Annual Report 2014–15 search
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.
| 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
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
| 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.
| 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.
| 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 |
- Unknown as activity incomplete.
- 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.
| 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 |
- The administrative framework to capture data under these parts commenced operation in July 2013. Earlier data is not available.
| 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 |
- An application may be dismissed by the Panel Head on numerous grounds. Accordingly, results are not cumulative.
- 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.
- 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.
| 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 |
- 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.
- 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.
- 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.
| 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.
| Total | Permission not granted |
Permission granted |
Percentage not granted |
Percentage granted |
|
|---|---|---|---|---|---|
| Total matters | 70 | 52 | 18 | 74.3 | 25.7 |
- 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.
| 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 |
- 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.
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.