Fair Work Commission

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

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.

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.

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.

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.

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)

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).

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.