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  • Part 3: Performance
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2015–16 Major application types: Unfair dismissals

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Under the Fair Work Act a person has been unfairly dismissed if the Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal:

  • was harsh, unjust or unreasonable
  • was not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business)
  • was not a case of genuine redundancy.

Unfair dismissal matters are a substantial part of the Commission's workload, representing more than 40 per cent of applications made to it in 2015–16.

For the past five years, unfair dismissal application numbers have been steady at about 14,700 annually.

For many applicants and employers, their unfair dismissal matter is their first interaction with the Commission. If they want to be legally represented, the Commission's permission must be sought and granted.

To help resolve matters as quickly as possible and without the need for formal proceedings, unfair dismissal applications are generally referred to conciliation by a specialist staff member as a first step.

Conciliation is a highly effective process, with close to four out of five referred applications resolved at this stage.

In 2015–16, the median time from lodgment to a conciliation conference being held was 34 days.

In total, nearly 90 per cent of unfair dismissal applications were finalised in 2015–16 without requiring a decision or order of the Commission, which is consistent with previous years.

As a result, while unfair dismissals comprised 40 per cent of applications to the Commission, they represented just 12 per cent of matters concluded by a decision or order during the year.

For self-represented parties whose applications proceed to a conference or hearing before a Commission Member, the Commission has developed tools to assist in navigating unfair dismissal laws, including short videos, an eligibility quiz and a comprehensive benchbook.

Unfair dismissal process

Unfair dismissal applications follow a standard process:

  1. An applicant lodges an application with the Commission, to which the employer must respond
  2. Staff manage the application up to the point of conciliation, answering queries and providing information to prepare for conferences
  3. The matter is listed for a voluntary telephone conciliation conducted by specialist conciliators
  4. If a matter is not resolved with the conciliator's assistance, it is listed before a Commission Member

Performance

In 2015–16 the Commission:

  • processed 14,694 unfair dismissal applications
  • conducted 10,850 unfair dismissal conciliations
  • received 131,099 visits to the online eligibility quiz
  • received 34,738 website visits to the Unfair Dismissal Benchbook

Figure 6: Unfair dismissal applications lodged — monthly comparison

Figure 6: Unfair dismissal applications lodged — monthly comparison

Figure 6 represents data from Appendix D, Table 61.

Matters finalised prior to conciliation

A total of 2,130 unfair dismissal applications were resolved or discontinued while still in the early stage of the case management process, prior to conciliation. This represents 14 per cent of all unfair dismissal applications finalised in the year.

Figure 7: How matters were finalised

Figure 7: How matters were finalised

Figure 7 shows how unfair dismissal matters were finalised in 2015–16. It represents data that can be found in Appendix D, Table 57.

Table 9: Unfair dismissal — conciliation settlement rate
Result type Year to date total Per cent
  2015–16 2014–15 2013–14 2012–13 2015–16 2014–15 2013–14 2012–13
Total settled matters 8,529 8,788 8,659 8,843 79 79 79 81
Total NOT settled matters 2,321 2,337 2,313 2,043 21 21 21 19
Total resulted conciliations 10,850 11,125 10,972 10,886 100 100 100 100

Conciliation

During 2015–16, 10,850 applications were conciliated by a specialist staff member and 8,529 (79 per cent) were resolved at this stage.

The conciliation settlement rate of close to four out of five was consistent with previous years, with 79 per cent of referred matters settled in both 2014–15 and 2013–14, and 81 per cent in 2012–13. Ninety eight per cent of 2015–16 conciliations were by telephone.

Conciliation outcomes are generally negotiated by the parties with the help of the conciliator, and can include reinstatement, payment of money, other terms, or a combination of these.

In 2015–16, 6,834 (63 per cent) of conciliation settlements resulted in both payment of money and non-monetary terms, 1,624 (15 per cent) were settled with non-monetary terms and 71 (0.7 per cent) resulted in reinstatement.

The Commission publishes data on conciliation outcomes so parties preparing for conferences have as much information as possible on how previous matters have been finalised.

A further 2,808 matters were withdrawn after conciliation but ahead of a conference or hearing before a Commission Member.

Table 10: Unfair dismissal, conciliation — Outcomes
Result type Year to date total
  2015–16 2014–15 2013–14 2012–13
Settled: Monetary 1,712 1,750 1,846 1,669
Settled: Monetary + non-monetary 5,122 5,147 4,740 4,609
Settled: Non-monetary 1,624 1,820 2,008 2,136
Settled: Reinstatement 35 47 30 79
Settled: Reinstatement + monetary 17 15 15 26
Settled: Reinstatement + non-monetary 11 4 14 19
Settled: Reinstatement, monetary + non-monetary 8 5 6 8
Total Settled matters 8,529 8,788 8,659 8,843
Not Settled at Conciliation 2,286 2,301 2,252 1,963
Not Settled: Settlement collapsed 35 36 61 80
Total NOT Settled matters 2,321 2,337 2,313 2,043
Total resulted conciliations 10,850 11,125 10,972 10 ,886

In 2015–16 where a monetary payment formed part of a settlement at conciliation, in 30 per cent of cases the amount was less than $4,000 and in 60 per cent of cases it was less than $8,000. This is consistent with previous years.

Table 11: Range of outcomes where a settlement involved monetary payment 2015–16
Range Number Percent of settlements involving monetary payment
$0 to $999 539 8
$1,000 to $1,999 922 13
$2,000 to $3,999 608 9
$4,000 to $5,999 236 3
$6,000 to $7,999 1,866 27
$8,000 to $9,999 153 2
$10,000 to $14,999 57 1
$15,000 to $19,999 1,288 19
$20,000 to $29,999 19 0
$30,000 to $39,999 717 10
$40,000 – maximum amount 454 7

Matters dealt with by Commission Members

Jurisdictional objections to unfair dismissal applications and those matters not resolved in conciliation are dealt with by Commission Members.

Jurisdictional issues

Commission Members can hear a jurisdictional objection before conciliation while also determining the merits of the application. During the year the Commission determined 1,034 jurisdictional challenges to unfair dismissal applications, upholding 769 (74 per cent). The objection number has been higher in the past two years due to a 2014–15 administrative change in which all matters filed outside the statutory 21 day limit are referred directly to a Commission Member to determine whether to grant an extension of time. See Table 12 for a full breakdown of jurisdictional hearing results.

Table 12: Unfair dismissal — hearing/conference results — jurisdiction
  2015–16 2014–15 2013–14 2012–13
Objection upheld 769 890 374 258
Applicant not dismissed 52 46 45 36
Employer not national system employer 8 13 5 2
Frivolous, vexatious 0 0 0 2
Genuine redundancy 49 83 34 22
Irregular and/or casual employee 0 3 1 0
Minimum period of employment not served 99 109 50 44
Multiple applications 0 2 0 1
No award, agreement or high income employee 18 34 27 13
No employment relationship 13 19 25 10
No extension of time–Up to and including 7 days late 153 180 51 17
No extension of time–More than 7 days late 342 368 127 82
No reasonable prospect of success 6 5 9 23
Termination consistent with Small Business Fair Dismissal Code 16 12 8 8
Unknown 24 33 6 11
Objection dismissed 265 266 159 120
Applicant dismissed 13 25 19 15
Application within time 30 20 N/A N/A
Award, agreement and/or not high income employee 13 10 3 5
Employment relationship 5 8 28 15
Extension of time–
up to and including 7 days
106 82 34 30
Extension of time–
more than 7 days
50 72 29 20
Minimum period of employment served 33 28 17 8
National system employer 0 3 0 1
No genuine redundancy 8 15 18 13
No multiple applications 0 0 3 0
Not frivolous, vexatious 2 0 0 5
Not irregular casual employee 3 2 5 5
Reasonable prospect of success 1 5 3 1
Termination inconsistent with Small Business Fair Dismissal Code 5 5 4 3
Unknown 6 7 12 4
Total objection results Australia-wide1 1,034 1,156 533 378

1 An application may be found in or out of jurisdiction on numerous grounds. Accordingly, the reasons for jurisdictional results are not cumulative.

Other reasons for dismissing applications

In addition to upholding jurisdictional objections, Commission Members dismissed 125 unfair dismissal applications under s.587 of the Fair Work Act and the Termination of Employment Panel Head dismissed 112 applications during the case management process. A further 125 applications were dismissed under s.399A of the Fair Work Act.

Table 13: Other reasons for dismissing unfair dismissal applications
  2015–16 2014–15 2013–14
Application dismissed (s.587) 125 77 96
Application dismissed: (s.587) dismissed by Panel Head 112 107 265
Failure to attend 1 0 4
Incomplete application 21 12 12
Minimum employment period not met 40 52 166
No notice of discontinuance filed after settlement 8 0 6
No reasonable prospect of success 12 7 14
Non-compliance with directions 3 4 5
Premature application 0 0 6
Unpaid application 42 38 54
Valid reason for non-attendance 0 0 N/A
Verbal or written advice of discontinuance 0 0 14
Application to dismiss (s.399A): granted 125 104 98
Total 362 288 459

Merits of applications

The Commission made decisions on the merits of 326 unfair dismissal applications in 2015–16, or two per cent of all applications finalised in the year. Of these, it found in 130 cases (40 per cent) that the dismissal was fair and in 196 (60 per cent) that the dismissal was unfair.

The remedies it awarded for dismissals found to be unfair were:

  • compensation (135 matters)
  • reinstatement (12 matters)
  • reinstatement and lost remuneration (18 matters)
  • remedy to be determined (24 matters)
  • no remedy granted (7 matters)
Table 14: Unfair dismissal arbitration — hearing/conference results — outcomes
  2015–16 2014–15 2013–14 2012–13
Application dismissed:
dismissal was fair
130 161 175 256
Application granted: Compensation 135 141 150 112
$0–$999 5 3 7 8
$1,000–$1,999 10 15 9 12
$2,000–$3,999 18 17 20 15
$4,000–$5,999 16 21 18 13
$6,000–$7,999 14 15 12 8
$8,000–$9,999 11 10 17 8
$10,000–$14,999 21 20 18 14
$15,000–$19,999 13 14 8 7
$20,000–$29,999 15 15 13 8
$30,000–$39,999 6 5 8 8
$40,000–maximum amount 4 2 10 3
No loss of wages 0 1 4 2
Unknown1 2 3 6 6
Application granted: no remedy granted 7 10 8 14
Application granted: reinstatement 12 12 9 8
Application granted: reinstatement and lost remuneration 18 15 25 12
$0–$999 0 0 0 1
$1,000–$1,999 0 1 1 0
$2,000–$3,999 2 1 2 1
$4,000–$5,999 1 1 1 0
$6,000–$7,999 2 1 2 0
$8,000–$9,999 1 0 1 1
$10,000–$14,999 0 2 1 1
$15,000–$19,999 2 1 3 0
$20,000–$29,999 1 2 1 0
$30,000–$39,999 2 1 1 1
$40,000–maximum amount 1 0 4 0
No loss of wages 1 2 4 5
Unknown2 2 3 4 2
Application granted:
remedy to be determined
24 10 N/A N/A
Total arbitration results
Australia-wide
326 349 367 402

1 An application may be found in or out of jurisdiction on numerous grounds. Accordingly, jurisdictional results are not cumulative.

2 Unknown as activity incomplete.

Timeliness KPI

The Commission's KPI for unfair dismissals is to maintain or improve the time from lodging an application to conducting a conciliation conference, with a target time of 34 days. In 2015–16, the median time from lodgment to a conciliation conference increased from 28 days in 2014–15 to 34 days (see Table 15).

Table 15: Unfair dismissal — timeliness
s.394 applications Percentage of matters
  KPI 50% 90%
    2015–16 2014–15 2013–14 2012–13 2015–16 2014–15 2013–14 2012–13
Lodgment to first conciliation (days) 34 34 28 46 25 53 42 61 40
Lodgment to finalisation (days) 1 None 42 35 51 30 123 133 146 114

1 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.

The year ahead

The Commission surveys conciliation participants to determine their level of satisfaction with the process and will continue to do so. In the year ahead the focus will be on: maintaining or improving overall satisfaction rates; measuring and improving satisfaction with information materials and resources available and how well these prepared participants for a conference; and measuring satisfaction with conciliator impartiality. In 2015–16, more than 75 per cent of those who responded indicated the process met or exceeded their expectations and more than 82 per cent that they were satisfied with the service they received.

In 2016–17 the Commission will also evaluate the Workplace Advice Clinic, a pilot program providing free legal assistance to unrepresented applicants in unfair dismissal and general protections matters in Melbourne, with a view to extending it to other regions.

Work is also underway to establish additional timeliness benchmarks to both provide greater accountability and better equip parties with realistic expectations of how long their matters are likely to take. As there are already established conciliation timelines, the focus is on benchmarks for the time taken from lodgment to finalisation by way of a substantive or jurisdictional hearing.

Keep reading the annual report

Operational performance: Major application typesMajor application types: Unfair dismissalMajor application types: General protections & unlawful termination disputesMajor application types: Anti-bullyingMajor application types: Enterprise agreements

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        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
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        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
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        • Requirements relating to a period of suspension
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  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
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      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
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      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
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  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
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          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
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  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
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      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
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      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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