Fair Work Commission

The processes and procedures set out in this practice note apply to all proceedings except those in Western Australia, South Australia and the Northern Territory.

Commencement date

1. This practice note commences on 9 December 2014.

Application

2. The practice note applies to unfair dismissal applications lodged with the Fair Work Commission.
    
3. The purpose of this practice note is to provide procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which do not settle at or which do not proceed to conciliation conducted by conciliators.
    
4. In accordance with s.590 the Commission may inform itself in relation to a matter before it in such a manner as it considers appropriate. Accordingly, a Member may vary the operation of this practice note by direction or order.
    
5. The processes and procedures set out in this practice note apply to proceedings in all States and Territories except Western Australia, South Australia and the Northern Territory. In those states matters are normally allocated to Members and listed for directions hearings; please contact the relevant state Registry if you have any questions about the processes and procedures.

Definitions

6. In this practice note:

Act means the Fair Work Act 2009

applicant means a person who has made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009

Commission means the Fair Work Commission

conciliation means the conduct of a conciliation to resolve an unfair dismissal application that is conducted by a conciliator, usually by telephone, prior to the matter being referred to a Member

conciliator means a person appointed to conduct conciliation of unfair dismissal applications prior to the matter being referred to a Member for arbitration

decision means a decision, order, determination or other procedural ruling made by a Member of the Commission

conference means a conference conducted under s.398 of the Act where the Member makes a final determination about the unfair dismissal application. Conferences are conducted in private

directions means a notice issued by the Commission to the parties which sets out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents

employee organisation means an employee organisation registered under the Fair Work (Registered Organisations) Act 2009

employer organisation means an employer organisation registered under the Fair Work (Registered Organisations) Act 2009

hearing means a proceeding before the Commission under s.399 of the Act to allow the parties to present their evidence and submissions in relation to a matter. Unless the Member orders otherwise hearings are open to the public

interlocutory decision means a decision of the Commission about a procedural matter such as an order to produce documents or an order for a witness to attend a  hearing

Member means a Member of the Commission, including the President, a Vice President, a Deputy President or a Commissioner

party means an applicant or respondent involved in a matter before the Commission

peak council means a national or state council or federation that is effectively representative of a significant number of organisations (within the ordinary meaning of the term) representing employers or employees in a range of industries

preliminary conference or hearing means a conference or hearing to deal with a procedural issue

represented means an applicant or a respondent who is represented by a lawyer, paid agent, employee or officer of the party, peak council, employee organisation or employer organisation

respondent means an employer identified by the applicant as their employer at the time the applicant was dismissed

requirements means a notice issued by the Commission which sets out a timetable for the parties to provide to the Commission and the other party a statement of facts, a statement of evidence and relevant documentary material

Rules means the Fair Work Commission Rules 2013

self represented means an applicant or respondent who is not represented by a lawyer, paid agent, employee or officer of the party, peak council, employee organisation or employer organisation

sworn evidence means evidence provided under oath (which is a religious commitment to tell the truth) or affirmation (which is a non-religious commitment).

7. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

Legislation

8. The following extracts from the Act are relevant:

Part 3-2 - Unfair Dismissal

Division 1 - Introduction

s.381 Object of this Part

(1)     The object of this Part is:

(a)     to establish a framework for dealing with unfair dismissal that balances:

(i)      the needs of business (including small business); and

(ii)     the needs of employees; and

(b)     to establish procedures for dealing with unfair dismissal that:

(i)      are quick, flexible and informal; and

(ii)     address the needs of employers and employees; and

(c)     to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)     The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.

Note: The expression ‘fair go all round’ was used by Shelton J in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

Division 5 - Procedural Matters

s.397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which are in dispute.

s.398 Conferences

(1)     This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(2)     Despite subsection 592(3), the FWC must conduct the conference in private.

(3)     The FWC must take into account any difference in the circumstances of the parties to the matter in:

(a)     considering the application; and

(b)     informing itself in relation to the application.

(4)     The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(a)     considers the application; and

(b)     informs itself in relation to the application.

s.399 Hearings

(1)     The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(a)     the views of the parties to the matter; and

(b)     whether a hearing would be the most effective and efficient way to resolve the matter.

(2)     If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3)     The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

Background

9. This practice note explains the:

• case management practice in scheduling unfair dismissal applications for conference and hearings
• differences in the preparation required for conferences and hearings, and
• differences in the conduct of conferences and hearings.

This practice note should be read together with the Fair hearings practice note [2/2013].

10. When unfair dismissal applications are received by the Commission, they are generally scheduled by the Commission’s Client Services Team for conciliation. Unfair dismissal applications which do not settle at or do not proceed to conciliation are then scheduled by the Unfair Dismissal Case Management Team (the Case Management Team) for determination by a Member. Until they are allocated to an individual Member, these unfair dismissal applications are managed by the Case Management Team under the direction of the Termination of Employment Panel Head (the Panel Head).
     
11. Upon allocation to a Member for determination, the parties may be invited by the Member to participate in further settlement discussions by way of a conciliation conference. This usually occurs prior to the commencement of the conference or hearing. Conciliation is not compulsory at this stage and either party may decline to participate.
     
12. Generally, throughout the course of proceedings any correspondence or document sent to the Commission must also be sent to the other party or their representative. When this is not done, the Commission may forward a copy to the other party (or their representative). Parties who are concerned about correspondence or documents being forwarded by the Commission to the other party or their representative (for example, if it contains personal medical details or other confidential information) should contact the Commission to discuss their options before sending it to the Commission.
     
13. The Commission commenced a permanent pro bono scheme in Melbourne on 1 July 2014. It provides free legal advice to unrepresented parties in unfair dismissal jurisdiction hearings. Parties can obtain further information about the Melbourne scheme by contacting the Unfair Dismissal Case Management Team (UDCMT) by email: udtrosters@fwc.gov.au. Pro bono programs will be rolled out in other states in 2018; enquiries can be referred to the UDCMT.
     
14. At a conference or at a hearing a Member may make a determination that the dismissal was unfair, and make an order for a remedy if they decide it is appropriate, or they may make an order that the application be dismissed. An application may be dismissed in accordance with the Commission’s general dismissal powers under s.587, or on application by the respondent under s.399A of the Act. When applying for an unfair dismissal remedy the applicant may ask for reinstatement, a monetary amount or some other remedy.
     
15. As outlined in paragraph 8, above, the objects of the Part 3-2 of the Act, which deals with unfair dismissal, include that the procedures for dealing with unfair dismissals should be quick, flexible and informal, and should address the needs of employers and employees.

Jurisdictional & interlocutory decisions

16. The Panel Head, or their delegate, will determine any interlocutory requests which can include adjournment of hearing dates, extensions of time for filing documents, notices to produce documents or notices requiring a person to attend.

Jurisdictional objections

17. In circumstances where the respondent makes a jurisdictional objection to the application, the issue of jurisdiction may be heard before the main unfair dismissal application. The process is the same as the process for determining the merits of the application which is set out below.

Extensions of time

18. If an extension of time to file material is required, a written request must be made to the Commission prior to the date on which the material is due to be filed. The request must set out reasons for the request and provide supporting material. For example if a party has been sick, a medical certificate or statutory declaration must be provided. If the other party objects to the request the extension of time matter may be determined on the papers.

Adjournments

19. An adjournment of an unfair dismissal application will only occur if there are substantial grounds for the adjournment application.
     
20. A request for an adjournment must be made in writing, preferably to udtrosters@fwc.gov.au.
     
21. An adjournment request may be granted where the request is substantiated by documentary evidence. Examples where a request may be granted include:
     

• where illness of the applicant or a significant person in the respondent’s business or a witness would prevent them from attending a proceeding. A medical certificate must be provided by the requesting party to substantiate the request
• unavailability of a representative that started acting for a party before the application was listed for hearing
• death or serious injury of a family member of an applicant, a significant person in the respondent’s business or a witness, or
• where the applicant, a significant person in the respondent’s business, a witness or a representative will be interstate or overseas and the travel was booked before the application was listed for hearing. The Commission may ask for proof that the booking was made prior to the matter being listed for hearing.

22. The other party will be asked to comment on the adjournment request prior to a decision being made by the Commission.

Orders for the production of documents

23. A party may apply to the Panel Head for an order requiring another party to the matter (or a third party) to produce documents to the Commission. The documents sought must be relevant to matters in dispute between the parties. The requesting party must set out:

• the specific documents or class of documents being sought
• why the documents are sought
• how the provision of the documents will assist the Commission in determining the matter.

24. The Panel Head will then consider the merits of the application and determine whether an order should be granted.
     
25. A party served with an order to produce documents may object to the order by applying to have the order to produce set aside. A party may object to producing documents because they contain information which is confidential, commercially sensitive or legally privileged. The objecting party must file with the Commission and serve on the other party an application to set aside the order setting out the reasons for the application. The application must be made prior to the compliance date of the order. The Panel Head may list the matter for a preliminary conference or hearing or determine the application on the papers with the consent of the parties.
     
26. Documents produced can only be used for the purposes of conducting the relevant matter in the Commission. They cannot be used for any other purpose except with the written authorisation of the Commission.
     
27. Documents produced under an order of the Commission remain at the offices of the Commission. Any party wishing to inspect the documents should contact the Unfair Dismissal Case Management Team.
     
28. If there is any objection to a party accessing documents produced under an order, the matter will be referred to the Panel Head who will determine whether access should be granted. The Panel Head may conduct a preliminary conference or hearing.
     
29. A person ordered to produce documents to the Commission must comply with the order.

Orders for attendance

30. An application for an order to attend allows parties in dispute to request that a witness(es) attend a conference or hearing and give evidence under oath or affirmation to the Commission. The requesting party must set out:

• the person(s) whose attendance is required
• why their attendance is being sought
• how the appearance of the person(s) will assist the Commission in reaching a decision.

31. The Panel Head will then consider the merits of the application and determine whether an order should be granted.
     
32. A person served with an order to attend may object to the order by applying to have the order to attend set aside. The person must file with the Commission and serve on the other party an application to set aside the order setting out the reasons for the application. The application must be made prior to the compliance date of the order. The Panel Head may list the matter for a procedural hearing or with the consent of the parties determine the application on the papers.
     
33. A person ordered to attend the Commission must comply with the order.

Process options for determining the merits of an unfair dismissal application

34. In circumstances where an unfair dismissal application does not resolve (either by settlement or discontinuance) at conciliation, or conciliation does not proceed the Act provides that the Commission must determine the matter in one of the following ways:

• a private conference under s.398 of the Act, or
• a public hearing under s.399 of the Act.

35. The wording of s.398 and s.399 indicate a legislative intention that unfair dismissal matters be determined by the Commission at a conference where possible. This is apparent by the introductory words of s.399(1), which provide that the Commission ‘must not hold a hearing ... unless it considers it appropriate to do so’. This legislative direction is not present in s.398, which deals with conferences. For the purposes of this practice note, conferences are referred to as conferences to ensure the parties are aware that their matter will be finally determined by the Commission following the conduct of the conference.
     
36. Unfair dismissal applications are listed to proceed by hearing and/or conference except in circumstances where both parties are self represented. The Member allocated to the unfair dismissal application will then decide, taking into account the wishes of the parties, whether determination of the application should proceed as a conference or hearing in accordance with s.398 and s.399 of the Act.
     
37. In accordance with s.399(3), the Member dealing with an application may switch between a conference and a hearing during the course of proceedings if this will assist resolution of the issues.

Listing solely as a conference

38. In matters where both the applicant and respondent are self represented, unfair dismissal applications may be scheduled for final determination by a conference.
     
39. An applicant or respondent may object to the application being dealt with by conference by lodging an objection using Form F48, available from the Commission’s website. Parties who object to the matter proceeding to conference must justify their reasons for seeking to have the matter listed for hearing. The objection shall be considered and determined by the Commission. After hearing the views of the applicant and respondent, the Commission may decide to either:

• maintain the scheduling of the application as a conference proceeding, or
• refer the application for scheduling as a hearing.

Conferences

Preparing for a conference

40. After an application is scheduled for conference, the Commission will issue requirements to the parties, setting out a timetable for the provision of relevant information to the Commission and to each other. Either party may apply to the Commission to vary the requirements by completing and filing Form F48.
     
41. The objective of these requirements is to make the other party aware of issues and/or facts that will be raised and evidence that will be relied upon in the conference. The requirements are not as formal as the written submissions that must be filed in a hearing and are therefore less onerous for parties who do not have the assistance of a legal representative or paid agent.
     
42. The applicant and respondent will be required to provide to the Commission and the other party:

• an outline of argument setting out facts which support their case and which are relevant to the determination of the matter by the Commission. The applicant’s statement of facts should include the remedy they are seeking, which may be reinstatement, compensation or some other outcome. If the applicant is seeking compensation, they should include a monetary amount
• a statement of evidence for each person who will attend the conference to give evidence (including the applicant or the respondent), setting out:
  • the name and title/position of the witness
  • in dot points, the facts, events or conversations it is expected the person will give in evidence at the conference, and
  • copies of documents the applicant or respondent will rely on at the conference. 

43. The Commission’s website has a range of checklists and guides to assist the applicant and respondent in meeting these requirements. Case Management Team members are able to assist the parties with questions about meeting the requirements, but cannot provide legal advice.
     
44. Where both parties are self represented the Commission will issue requirements compelling the parties to complete the Self Represented Conference Documents. These documents are available on the About hearings and conferences page on the Commission’s website.

Conduct of conferences

45. A conference is conducted in private, which means that persons other than the parties, their representatives, if any, and their witnesses are not able to attend the conference. However the decision of the Member, including the names of the parties, is published on the Commission’s website (unless the Commission decides otherwise.)
     
46. Conferences are conducted in a manner which is less formal and more flexible than hearings. Where possible, Members will try to conduct the proceedings taking into account any differences in the circumstances of the applicant and respondent.
     
47. A Member may take an active role in a conference to ensure all matters relevant to the issues in dispute are dealt with. For more information about the role of Members, please see the Fair hearings practice note [2/2013].
     
48. Evidence is given by the applicant, respondent and other witnesses by sworn oral evidence. Witnesses may be cross-examined on their evidence by the opposing party and/or be questioned by the Member.
     
49. The conference proceedings are generally recorded and the recordings may be transcribed. If a Member orders the transcript it will be provided to the parties at no cost. Otherwise parties may request an audio file of the recording be provided to them, or may purchase a copy of the transcript.
     
50. At the conclusion of a conference the Member will make a final determination. This may be given orally at the conference or in writing at a later date. A Member’s decision finally determines the application, subject to any appeal.

Hearings

Preparation for a hearing

51. Where an application is scheduled for a hearing, the Commission will issue directions to the applicant and respondent setting out a timetable for the provision of an outline of submissions, witness statements and documentary material. An information fact sheet will be sent to the applicant and respondent which should be read together with the Commission’s unfair dismissal guides. Either party may apply to the Commission to vary the directions by completing and filing Form F48.
     
52. The objective of these directions is to make the other party aware of issues and/or facts that will be raised and evidence that will be relied upon in the hearing.
     
53. The applicant and respondent may be directed to file in the Commission and serve on each other:

• an outline of submission which sets out in paragraph form the basis on which the applicant or the respondent submits that the Commission should find in their favour. The outline of submission should include the Commission case number, the names of the parties and should address the relevant sections of the Act that deal with unfair dismissal applications. The applicant’s outline of submissions should include the remedy they are seeking which may be reinstatement, compensation or some other outcome. If the applicant is seeking compensation, they should include a monetary amount.
• a witness statement for each person the applicant or respondent  intends to call to give evidence at the hearing (including the applicant and respondent). The witness statement must:
  • start with the name, address and occupation of the person making the statement
  • set out in numbered paragraphs all matters relevant to the facts and allegations of the case that the person will give evidence on at the hearing, and
  • cover in sufficient detail all matters so that the witness statement will stand as the person’s main evidence.

Conduct of hearings

54. A hearing is conducted in public unless the Commission decides otherwise.
     
55. Witness statements, filed in accordance with the directions, stand as the evidence of a witness (unless a Member decides otherwise), subject to objection and cross-examination.
     
56. Hearings are generally recorded and the recordings are transcribed. If a Member orders the transcript it will be provided to the parties at no cost. Otherwise parties may request an audio file of the recording to be provided to them, or may purchase a copy of the transcript.
     
57. A decision by the Member conducting a hearing is given either orally at the conclusion of the hearing, or in writing at a later date. A Member’s decision finally determines the application, subject to any appeal.

Case management issues

58. The Commission seeks to provide an efficient process for determining the merits of unfair dismissal claims. In states where the volume of applications is high (Victoria, New South Wales and Queensland), matters are assigned to a roster. In other states and territories where the volume of applications is lower, matters are allocated on a modified docket system, which means they are allocated to a specific Member.
    
     
59. Because a number of matters settle prior to hearing the Commission overlists (lists more matters than there are Members available to hear those matters). Occasionally this means that a matter cannot be heard at the listed time because there is no available Member. In those cases the parties will be given a guaranteed listing date in the next roster.
    
     
60. Where necessary, cases requiring more than three days of hearing time will be separately case managed by the Panel Head or their delegate.

Representation at the conference or hearing

61. Many parties choose to represent themselves in Commission proceedings. It is not necessary for a party before the Commission to be represented by a lawyer or paid agent. However, a party may seek permission from the Member hearing the matter to be represented by a lawyer or paid agent (see s.596 of the Act and see generally Warrell v Fair Work Australia [2013] FCA 291)
     
62. You do not need to seek permission to be legally represented if the lawyer or paid agent representing you is an employee or officer of:

• your business;
• an organisation such as a union or an employer association that is registered under the Fair Work (Registered Organisations) Act 2009;
• an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or
• a peak council.

[see s.596(4) of the Act].

63. Subject to a direction by the Commission to the contrary, a person is permitted to be represented in a matter by a lawyer or paid agent in order to:

• prepare a written application or submission;
• lodge a written application, submission or other document; or
• correspond with the Commission in relation to the matter.

[see Rule 12 of the Rules].

64. You must seek permission to be represented by a lawyer or paid agent in a hearing or conference before the Commission (except in circumstances referred to in paragraph 60). The Member can only give permission for representation in a matter before the Commission if:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
• the party is unable to represent himself or herself effectively and it would be unfair not to allow them to be represented; or
• it would be unfair not to allow the person to be represented taking into account fairness between the parties.

[see s.596(2) of the Act].

65. Examples of circumstances where permission for representation may be granted include:

• where a person is from a non-English speaking background;
• where a person has difficulty reading or writing; or
• where a small business is a party and they do not have specialist human resource staff, and the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations.

[see Notes (a) and (b) to s.596(2) of the Act].

66. Any party that wishes to have an application to appear by a lawyer/paid agent determined prior to the conference or hearing must file in the Commission and serve on the other party a document which identifies;
    
    1. the lawyer or paid agent the subject of the application; and
    2. the reasons why permission is sought, having regard to the matters set out in s.596(2) of the Act.
        
67. This document must be filed 14 calendar days before the date of the conference or hearing.
     
68. Any party served with a document pursuant to the above direction must file in the Commission and serve on the other party a  document which indicates;
    
    1. whether the other party’s application for permission to be represented at the conference or hearing by a lawyer or paid agent is opposed; and
    2.  if the application is opposed, the grounds for that opposition.
        
69. This document must be filed 7 calendar days before the date of the conference or hearing.
     
70. The Member who hears the application for permission to appear may, if necessary, list that application for preliminary conference or hearing. Where possible, such an application will be determined on the papers, and the parties advised of the outcome, prior to the  conference or hearing.
     
71. Where an application for permission to appear is made at the commencement of the conference or hearing, parties seeking to be represented in a conference or hearing should not assume that permission will be granted. Parties need to be prepared to proceed with a conference or hearing in the event that their representative is not permitted to appear. In the event that permission to be represented by a lawyer or paid agent is not granted the party may seek an adjournment, but whether an adjournment is granted will be a matter for the Member concerned and should not be assumed.
     
72. In circumstances where permission to appear is granted in a jurisdictional hearing, it should not be assumed that permission will also be granted to appear in the substantive matter.

Further information

Please see the Fair hearings practice note [2/2013] and the Unfair Dismissals Benchbook for further guidance about unfair dismissal matters at the Commission, including information about:

• access to hearings including translators, assistance for hearing impaired and accommodating parties with disabilities, ill health or carer’s responsibilities and those in remote locations, and
• costs.