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3. THE FEDERAL SYSTEM (continued)

3.11 Hearings in the Federal Court or Federal Magistrate's Court

The hearing

Hearings in the Federal Court or Federal Magistrate's Court follow a similar procedure as outlined for arbitration in the AIRC (see section 3.10 Arbitration in the Australian Industrial Relations Commission). This section contains only a brief summary and highlights differences between arbitration in the AIRC and hearings in the Federal Court or Federal Magistrate's Court.

The hearing follows formal court procedure with the presentation of evidence from witnesses and cross-examination, and tendering of documents, similar to the procedure outlined for arbitration in the AIRC. After all the evidence has been presented, the court will decide whether your termination was unlawful.

For an unlawful termination claim to succeed the dismissed employee needs to satisfy the Court on the balance of probabilities that the employment was terminated for a discriminatory or prohibited reason or for reasons that included discriminatory or prohibited reasons.

What orders can the court make?

If the court decides in your favour and finds that your dismissal was unlawful, a number of orders may be made:

• Penalty - the court can impose a penalty on the employer, up to $10,000.
• Reinstatement - the court can order your employer to reinstate you by reappointing you to your previous position.
• Re-employment - the court can order that you are appointed to another position on terms and conditions no less favourable than those of your previous position.
• Continuity of service - the court can make any orders it thinks necessary to maintain the continuity of your employment if you are reinstated or re-employed. This will enable your period of service to be unbroken, for the purposes of restoring your annual leave, long service leave, sick leave, superannuation and other entitlements.
• Backpay - the court can also make an order requiring your employer to pay you wages to cover the period between your dismissal and reinstatement.
• Payment in lieu of notice - if your employer dismissed you without the required notice or payment in lieu, the court can make an order requiring them to pay you an amount of damages equal to the wages you should have been paid when your employment was terminated.
• Compensation - the court can order your employer to pay you compensation for the loss of your job. There are limits on the compensation that can be awarded which are the same as those that apply to compensation for cases dealt with in the AIRC.
  
  For employees covered by an award or agreement, compensation is limited to a maximum of six months salary;
  
  For employees not employed under industrial instrument conditions, compensation must not exceed $45,200 (indexed annually) or six months salary, whichever is the lesser.
  
  The court cannot order compensation for stress or illness caused by the dismissal.

Although the Workplace Relations Act doesn't provide the Court with specific factors that should be taken into account in determining the amount of compensation, as it does for the AIRC, the same factors are likely to be considered:

• the effect of the order on the viability of the employer's business/organization;
• how long you were employed by your employer;
• the amount of income you would have received if you were not terminated;
• your efforts to find other employment;
• any other relevant consideration;
• how unfair the dismissal was;
• your ability to find alternative employment;
• your age and seniority; and
• your employment record with your employer.

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