Unfair dismissal matters are a substantial part of the Commission’s annual workload. Unfair dismissal applications represent almost 40 per cent of applications made to the Commission.
These can be challenging matters for the Commission because parties are often infrequent or ‘one-time’ users of the Commission who may be self-represented and may have limited knowledge of our powers and processes or the provisions of the Fair Work Act 2009 (Fair Work Act).
Mitigating these factors has been a major focus of the Future Directions change program. Measures implemented include:
- creation of a video virtual tour of the processes and procedures of an unfair dismissal matter (see In focus—Virtual tour)
- provision of additional information materials for self-represented parties
- creation of an online unfair dismissal benchbook
- inclusion of a dedicated small business portal on the Commission’s website, with a specific page on unfair dismissal and small business
- reviewing online forms for lodging applications and responses
- a pro bono pilot program for jurisdictional matters, and
- holding mock unfair dismissal hearings (see In focus—Mock Hearings).
|Table 12—Unfair dismissal—lodgments|
|Total lodgments||14 027||14 818||14 797|
Unfair dismissal process
Unfair dismissal claims follow a standard process:
- employee lodges an application through the Registry, to which the employer can respond
- the parties are invited to participate in a voluntary conciliation conducted by expert senior staff, usually by telephone
- if the matter is unresolved at conciliation or if there is an objection, the matter is listed for a conference or hearing before a Commission Member.
The lodging of applications through the Registry did not follow the previous year’s patterns, with a spike of around 20 per cent in the period from July to September 2013 and a slump around April and May 2014.
Chart 12—Unfair dismissal applications lodged—Monthly comparison
For source data see Table K8.
This spike made managing the flow of referrals to conciliation problematic, a problem which was compounded by staffing shortages in the conciliator area over the year. During the year, five positions became vacant, and Australian Public Service Recruitment Guidelines led to longer than usual delays in replacing these roles.
The combination of these two factors created a backlog of cases which was not cleared until May 2014. As a result, the Commission did not meet the KPI of finalising conciliations in a median time of 34 days. For the 2013–14 year the median time from the lodgment of an application to the finalisation of conciliation was 46 days.
Measures have been taken to address the issue, and the KPI is considered achievable in 2014–15.
Conciliation remained a highly effective resolution process for unfair dismissal applications, with a settlement rate of 79 per cent. See Table 13 for a summary of settlement results, or refer to Table K6 for a full breakdown of settlement results.
|Table 13—Unfair Dismissal Conciliation settlement rate|
|Total settled matters||8843||8659||81||79|
|Total NOT settled matters||2043||2313||19||21|
|Total resulted conciliations||10 886||10 972||100||100|
The conciliation process is a major success. Its high resolution rate meant only 3716 matters were required to proceed past conciliation, with only 8 per cent of matters requiring to be resolved by a decision or order at a conference or hearing.
For a breakdown of conciliations by size of employer see Table K7.
|Table 14—Unfair dismissal—finalised after conciliation|
|Stage of proceeding||2012–13||2013–14|
|Matters finalised after conciliation and before a formal proceeding before a Commission Member||2093||2475|
|Matters withdrawn after conference/hearing and before decision/order||49||41|
|Matters finalised by administrative dismissal||N/A||459|
|Matters finalised at jurisdiction||258||374|
|Matters finalised at arbitration||402||367|
|Total matters finalised after conciliation||2802||3716|
The Commission gained new powers from 1 January 2013 to administratively dismiss applications lodged after that date if a party failed to attend a conference or hearing, comply with a direction or discontinue an application after the conclusion of a settlement agreement.
Overall, in the 2013–14 year, 459 matters were administratively dismissed. Of those matters dismissed, 98 were dismissed under the new provision. Of the matters remaining after administrative dismissal, 374 were finalised at jurisdiction hearings and 367 were finalised at arbitration.
Chart 13—How matters were finalised
For source data see Table K9.
In jurisdiction hearings, the objection was upheld in 70 per cent of matters. For a full breakdown of jurisdictional hearing results, refer to Table K10. In 48 per cent (175) of the 367 matters finalised at arbitration, the dismissal was found to be fair. In the remaining 192 matters the remedies were:
- compensation (150 matters)
- reinstatement (9 matters)
- reinstatement and lost remuneration (25 matters), and
- no remedy granted (8 matters).
|Table 15—Unfair dismissal arbitration— hearing/conference results—outcomes|
|Tribunal decision||No. of decisions|
|Objection upheld—application dismissed||258||374|
|Application dismissed (s.587)*||-||96|
|Application dismissed (s.587)—dismissal by Panel Head*||-||265|
|Application to dismiss (s.399A)—granted*||-||98|
|Application dismissed—dismissal was fair||256||175|
|Application granted—reinstatement and lost remuneration||12||25|
|Application granted—no remedy granted||14||8|
|Total arbitration results
* The administrative framework to capture data under these parts commenced operation in July 2013. Earlier data is not available.
Table 16 sets out the time taken from lodgment of an unfair dismissal application to conciliation and then finalisation. This year there was an increase in the time taken from lodgment to conciliation and from lodgment to finalisation. As part of the second phase of Future Directions, the Commission will implement benchmarks for unfair dismissal matters aimed at improving our timeliness.
|Table 16—Unfair dismissal—timeliness|
|Type of application||KPI||Median time (days)|
|50% of matters||90% of matters|
|Lodgment to first conciliation1||34||28||25||46||36||40||61|
|Lodgment to finalisation2||None||49||30||51||108||114||146|
(1) 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 WR Act by virtue of items 11 and 12, Schedule 2 to the Transitional Provisions Act. (2) 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.
This year there were 79 appeals against unfair dismissal decisions, representing a 36 per cent increase (21 matters) from 2012–13.
The appeal was dismissed in 62 per cent of matters. See Table 17 for further information.
|Table 17—Unfair dismissal—appeals|
|Total||13 (22%)||30 (38%)||45 (78%)||49 (62%)||58||79|