Legal
Issue No. 16 - April/May 2004
Dismissal Changes
by Michael Hegarty
The Summons which was formerly used to commence a claim has now been replaced by an Application, which is Form 3. An employee who wishes to make a claim must file the original and one copy of this form in the Industrial Court Registry within 21 days of the dismissal taking effect. The applicant can file the form in person at the Registry or by post or by fax. The Registry then forwards a copy of the form and any attachments to the former employer.
This new Application form requires the applicant to provide further details of their employment to the Commission. These additional details were not required on the old Summons. The purpose of requiring these extra details is to assist the Commission and the employer to come to a better and more complete understanding of the issues at an earlier stage of the process. In the case of a late application, Form 3 makes provision for the employee to explain why they did not lodge the application within the 21 days allowed.
A major change for employers is that within 10 days of receiving a copy of the Application they must now file a Response in the form of Form 4. This response may be filed in person at the Registry, or by post or by fax.
As discussed in earlier articles, the issue of whether or not a person is an employee is a complex legal issue. What happens if the employer asserts that the applicant was not an employee? Logic says that if the applicant was not in fact an employee, there cannot have been a ‘dismissal’. However, the employer should still respond to the Application, even if the employer does not believe the applicant was an employee or that the employee was not dismissed. If this is the gist of the employer’s argument, the employer should include this in the Response, and should still attend before the Commission on the date advised on the Application. The Commission will assess this issue in considering how to resolve the application.
The Response form requires ...
