An employee who falls outside the coverage of the Fair Work Act’s general protections provisions (Part 3–1) may be eligible to lodge an unlawful termination application under Part 6–4 of the Fair Work Act.
The broad application of the general protections provisions means that not many applications rely on the unlawful termination provisions, which apply mainly to non-national system employees. This is reflected in the considerably lower number of unlawful termination applications made to the Commission each year, compared with general protections dispute applications (both involving and not involving dismissal).
The processes in the Fair Work Act for dealing with unlawful termination applications are broadly similar to those for general protections disputes. An application must be lodged within 21 days after the applicant’s employment was terminated.
The Commission must attempt to resolve the dispute through private conference and, if unsuccessful, must issue a certificate stating that it is satisfied that all reasonable attempts at resolution have been, or are likely to be, unsuccessful.
The parties can consent to the Commission making a binding decision through consent arbitration. If the parties do not agree to arbitration, the employee can make an application to the Federal Court of Australia or Federal Circuit Court of Australia to deal with the matter. The Commission must advise the parties if there is no reasonable prospect of successfully resolving the dispute either during consent arbitration before the Commission or through a court application.
- 90 unlawful termination applications were lodged
- 88 applications were finalised, of which 77 (88 per cent) were resolved by the Commission’s conference process without a certificate being issued.
The number of unlawful termination applications decreased by 17 per cent, to 90 in 2017–18 from 109 in 2016–17. As shown in Table 15, the small total was consistent with numbers of applications lodged in each of the past four years.
The Commission finalised 88 unlawful termination applications in 2017–18. In 12 per cent of cases, the Commission issued a certificate stating that it was satisfied that all reasonable attempts to resolve the dispute (other than by consent arbitration) had been, or were likely to be, unsuccessful. This was consistent with 2016–17, when a certificate was issued in 11 per cent of cases.
|No. lodged||No. finalised||No. of matters|
|Matter type||2017–18||2016–17||2015–16||2014–15||2017–18||2016–17||2015–16||2014–15||Manner finalised||2017–18||2016–17||2015–16||2014–15|
|FWA s.773—Unlawful termination||90||109||81||114||88||111||82||120||Certificate issued||11||12||10||15|
|Without certificate issued||77||99||72||105|
FWA = Fair Work Act
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.
The median time elapsed from application lodgment to the Commission’s first conference with parties to an unlawful termination dispute has steadily improved over the past four reporting periods, as shown in Table 16. Similarly, the Commission held its first conference within 44 days in 90 per cent of matters in 2017–18, 11 days earlier than in 2016–17 and 19 days earlier than in 2015–16.
The majority of unlawful termination applications are withdrawn by the employee—of the 88 cases finalised in 2017–18, more than 50 per cent were withdrawn. As a result, the median number of days taken for the Commission to finalise a case is lower than the median number of days from lodgment to first conciliation.
In 2017–18, unlawful termination cases were finalised in a median of nine days from lodgment. This was four days earlier than in 2016–17 and a significant improvement on earlier reporting periods.
|In 50% of matters||In 90% of matters|
|FWA s.773—Unlawful termination—lodgment to first conference||22||24||30||39||44||55||63||67|
|FWA s.773—Unlawful termination—lodgment to finalisation||9||13||20||35||45||63||87||131|
FWA = Fair Work Act