you are likely to earn between when the Commission makes the order and when you will get any compensation payments
(g) if you have misbehaved in any way and whether this contributed to the employer's decision to dismiss you
(h) any other matter that the Commission considers relevant.
The Commission cannot award you compensation for hurt feelings (for example shock, distress or humiliation) caused because of the way you were dismissed.
If you haven't been dismissed but you are experiencing workplace bullying, you may be able to make a bullying claim in the Commission. You should get
about your options.
For answers to commonly asked questions, see
What is unfair dismissal - Frequently Asked Questions.