The remedies available to the Fair Work Commission when dealing with applications are determined by the Fair Work Act 2009.
A remedy for unfair dismissal may include:
If you choose to participate in conciliation, a Commission Conciliator will hold discussions between the employee and the employer to reach an agreed settlement. Most applications for unfair dismissal remedy settle at conciliation.
The conciliations are private, and the settlements may include:
If the application is not resolved at conciliation, the case will proceed to a conference or hearing before a Commission Member.
The Member who hears the case will consider all of the factors listed below. If they are then satisfied that the employee was unfairly dismissed, they may order:
In considering the application, the Member must take into account:
This page contains information about the results and outcomes of applications for unfair dismissal remedy made under s.394 of the Fair Work Act 2009. The data is provided so that parties have information about how previous matters have been finalised.
This data will be updated annually at the time of publishing the Fair Work Commission’s annual report. The annual report is published in October for the preceding financial year activities.
It is important to note that this information cannot be used to predict the outcome of any particular matter, as the facts and circumstances of each case will be different.
Table 1 below shows that between 78.9% and 81.2% of matters settle at conciliation by an agreement between the parties.
|Settled: Monetary + non-monetary||4906||4740||5147||53.9||54.7||58.6|
|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 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|
Table 2 below shows a breakdown of the contents of settlement agreements made at conciliation. The table shows that 49% of monetary payments are below $4000 and 79% are below $8000.
Where agreements reached at conciliation involve the payment of money, no distinction is made between payment of compensation and payment of outstanding entitlements that may form part of the agreement.
|Settlements involving money||6917||100|
|Settlement involving non-monetary*|
|Employment Separation Certificate||297||NA|
|Payment in kind||73||NA|
|Provision of information or undertaking||1509||NA|
|Return of Property||144||NA|
|Statement of service||5124||NA|
|Withdrawal of allegation(s)||27||NA|
|Withdrawal of application||896||NA|
* Parties can agree to more than 1 non-monetary outcome at conciliation. Accordingly, settlements involving non-monetary compensation are not cumulative figures.
If an application for an unfair dismissal remedy cannot be resolved by the parties, the Commission can make a decision about the application. Table 3 below shows the aggregated results of final determinations made by the Commission.
This table shows that 88% of applications determined by the Commission were dismissed because the dismissal was found to be fair; for want of jurisdiction or other reasons, including that the application has no reasonable prospect of success (ss. 399A and 587 of the Fair Work Act 2009).
|Arbitrated proceedings final results||No. of final outcomes||% of final outcomes|
|Total applications dismissed||1339||88|
|Objection upheld – application dismissed||890||58|
|Application dismissed – dismissal was fair||161||11|
|Application dismissed – s.399(A) and s.587||288||19|
|Total applications granted||188||12|
|Application granted – compensation||141||9|
|Application granted – reinstatement||12||1|
|Application granted – reinstatement and lost remuneration||15||1|
|Application granted – no remedy granted||10||0.5|
|Application granted – remedy to be determined||10||0.5|
|Total final results Australia-wide||1527||100|
Where an application for unfair dismissal remedy is granted, the Commission may only grant reinstatement, compensation and/or lost remuneration.
Table 4 below shows a breakdown of the amounts of compensation awarded where the Commission found a dismissal to be unfair. The table shows that in 47% of cases where a payment of money was awarded, the payment awarded was less than $10,000.
|Application granted: compensation||141||75|
|No loss of wages||1||1|
|Application granted: reinstatement||12||6|
|Application granted: reinstatement and lost remuneration||15||8|
|No loss of wages||2||1|
|Application granted: no remedy granted||10||5|
|Application granted: remedy to be determined||10||5|
In compiling this information all efforts have been made to ensure statistical accuracy. However, minor revisions in figures may occur. The Commission's annual report, which is tabled in the Australian Parliament each year, is the official statistical record of Commission activities.