Determining unfair dismissal applications

Unfair dismissal matters are a substantial part of the Commission's workload, representing more than 40 per cent of applications made to the Commission.

Many applicants and employers come to the Commission for the first time when such an application is made and this can result in significant challenges when all parties are in unfamiliar territory.

The Commission's Future Directions program includes strategies to assist both applicants and respondents with information to navigate the legislative framework including short videos and tools such as an eligibility quiz and a comprehensive benchbook.

In 2014–15 the Commission worked on better identifying and dealing with significant jurisdictional and threshold issues at an early stage. This included triaging matters where the applicant had not met the minimum period of employment or the respondent was not a national system employer. In the reporting period the Commission also changed the case management of matters lodged outside of the required timeframe. These matters also were directed to a Commission Member who made a decision about allowing an extension of the statutory timeframe prior to arranging a voluntary conciliation conference or requiring a decision on the merits of the case. This resulted in a significant increase in the number of jurisdictional decisions issued by Members in 2014–15 (see Table 15).

Ninety per cent of applications for unfair dismissal are resolved prior to formal proceedings before a Commission Member, by conciliation, triage and case management, or where a person withdraws their application. To assist unrepresented parties who proceed to a formal proceeding, in December 2014 the Commission introduced a set of tools and processes that guided them through how to make submissions and statements without the need for legal or other representation. These materials are sent to the parties and are published on the Commission's website.

Unfair dismissal process

Unfair dismissal applications follow a standard process:

  • Applicant lodges an application with the Commission.
  • Applications are analysed and are either allocated to a Member to determine a threshold issue, or allocated to the conciliation support team.
  • The matter is listed for a voluntary telephone conciliation conducted by specialist conciliators.
  • Where a matter is unable to be resolved with the assistance of the conciliator, or the employer makes a jurisdictional objection, the matter is listed before a Commission Member.

Some 14,624 unfair dismissal applications were filed in 2014–15, a decrease of 173 matters from the previous year. The pattern and location of lodgments were broadly consistent with previous years. New South Wales, Tasmania and the Australian Capital Territory all saw falls in the number of applications lodged, while all other locations saw slight or moderate increases. Table 12 provides a breakdown of the number of unfair dismissal applications by the city in which they were lodged. The median time from lodgment of an application to the finalisation of an unfair dismissal conciliation dropped from 46 days in 2013–14, to 28 days in 2014–15.

Table 12: Unfair dismissal – lodgments
Location 2011–12 2012–13 2013–14 2014–15
Adelaide 906 1037 999 1005
Brisbane 2639 2747 2695 2814
Canberra 250 256 245 185
Darwin 168 170 153 197
Hobart 292 275 267 259
Melbourne 4713 5018 4913 4929
Newcastle 49 196 193 97
Perth 1233 1346 1458 1554
Sydney 3752 3743 3831 3539
Wollongong 25 30 43 45
Total lodgments Australia-wide 14,027 14,818 14,797 14,624

Figure 12: Unfair dismissal applications lodged – monthly comparison

Figure 12 is a line graph showing a monthly comparison of unfair dismissal applications lodged between 2009-10 and 2014-15. Refer to Table G9 for the source data used to generate this graph.

For source data see Table G9.

Conciliation of unfair dismissal matters continued to prove to be a successful method of resolving these applications. More than 11,000 matters were conciliated in 2014–15 and 79 per cent of matters referred to conciliation were resolved at this stage. The conciliation process, when combined with comprehensive case management processes post conciliation, resulted in nearly 90 per cent of unfair dismissal applications being resolved without a need for a determination to be made by a Commission Member. Of the 15,177 unfair dismissal applications finalised, 1527 required a final decision or order to finalise the matter.

See Table 13 for conciliation settlement rates.

Figure 13: How matters were finalised

Figure 13 is a pie graph showing how unfair dismissal matters were finalised. This graph is a visual representation of the data that can be found in Table G6

Table 13: Unfair dismissal – conciliation settlement rate
Result type Year to date total %
  2012–13 2013–14 2014–15 2012–13 2013–14 2014–15
Total settled matters 8843 8659 8788 81.2 78.9 79.0
Total NOT settled matters 2043 2313 2337 18.8 21.1 21.0
Total resulted conciliations 10,886 10,972 11,125 100 100 100

Participants in conciliations are surveyed to determine their level of satisfaction with the unfair dismissal conciliation process. Overall satisfaction remained high this year, with more than 75 per cent of those who responded indicating the conciliation process met or exceeded their expectations, and more than 80 per cent indicating that they were satisfied with the service they received throughout the conciliation process.

The Commission successfully undertook a pilot involving paperless unfair dismissal files for matters referred to conciliation in 2014–15. The pilot enabled the Commission to better manage workloads and to address some of the bottlenecks that contributed to the previous years' increase to the median time taken from lodgment to the finalisation of conciliation. Other procedural changes included referring all matters that were filed outside of the statutory 21 days directly to a Commission Member in order to determine whether an extension of time should be granted.

Outcomes

This year 11,125 unfair dismissal conciliations were held, with 8788 matters settled at this stage. Remedies were generally negotiated by the parties with the help of the conciliator. These remedies could include reinstatement, monetary and non-monetary terms or a combination of these remedies. Of those settled, 58.6 per cent (5147) of these resulted in both monetary and non-monetary settlements, 20.7 per cent (1820) of matters were settled with non-monetary terms only and 0.8 per cent (71) of matters resulted in reinstatement.

Table 14: Unfair dismissal, conciliation – results
Result type Year to date total Year to date %
  2012–13 2013–14 2014–15 2012–13 2013–14 2014–15
Settled
Settled: Monetary 1669 1846 1750 19.5 21.3 19.9
Settled: Monetary + non-monetary 4906 4740 5147 53.9 54.7 58.6
Settled: Non-monetary 2136 2008 1820 25.0 23.2 20.7
Settled: Reinstatement 79 30 47 0.9 0.3 0.5
Settled: Reinstatement + monetary 26 15 15 0.3 0.2 0.2
Settled: Reinstatement + non-monetary 19 14 4 0.2 0.2 0.0
Settled: Reinstatement, monetary + non-monetary 8 6 5 0.1 0.1 0.1
Total settled matters 8843 8659 8788 100.0 100.0 100.0
Not settled
Not settled at conciliation 1963 2252 2301 18.1 20.5 20.7
Not settled: Settlement collapsed 80 61 36 0.7 0.6 0.3
Total settled matters 8843 8659 8788 81.2 78.9 79.0
Total NOT settled matters 2043 2313 2337 18.8 21.1 21.0
Total resulted conciliations 10,886 10,972 11,125 100 100 100

In jurisdiction hearings, the objection was upheld in 77 per cent of matters (890). The number of objections that were upheld has significantly increased due to the changes introduced to how the Commission deals with extension of time applications. For a full breakdown of jurisdictional hearing results refer to Table 15.

Table 15: Unfair dismissal arbitration – hearing/conference results – jurisdiction
  2012–13 2013–14 2014–15
Objection upheld 258 374 890
Applicant not dismissed 36 45 46
Employer not national system employer 2 5 13
Frivolous, vexatious 2 0 0
Genuine redundancy 22 34 83
Irregular and/or casual employee 0 1 3
Minimum period of employment not served 44 50 109
Multiple applications 1 0 2
No award, agreement or high income employee 13 27 34
No employment relationship 10 25 19
No extension of time – up to and including 7 days late 17 51 180
No extension of time – more than 7 days late 82 127 368
No reasonable prospect of success 23 9 5
Termination consistent with Small Business Fair Dismissal Code 8 8 12
Unknown1 11 6 33
Objection dismissed 120 159 266
Applicant dismissed 15 19 25
Application within time N/A N/A 20
Award, agreement and/or not high income employee 5 3 10
Employment relationship 15 28 8
Extension of time – up to and including 7 days 30 34 82
Extension of time – more than 7 days 20 29 72
Minimum period of employment served 8 17 28
National system employer 1 0 3
No genuine redundancy 13 18 15
No multiple applications 0 3 0
Not frivolous, vexatious 5 0 0
Not irregular casual employee 5 5 2
Reasonable prospect of success 1 3 5
Termination inconsistent with Small Business Fair Dismissal Code 3 4 5
Unknown1 4 12 7
Total objection results Australia-wide2 378 533 1156
  1. Unknown as activity incomplete.
  2. An application may be found in or out of jurisdiction on numerous grounds. Accordingly, jurisdictional results are not cumulative.

 

In 46.1 per cent of the 349 matters finalised at arbitration, the dismissal was found to be fair. In the remaining 188 matters the remedies were:

  • compensation (141 matters)
  • reinstatement (12 matters)
  • reinstatement and lost remuneration (15 matters)
  • no remedy determined (10 matters)
  • remedy to be determined (10 matters).

See Table 16 for a summary of arbitration outcomes. For a full break down of remedies see Table 17.

Table 16: Unfair dismissal arbitration – hearing/conference results – outcomes
Tribunal decision No. of decisions
  2012–13 2013–14 2014–15
Objection upheld – application dismissed 258 374 890
Application dismissed (s.587)1 N/A 96 77
Application dismissed – (s.587) dismissal by Panel Head1 N/A 265 107
Application to dismiss (s.399A) – granted1 N/A 98 104
Application dismissed – dismissal was fair 256 175 161
Application granted – compensation 112 150 141
Application granted – no remedy granted 14 8 10
Application granted – reinstatement 8 9 12
Application granted – reinstatement and lost remuneration 12 25 15
Application granted – remedy to be determined N/A N/A 10
Total arbitration results Australia-wide 660 1200 1527
  1. The administrative framework to capture data under these parts commenced operation in July 2013. Earlier data is not available.
Table 17: Unfair dismissal arbitration – hearing/conference results – remedies
  2012–13 2013–14 2014–15
Application dismissed (s.587) N/A 96 77
Application dismissed: (s.587) dismissed by Panel Head1 N/A 265 107
Failure to attend N/A 4 0
Incomplete application N/A 12 12
Minimum employment period not met N/A 166 52
No notice of discontinuance filed after settlement N/A 6 0
No reasonable prospect of success N/A 14 7
Non-compliance with directions N/A 5 4
Premature application N/A 6 0
Unpaid application N/A 54 38
Verbal or written advice of discontinuance2 N/A 14 N/A
Application to dismiss (s.399A): granted N/A 98 104
Application dismissed: dismissal was fair 256 175 161
Application granted: compensation 112 150 141
$0 – $999 8 7 3
$1000 – $1999 12 9 15
$2000 – $3999 15 20 17
$4000 – $5999 13 18 21
$6000 – $7999 8 12 15
$8000 – $9999 8 17 10
$10,000 – $14,999 14 18 20
$15,000 – $19,999 7 8 14
$20,000 – $29,999 8 13 15
$30,000 – $39,999 8 8 5
$40,000 – maximum amount 3 10 2
No loss of wages 2 4 1
Unknown3 6 6 3
Application granted: no remedy granted 14 8 10
Application granted: reinstatement 8 9 12
Application granted: reinstatement and lost remuneration 12 25 15
$0 – $999 1 0 0
$1000 – $1999 0 1 1
$2000 – $3999 1 2 1
$4000 – $5999 0 1 1
$6000 – $7999 0 2 1
$8000 – $9999 1 1 0
$10,000 – $14,999 1 1 2
$15,000 – $19,999 0 3 1
$20,000 – $29,999 0 1 2
$30,000 – $39,999 1 1 1
$40,000 – maximum amount 0 4 0
No loss of wages 5 4 2
Unknown3 2 4 3
Application granted: remedy to be determined N/A N/A 10
Total arbitration results Australia-wide 402 826 637
  1. An application may be dismissed by the Panel Head on numerous grounds. Accordingly, results are not cumulative.
  2. Due to a rule change in December 2013 matters can now be discontinued verbally by the applicant resulting in the Panel Head no longer being required to dismiss a matter where a notice of discontinuance is not filed.
  3. Unknown as activity incomplete.

Timeliness

Work is underway to establish a range of benchmarks for unfair dismissal matters in order to provide greater accountability, and to also better equip parties with realistic expectations on how long they can reasonably expect their matter to take. There are already established expectations for how long a matter should take to resolve by way of conciliation, so the area of focus is on benchmarks associated with the time taken to get from lodgment to finalisation by way of a substantive or jurisdictional hearing.

Table 18 sets out the time taken from lodgment of an unfair dismissal application to conciliation and then to finalisation.

Table 18: Unfair dismissal – timeliness
s.394 applications KPI3 50% of matters 90% of matters
    2011–12 2012–13 2013–14 2014–15 2011–12 2012–13 2013–14 2014–15
Lodgment to first conciliation (days)1 34 28 25 46 28 36 40 61 42
Lodgment to finalisation (days)2 None 49 30 51 35 108 114 146 133
  1. This measure is the number of days between lodgment and the first conciliation and includes applications under s.394 of the Fair Work Act and s.643 of the Workplace Relations Act by virtue of items 11 and 12, Schedule 2 to the Transitional Provisions Act.
  2. Finalisation relates to a matter that has had a final result recorded and includes conciliations, arbitrations and matters withdrawn and is based on all matters finalised, as defined in the Commission's quarterly reports to the Minister, for the reporting period. Matters involving costs issues are not included.
  3. The Commission has used the KPI targets from the 2013–14 Portfolio Budget Statements as a guide as the 2014–15 Portfolio Budget Statements were silent on these targets.

Appeals

In December, the Commission implemented the Permission to Appeal Pilot in order to deal with appeals in a more efficient manner.

The increase in the number of decisions issued in respect to unfair dismissal applications contributed to an increase in the number of appeals. For all matter types the number of appeals lodged increased by 57 per cent (122 matters). Of the 234 total appeal applications decided, 134 related to unfair dismissals. Table 19 provides the number of appeals relating to unfair dismissal applications broken down by year.

Table 19: Unfair dismissal – appeals
Decisions appealed Upheld Dismissed Total
  2012–13 2013–14 2014–15 2012–13 2013–14 2014–15 2012–13 2013–14 2014–15
Total 13 30 32 45 49 102 58 79 134

Seventy appeals were dealt with through the Permission to Appeal Pilot. Of these 70 appeals, 74.3 per cent (52) were not granted permission to appeal and 25.7 per cent (18) were granted permission as illustrated in Table 20.

Table 20: Permission to Appeal Pilot statistics1
  Total Permission
not granted
Permission
granted
Percentage
not granted
Percentage
granted
Total matters 70 52 18 74.3 25.7
  1. This data is for the date range 1 January 2015 to 30 June 2015.

Further, Table 21 provides detail on the outcome of all appeal decisions in 2014–15.

Table 21: Outcomes of appeal matters from 1 July 2014 to 30 June 2015
Matter type Appeals upheld Appeals dismissed Total appeal decisions
Unfair dismissals 32 102 134
Agreement approvals 8 11 19
s.739 disputes 11 22 33
Industrial action 1 5 6
Modern awards 1 0 1
Bargaining disputes 3 5 8
Right of entry1 4 5 9
Miscellaneous 6 18 24
Total 66 168 234
  1. Right of entry has replaced Organisation as a category name, however the type of matters captured by this category has not changed.

 

In Focus

Permission to Appeal Pilot

In an effort to reduce the time and cost burdens for parties involved in appeal matters and improve the performance and efficiency of its processes, the Commission launched a Permission to Appeal Pilot in December 2014.

When dealing with an appeal the Commission must consider two questions:

  • whether permission to appeal should be granted and, if it is granted,
  • whether there has been an error in the original decision.

Previously, Commission practice had been to consider both issues at the same Full Bench hearing.

However, for a significant number of appeals (particularly in relation to unfair dismissal and general protections applications), permission to appeal was ultimately refused, but only after the parties had incurred costs in preparing and filing submissions on the merits of the appeal.

Under the pilot, the issue of permission to appeal was determined as a threshold matter, reducing the burden on the parties to provide lengthy submissions that may not ultimately be required.

All appeals were assessed for inclusion in the pilot. Those appeals which Commission data suggested had a higher likelihood of being refused permission to appeal (such as unfair dismissal appeals, because of the higher statutory threshold for permission to appeal) were most likely to be included in the pilot.

Where an appeal matter was referred to the pilot, the appellant was required to file a short written submission in support of the application for permission to appeal only. The respondent was not required to file any written submissions, but was able to make oral submissions at the hearing.

All appeals included in the pilot in a particular month were heard by a single Full Bench in either Sydney or Melbourne, with video links to other states as required, in the third week of the month following the lodgment of the appeal. Up to eight permission to appeal matters were heard on each sitting day.

If permission to appeal was not granted, the proceeding was concluded. If permission was granted, then the appeal was listed for a merits hearing in the usual way.

About 75 per cent of the applications determined in the pilot were refused permission to appeal.

Vice President Hatcher, who oversaw the pilot, said both the Commission and parties had benefitted from the new procedures.

We've had positive feedback that this has been faster for them and particularly has saved them on costs, including legal costs.
 
Vice President Hatcher.

Timeliness was also substantially improved by the new process. Under the pilot appeals could be listed for hearing within a month of the application, with a decision issued within two weeks. Previously it could take three months, or longer, for a hearing to occur and a decision to be delivered.

The new process also reduced the appeals workload for Commission Members.

The pilot is to be reviewed in October 2015. However based on early indications and feedback it is likely to be introduced as part of the normal Commission appeals process for unfair dismissal and general protections matters in the future.

This photo shows Deputy President Kovacic, Vice President Hatcher and Commissioner Johns hearing a permission to appeal matter as part of the pilot program introduced in 2014â  15.

Image: Deputy President Kovacic, Vice President Hatcher and Commissioner Johns (L to R) hear permission to appeal matters as part of the pilot program introduced in 2014–15.

 

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