Unlawful termination disputes

Part 6–4 of the Fair Work Act provides protection for workers who fall outside the scope of Part 3–1, creating a scheme very similar to that latter Part. However, the protection for these workers is limited to 'unlawful terminations' – that is, instances where they have been dismissed. Behaviour that would be considered 'adverse action' under Part 3–1 but does not involve dismissal is not covered.

This difference in scope is due to the constitutional head of power under which each Part is made. Part 3–1 is made under the Commonwealth's powers to legislate in relation to corporations and matters referred to it by the state governments, but Part 6–4 is made under the Commonwealth's power to legislate in relation to external affairs, including giving effect to obligations in international treaties. In this case, Part 6–4 embodies the Commonwealth's commitments under International Labour Organization Conventions to which it is a signatory.

The broad application of the general protections scheme means that not many applicants would need to utilise the unlawful termination provisions. This is reflected in the considerably smaller number of unlawful termination lodgments when compared with general protections disputes of either kind (refer to Table 10 and Table 11).

Table 10: Unlawful termination disputes – lodgments
No. of
applications lodged1
No. of
applications finalised
Manner finalised No. of applications
2013–14 2014–15 2013–14 2014–15   2013–14 2014–15
130 114 128 120 Certificate issued 9 15
Without
certificate issued
119 105
  1. 128 applications were lodged in 2012–13, 141 applications were lodged in 2011–12.

While there was a modest increase in the median number of days taken to finalise these matters, there was a significant increase in the 90th percentile measure of days taken to finalise matters. Given the relatively small number of lodgments made, any outliers will affect the data from year to year.

Table 11: Unlawful termination disputes – timeliness
  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 conference (days) 26 27 37 39 51 71 57 67
Lodgment to finalisation (days)1 34 32 25 35 87 102 75 131
  1. Lodgment to finalisation (days) includes matters that were finalised with or without a conference.

 

In Focus

General Protections Pilot

The staff telephone conciliation model, which has been successfully used in the unfair dismissal jurisdiction, has been extended to deal with general protections matters involving dismissal, after a successful pilot program in 2014–15.

The general protections provisions of the Fair Work Act apply where an individual has suffered an 'adverse action', such as being dismissed, in contravention of the provisions, for example, for exercising a workplace right.

When a general protections application involving a dismissal is made, the Fair Work Act requires the Commission to conduct a conference. Previously, these conferences were conducted by Commission Members, often face-to-face, requiring parties to come in to Commission premises.

The aim of the telephone conferences was to assist parties to resolve their dispute without the need for potentially costly court proceedings. If the discussions did not produce a resolution the Commission issued a certificate which enabled the applicant to take further action in the Federal Court or Federal Circuit Court.

The pilot, which began in September 2014, involved trained staff conciliators acting under a delegation from the President, conducting telephone conferences for general protections applications involving a dismissal from Western Australia, Queensland and the ACT.

The pilot program was designed to test the efficacy of staff conciliators conducting general protections conferences, to assist in addressing the steady increase in lodgments of these matters and to free up Members' time so they could undertake more complex work.

The matters were managed by a central case management team in the lead up to each conference.

The central case management team also facilitated a move to electronic files, saving the Commission the time and costs previously associated with the creation and maintenance of hard copy files.

The Commission engaged independent consultants, Inca Consulting, to review and report on the effectiveness of the pilot in relation to three key success measures: timeliness, client satisfaction and settlement rate.

The results were extremely positive, with 73 per cent of disputes involving staff conciliator conferences being settled, compared with settlement rates of 60 per cent for conferences convened by Commission Members.

The difference in settlement rate may be due to the ability of staff conciliators to specialise in these matters and to allocate more time to their resolution. The specialised training provided to conciliators also resulted in a consistent approach to the conferences and enabled the conciliators to share strategies to achieve outcomes acceptable to both parties.

The staff conciliators have this as their day-to-day work. This has enabled greater consistency in terms of the approach that is implemented.
 
Liz Priest, Commission conciliator.

Client satisfaction results were also pleasing. The satisfaction of parties was measured using a sample of those who participated in both Member and staff-convened conferences. The parties were surveyed on the application process, interaction with Commission staff, understanding of what would occur in a conference and the conduct of the conference.

The Inca report concluded that a majority of participants were satisfied with the conference process and that staff conciliators had maintained participant satisfaction.

One of the other key objectives of the General Protections Pilot was to have applications listed for a first conference more quickly, in line with the Commission's aim to resolve disputes in a manner that is 'just, quick and affordable'. By this measure, the pilot program succeeded, significantly reducing the time between lodgment and conference.

Ninety per cent of matters in the pilot program were the subject of a conference within 43 days of lodgment, compared with 59 days for matters that were not part of the pilot program.

The Inca report concluded that:

The General Protection Pilot has demonstrated in emphatic terms that centralised case management and the use of staff conciliators is a more efficient and effective arrangement than the traditional one. (p.19)

Deputy President Kovacic, who supervised the pilot, agreed it had been a great success.

From the applicant's perspective it means that they get to a conference quicker than they would if they were before a Member and the prospects of getting a negotiated outcome are also higher for a conciliator-convened conference.

The Commission introduced staff conciliator general protections conferences on a national basis from August 2015.

Photo showing a General Protections case management team member on the phone in front of their computer.

Image: The General Protections Pilot was supported by a central case management team based in the Commission's Canberra office.

 

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Photo showing a Commission staff conciliator conducting a telephone conciliation.

Case Study

General protections telephone conciliation

 

The following general protections matter was dealt with at a conciliation conference before a staff conciliator of the Commission. Conciliation conferences are conducted in private. Accordingly, parties have been de-identified. In this matter, the application did not appear to have any threshold jurisdiction issues and so proceeded through the usual case management process.

The applicant worked at a residential care facility. Her employment was terminated after several months, during her probationary period. The applicant alleged that her employment was terminated because of discrimination arising from a personal attribute listed in section 351(1) of the Fair Work Act.

The applicant made an application to the Commission to deal with a general protections dispute. The respondent was given an opportunity to respond in writing. The respondent denied the allegation, and alleged that the dismissal occurred due to concerns with the applicant's work performance, which were detailed in the written response.

A telephone conciliation conference was conducted by a staff conciliator of the Commission. The conference consisted of a joint session where each party was given the opportunity to make opening remarks to highlight their perspective of the dispute and to raise questions about the dispute with the other party.

The conciliator facilitated this discussion, to assist the parties to focus upon the core elements of the claim; she also raised points of clarification with each party in areas where the parties differed in their recollections or interpretation of events.

After the joint session, the conciliator spoke with each of the parties through a series of private sessions, identifying the parties' core interests and objectives, and reality-testing their expectations and settlement proposals.

This assisted the parties to find common interests, which meant they were able to resolve the matter efficiently.

The parties agreed to settle the application on the basis that members of the respondent's management team would undertake accredited workplace relations training concerning general protections, anti-bullying and discrimination obligations.

Each party chose to participate in the conference without a representative. The conciliator actively supported each party to express their perspective and interests.

The telephone conference format was particularly suitable in this matter. Given the parties were self-represented and the sensitive nature of the alleged conduct relied upon by the applicant in making the claim, it enabled the parties to participate from separate locations, without any requirement to be present in the same room.

 

Image: Commission staff conciliators conducted general protections conferences by telephone as part of the pilot in 2014–15.

 

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