Document Details

Document Id	fs_non_compliance_with_unfair_dismissal_orders.pdf
Document Title	Fs Non Compliance With Unfair Dismissal Orders
Reference	https://drive.google.com/uc?export=download&id=1WsmI8o4k9wDO7QXUr9KD4anfAu-mwaJN
Publisher	Fair Work Ombudsman
Categorization	Human Resource Management HR Compliance & Legal Management
Document Source	5376 characters in 0 pages. (pdf)
Tags	unfair dismissal, Fair Work Commission, compensation, small claims, workplace relations, legal advice, enforcement, penalties, employee rights, Fair Work Ombudsman

This fact sheet from the Fair Work Ombudsman outlines the implications of non-compliance with unfair dismissal orders issued by the Fair Work Commission. It explains the nature of these orders, which can include dismissal of applications, compensation, or reinstatement. The document clarifies the distinction between a Commission order and a Terms of Settlement document, emphasizing that the Commission cannot enforce its orders directly. It details the options available for employees seeking enforcement, including civil proceedings in various courts and the small claims process. Additionally, it discusses potential penalties for employers who fail to comply with orders and provides contact information for the Fair Work Ombudsman for further assistance. The fact sheet aims to inform employees about their rights and the steps they can take if an order is not honored.

The Fair Work Ombudsman’s fact sheet on non-compliance with unfair dismissal orders provides essential information regarding the enforcement of orders issued by the Fair Work Commission. An order from the Commission can either dismiss an unfair dismissal application, require compensation, mandate reinstatement, or a combination of these. Importantly, while these orders are legally binding, the Commission lacks the authority to enforce them directly. Instead, employees must pursue enforcement through civil proceedings in various courts, including the Federal Circuit and Family Court of Australia or State Magistrates Courts. The document outlines the small claims process, which allows individuals to recover unpaid compensation up to $100,000 in a more informal setting, although it does not permit pecuniary penalty orders. If an employer fails to comply with an order, courts may impose additional penalties. The Fair Work Ombudsman serves as a resource for employees seeking guidance on enforcement and compliance issues. The fact sheet emphasizes the importance of understanding one’s rights and the available legal avenues for recourse in cases of non-compliance with unfair dismissal orders.

Original content extracted from the source document.

Non-compliance with unfair dismissal orders

What is a Fair Work Commission order?

An order is a direction given by a Member of the Fair Work Commission (the Commission) in accordance with a decision. In relation to unfair dismissal applications, an order may:

 dismiss an unfair dismissal application
 require compensation to be paid
 require reinstatement, or
 require compensation to be paid and reinstatement.

An order made by the Commission is legally binding. However the Commission does not have the power to enforce an order. The enforcement of orders is further explained in this fact sheet.

Is an order the same as a Terms of Settlement document?

An order is different from a Terms of Settlement document. A Terms of Settlement is a document signed by two parties agreeing to a settlement, and is usually obtained during the conciliation process of an unfair dismissal application with the Commission This fact sheet does not cover Terms of Settlement documents. For information on enforcing a Terms of Settlement document legal advice may need to be sought. Please see the Further information section below.

What options are available when non-compliance of an order occurs?

If an employee does not receive compensation ordered by the Commission, there are several options to seek enforcement through the commencement of civil proceedings in:

 the Federal Circuit and Family Court of Australia or a State Magistrates Court by commencing a small claim proceeding
 the Fair Work Division of the Federal Circuit and Family Court of Australia, or
 an eligible State or Territory Court such as a District or County Court or state industrial relations commission.

Normally an order for compensation from the Commission will provide a timeframe within which compensation is to be paid. It is advisable to wait until the timeframe has lapsed before seeking a noncompliance option.

What is a small claim proceeding?

You can recover up to $100,000 through the small claim procedure. In some cases, the court may allow the successful applicant to recover any court filing fees paid from the respondent. A pecuniary penalty order cannot be sought through this procedure. If an unfair dismissal order for compensation is more than this, you can still make a claim for enforcement of the order using other court procedures.

Further information regarding small claims procedures can be found at section 548 of the Fair Work Act (FW Act).

For further information on filing a small claim in the Fair Work Division of the Federal Circuit and Family Court of Australia visit fcfcoa.gov.au/resources/forms

If a person wishes to file a claim through a State Magistrates Court they can contact that court directly.

Penalties

If an employer has not complied with an unfair dismissal order made by the Commission, it is possible for courts, such as the Federal Court of Australia, Federal Circuit and Family Court of Australia, or an eligible State or Territory court to order the payment of an additional penalty.

This kind of penalty is known as a pecuniary penalty and is in addition to any order made by the Commission.

Fair Work Ombudsman

If an unfair dismissal order made by the Commission is not complied with, you can contact the Fair Work

Ombudsman for information on possible assistance with enforcing the order.

You can contact the Fair Work Ombudsman online at fairwork.gov.au or through the Fair Work Infoline: 13 13 94.

Further information

You should note that legal advice is not available from the Fair Work Commission or the Fair Work Ombudsman.

There are Community Legal Centres in each State and Territory. You can use the Community Legal Centres Australia at clcs.org.au to find your nearest Community Legal Centre.

Please note CLCS does not provide legal advice.

CONTACT US

Fair Work Online: www.fairwork.gov.au

Fair Work Infoline:

13 13 94

Need language help?

Contact the Translafing and Interprefing Service (TIS) on 13 14 50

Hearing & speech assistance Call through the Nafional Relay Service (NRS):

For TTY:

13 36 77

Ask for the Fair Work Infoline 13 13 94

Speak & Listen:

1300 555 727

Ask for the Fair Work Infoline 13 13 94

The Fair Work Ombudsman is commifted to providing you with advice that you can rely on. The informafion contained in this fact sheet is general in nature. If you are unsure about how it applies to your situafion you can call our Infoline on 13 13 94 or speak with a union, industry associafion or a workplace relafions professional.

Fair Work Infoline: 13 13 94

Chunk 0 from Page 1 (What is a Fair Work Commission order?)

An order is a direction given by a Member of the Fair Work Commission (the Commission) in accordance with a decision. In relation to unfair dismissal applications, an order may:

 dismiss an unfair dismissal application
 require compensation to be paid
 require reinstatement, or
 require compensation to be paid and reinstatement. An order made by the Commission is legally binding. However the Commission does not have the power to enforce an order. The enforcement of orders is further explained in this fact sheet.

Chunk 1 from Page 1 (Is an order the same as a Terms of Settlement document?)

Chunk 2 from Page 1 (What options are available when non-compliance of an order occurs?)

If an employee does not receive compensation ordered by the Commission, there are several options to seek enforcement through the commencement of civil proceedings in:

 the Federal Circuit and Family Court of Australia or a State Magistrates Court by commencing a small claim proceeding
 the Fair Work Division of the Federal Circuit and Family Court of Australia, or
 an eligible State or Territory Court such as a District or County Court or state industrial relations commission. Normally an order for compensation from the Commission will provide a timeframe within which compensation is to be paid. It is advisable to wait until the timeframe has lapsed before seeking a noncompliance option.

Chunk 3 from Page 1 (What is a small claim proceeding?)

A small claim proceeding in the Federal Circuit and Family Court of Australia or a State Magistrates Court is a way by which a person can seek to recover unpaid monies. The proceedings are generally more informal than other court proceedings and each party can only be represented by a lawyer if permission is given by the court. You can recover up to $100,000 through the small claim procedure. In some cases, the court may allow the successful applicant to recover any court filing fees paid from the respondent. A pecuniary penalty order cannot be sought through this procedure. If an unfair dismissal order for compensation is more than this, you can still make a claim for enforcement of the order using other court procedures. Further information regarding small claims procedures can be found at section 548 of the Fair Work Act (FW Act). For further information on filing a small claim in the Fair Work Division of the Federal Circuit and Family Court of Australia visit fcfcoa.gov.au/resources/forms If a person wishes to file a claim through a State Magistrates Court they can contact that court directly.

Chunk 4 from Page 1 (Penalties)

Chunk 5 from Page 2 (Fair Work Ombudsman)

The Fair Work Ombudsman is an independent statutory agency, separate from the Fair Work Commission. The Fair Work Ombudsman is the agency responsible for providing education, assistance and advice about the Commonwealth workplace relations system. The Fair Work Ombudsman is also responsible for impartially enforcing compliance with the FW Act and fair work instruments. If an unfair dismissal order made by the Commission is not complied with, you can contact the Fair Work Ombudsman for information on possible assistance with enforcing the order. You can contact the Fair Work Ombudsman online at fairwork.gov.au or through the Fair Work Infoline: 13 13 94.

Chunk 6 from Page 2 (Further information)

You should note that legal advice is not available from the Fair Work Commission or the Fair Work Ombudsman. There are Community Legal Centres in each State and Territory. You can use the Community Legal Centres Australia at clcs.org.au to find your nearest Community Legal Centre. Please note CLCS does not provide legal advice.

Chunk 7 from Page 2 (CONTACT US)

Fair Work Online: www.fairwork.gov.au Fair Work Infoline: 13 13 94 Need language help? Contact the Translafing and Interprefing Service (TIS) on 13 14 50 Hearing & speech assistance Call through the Nafional Relay Service (NRS): For TTY: 13 36 77 Ask for the Fair Work Infoline 13 13 94 Speak & Listen: 1300 555 727 Ask for the Fair Work Infoline 13 13 94 The Fair Work Ombudsman is commifted to providing you with advice that you can rely on. The informafion contained in this fact sheet is general in nature. If you are unsure about how it applies to your situafion you can call our Infoline on 13 13 94 or speak with a union, industry associafion or a workplace relafions professional. Fair Work Infoline: 13 13 94 Last updated: December 2023 © Copyright Fair Work Ombudsman

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