Unfair dismissals

13,595

Applications lodged

13,415

Applications finalised

 

An employee is unfairly dismissed within the meaning of the Fair Work Act if the dismissal was harsh, unjust or unreasonable; was not a genuine redundancy; and was not consistent with the Small Business Fair Dismissal Code (if the employer is a small business).

An unfair dismissal application must be lodged within 21 days after the dismissal took effect, although the Commission can grant an extension of time in exceptional circumstances.

In line with the Fair Work Act, the Commission’s processes are quick, flexible and informal, and balance the needs of employers and employees. Unfair dismissal applications are usually referred for conciliation by specialist staff conciliators as a first step. With the assistance of a staff conciliator, the employee and employer attempt to resolve the dispute themselves. If a matter cannot be resolved with the assistance of a staff conciliator, it is referred to a Member of the Commission.

In many unfair dismissal cases, the parties are self-represented and the case is their first interaction with the Commission. The Commission’s website provides tools to help self‑represented parties understand the process and how the Fair Work Act applies to their case, including short videos, a quiz for employees about whether they are eligible to apply and a benchbook outlining processes and important decisions.

Unfair dismissals

Performance overview

In 2017–18:

  • 13,595 unfair dismissal applications were lodged
  • 99 per cent of applications (13,415) were finalised, with 50 per cent finalised within 31 days and 90 per cent within 90 days
  • the median number of days to a staff conciliation was 27 days from lodgment, well within the target of 34 days
  • 79 per cent of applications conciliated by staff (8,285) were resolved by the parties
  • 6 per cent of applications (779) were resolved by the Tribunal, through a final decision or order.

The website received 367,348 page views regarding unfair dismissal; 123,773 page views or downloads of the unfair dismissal benchbook; 23,793 views of the unfair dismissal virtual tour; and 79,168 views of the online eligibility quiz for unfair dismissal applications. Staff answered 19,376 telephone enquiries concerning unfair dismissal.

Performance discussion

In 2017–18, the Commission received 13,595 unfair dismissal applications, as shown in Table 2. This represents 43 per cent of total applications lodged in 2017–18.

While the number of lodgments was virtually unchanged between 2014–15 and 2015–16, in each of the last two reporting periods there has been a modest decrease of 4 per cent in the number of unfair dismissal applications lodged.

Table 2: Unfair dismissal—applications lodged and finalised
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.394—Application for unfair dismissal remedy1 13,595 14,135 14,694 14,624 13,415 14,587 15,028 15,177

FWA = Fair Work Act

1 Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

Commissioner Wilson and a justice group

Commissioner Wilson with WEstjustice Community Legal Centre train the trainer program participants and Commission staff in Melbourne

Finalisation of cases

Consistent with results in previous years, a large majority of unfair dismissal applications were finalised without a formal hearing—18 per cent were either resolved or discontinued before staff conciliation, 62 per cent were resolved at conciliation and 14 per cent were resolved after conciliation but before a formal hearing.

Of the total unfair dismissal applications finalised in 2017–18, only 1 per cent (159) were resolved by a decision of a Member that the dismissal was harsh, unjust or unreasonable. This was consistent with results in previous years.

Overall, 6 per cent of unfair dismissal matters were finalised by a decision or order issued by a Member in 2017–18. In those 779 matters, the dismissal was found to be harsh, unjust or unreasonable in 20 per cent of cases, compared with 18 per cent in 2016–17.

Table 3 sets out how unfair dismissal matters were finalised in 2017–18.

 

Table 3: Unfair dismissal—finalisation of matters
Outcome 2017–18 2016–17 2015–16 2014–15
Resolved before conciliation 2,379 2,425 2,130 2,156
Resolved at conciliation 8,285 8,880 8,529 8,788
Resolved after conciliation and before a formal hearing 1,935 2,218 2,808 2,654
Resolved after hearing and before decision 37 36 104 52
Finalised by decision 779 1,028 1,457 1,527
Finalised by administrative dismissal 321 320 362 288
Finalised: jurisdiction objection upheld 195 401 769 890
Finalised at arbitration: application dismissed 104 125 130 161
Finalised at arbitration: application granted 159 182 196 188
Total finalisations 13,415 14,587 15,028 15,177
Applications granted, as a proportion of total decisions 20% 18% 14% 12%
Applications granted, as a proportion of finalisations 1% 1% 1% 1%

Staff conciliation outcomes

Conciliation outcomes are agreed by the parties with the assistance of the Commission’s specialist staff conciliators, who facilitate conferences with the parties soon after lodgment of an application. The conferences are usually held by telephone to reduce the need for parties and conciliators to spend time and money on travel.

Conciliation is a highly effective process. In 2017–18, a conciliation conference was held in 10,491 matters. The parties resolved the matter by agreement in 79 per cent of cases.

As well as resolving their unfair dismissal application, the parties sometimes seek to resolve other monetary or non-monetary issues—such as payment of outstanding entitlements or provision of references—through conciliation. While the parties themselves resolve the matters, staff conciliators can assist with drafting terms of settlement.

Table D1 in Appendix D provides a breakdown of the outcomes of matters resolved at staff conciliation as reported to the Commission. In 2017–18, 62 per cent (5,171) of conciliation resolutions involved both monetary and non-monetary items; 20 per cent (1,650) were resolved on a purely non‑monetary basis; and 1 per cent (60 conciliations) resulted in an employee being reinstated.

Table D2 in Appendix D provides details of monetary amounts (including, but not limited to, compensation) agreed by the parties as part of the terms of settlement. In a substantial majority of matters—84 per cent (5,512)—the payments were for less than $10,000.

Table D3 in Appendix D provides information regarding the size of employers who participated in conciliation conferences in unfair dismissal matters, based on the information provided by employers.

Matters finalised by Members

If an application is not resolved through conciliation or withdrawn, it is dealt with by a Member. The Member considers any jurisdictional objections that were not dealt with earlier in the process, any other bases for dismissing the application, and the merits of the application.

Consideration of objections by the employer

If an employer believes that the Commission does not have the power under the Fair Work Act to deal with the employee’s claim, the employer can object to the application.

In 2017–18, the Commission heard 268 matters in which one or more objections were raised by the employer. Of those matters, 73 per cent (195) were upheld in favour of the employer, resulting in the application being dismissed (as shown in Table D4 in Appendix D).

The most common successful objections related to the timeliness of the employee’s application, the duration of the employee’s period of employment, and whether the employee had been dismissed.

Of the 73 matters in which the Commission did not uphold the employer’s objection(s), the Commission granted the employee an extension of time to lodge the application in 32 per cent of cases (23 matters).

Significant decision—is an Uber driver an employee?

In an example of a decision which considered a jurisdictional objection, the Commission found that an Uber driver is not an employee. As a result, the Uber driver’s unfair dismissal application was dismissed by the Commission. You can read the decision in Kaseris v Rasier Pacific V.O.F. at [2017] FWC 6610.

Dismissal on other grounds

The Commission can dismiss unfair dismissal applications on other grounds not raised by the employer as an objection. Under s.587 of the Fair Work Act, an application can be dismissed if it was not made in accordance with the Fair Work Act, is frivolous or vexatious, or has no reasonable prospect of success. Under s.399A of the Fair Work Act, an application can be dismissed for failure to attend a conference or hearing, failure to comply with a decision or order, or failure to discontinue an application after settlement.

Where it is clear on the face of an application that the applicant has not served the minimum employment period required to make an unfair dismissal claim, the matter is referred to the panel head for determination.

In 2017–18, the Commission dismissed a total of 321 unfair dismissal applications for one or more reasons not related to objections made by the employer, as shown in Table D5 in Appendix D. Of the 70 matters that were dismissed by a panel head under s.587 of the Fair Work Act, in 40 per cent of cases (28 matters) the employee had not met the minimum employment period, and in 63 per cent of cases (44 matters) the application was incomplete or the applicant had not paid a filing fee or been granted a fee waiver.

Significant decision—when does a filing fee have to be paid?

The Commission decided that it can still consider an unfair dismissal application even if the filing fee was not paid at the same time as the application was lodged or within the 21-day time limit for lodging an unfair dismissal application. It found that the application was valid even though the employee emailed an application to the Commission on a Friday but the fee was not paid until the following Monday.

In the same case, the Commission also decided that it is not necessary for all of the attachments to an application to be received in order for it to be validly made. In this case, when the application was emailed on the Friday, two of the three attachments were missing. The missing attachments were not received until six days after the 21-day time limit. The Commission rejected the argument that the application was invalid because it was incomplete when it was lodged. You can read the decision in Bonnar v Rail Industry Safety & Standards Board at [2018] FWC 2151.

Consideration of the merits of an application

A decision about the merits of an unfair dismissal application concerns whether the dismissal was ‘harsh, unjust or unreasonable’ as defined in the Fair Work Act.

In 2017–18, Members made 263 decisions about the merits of applications, which represented 2 per cent of all finalised unfair dismissal cases. In 40 per cent (104) of those decisions, the Member dismissed the application, determining that the dismissal had been fair.

In the remaining 60 per cent (159) of the applications that were considered on their merits, Members granted remedies for unfair dismissal in the large majority of cases. The remedies were:

  • monetary outcomes, in 69 per cent of cases (110 applications)
  • reinstatement plus compensation for lost remuneration, in 11 per cent (17 applications)
  • reinstatement without compensation for lost remuneration, in 4 per cent (six applications).

The median amount awarded as compensation in 2017–18 was $6,971, which is the equivalent of 4.3 weeks’ pay, as shown in Table D8 in Appendix D.

A remedy was not granted in 4 per cent of decisions (seven applications), and was yet to be determined at the end of 2017–18 in 12 per cent of decisions (19 applications).

Details of the decisions and remedies granted in 2017–18 are shown in tables D6 to D9 in Appendix D.

Timeliness

As shown in Table 4, the Commission met its portfolio budget statements key performance indicator for timeliness in 2017–18: a median of 34 days from lodgement of an unfair dismissal application to a staff conciliation conference. The median in 2017–18 was 27 days.

The overall time from lodgement to finalisation of matters improved in 2017–18, with unfair dismissal applications finalised in a median of 31 days and 90 per cent of matters finalised within 90 days of lodgment. This builds on the improved performance achieved in 2016–17.

Table 4: Unfair dismissal—timeliness
  Days elapsed
  In 50% of matters In 90% of matters
Process 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.394—Unfair dismissal—lodgment to conciliation 27 34 34 28 37 44 54 42
FWA s.394—Unfair dismissal—lodgment to finalisation 31 37 42 35 90 102 123 133

FWA = Fair Work Act

Significant decisions—when can a party be represented by a lawyer or paid agent?

Under the Fair Work Act, a lawyer or paid agent must seek permission to represent a person before the Commission. This includes making an application or submission on someone else’s behalf.

Few decisions have previously considered what it means to ‘represent’ a person for the purposes of s.596 of the Fair Work Act. In October 2017, a Full Bench found that permission is required if a ‘shadow lawyer’ substantially participates in a hearing. This is the case even if the lawyer does not speak on behalf of a party during a hearing.

In the unfair dismissal matter, the employer was represented by one of its employees (an employee relations specialist) but the employee was also assisted by a shadow lawyer from an external law firm. Although the lawyer did not speak during the hearing, the lawyer had substantially prepared the case for the employer, including drafting submissions, witness statements, questions for examination in chief and cross-examination and the ‘forensic strategy’ for the hearing. The employer also sought that the employee pay the legal costs it was charged for the lawyer’s attendance at the hearing.

The Full Bench noted that permission is not generally required for a party to be represented for activities undertaken prior to, or outside, a conference or hearing. This includes the making of written applications and written submissions and the lodgment of documents and correspondence with the Commission. You can read the decision in Stephen Fitzgerald v Woolworths Limited at [2017] FWCFB 2797.

The Full Bench decision was subsequently considered in another unfair dismissal matter where an employee asked the Commission to rule that the employer could not obtain legal advice in the lead-up to a hearing. The Commission did not grant the order, distinguishing from Fitzgerald in finding that a party is not required to seek permission under the Fair Work Act or the Fair Work Commission Rules to obtain legal advice, even after an application is made to the Commission. You can read the decision in Dr Neil Stringfellow v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO at [2018] FWC 1136.