Fair Work Commission

Introduction

See Fair Work Act s.365

If:

• a person has been dismissed, and
• the person, or an industrial association that is entitled to represent them, alleges that the person was dismissed in contravention of the general protections;

then the person (or their industrial association) may apply to the Commission for the Commission to deal with the dispute. If no such application is made, the person cannot take the matter to a Court.

What if there is a question about whether the dismissal occurred?

If an employer argues that the applicant left their employment for a reason other than dismissal (such as resignation), the Commission can conduct a conference in an attempt to resolve the dispute as long as:

• an application has been lodged, and
• on the face of the application, it is alleged that a dismissal has occurred in contravention of the general protections provisions.^[1]

The Commission does not need to make a determination that the applicant in a s.365 proceeding has been ‘dismissed’ from their employment (within the meaning of s.365), before the Commission can conduct a conference in relation to the dispute.^[2]

References