The practice note applies to unfair dismissal applications lodged with the Fair Work Commission.
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.
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.
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. Conciliation is conducted in private, is not recorded and no decision published.
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 before a Member, where the Member makes a final determination about the unfair dismissal application. Conferences are conducted in private, are recorded and result in a decision being published
Determination on the papers means a decision made on the basis of written material filed in accordance with a direction or requirement of a Member
determinative conference see conference
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. A hearing is recorded and results in a decision.
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
mention is a hearing held to deal with procedural or interim matter
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. A requirement has the same force as a direction.
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).
The following extracts from the Act are relevant:
Part 3-2 - Unfair Dismissal
Division 1 - Introduction
s.381 Object of this Part
the needs of business (including small business); and
the needs of employees; and
are quick, flexible and informal; and
address the needs of employers and employees; and
to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
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  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.
Despite subsection 592(3), the FWC must conduct the conference in private.
considering the application; and
informing itself in relation to the application.
considers the application; and
informs itself in relation to the application.
the views of the parties to the matter; and
whether a hearing would be the most effective and efficient way to resolve the matter.
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.
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.
This practice note should be read together with the Fair hearings practice note, Lawyers and paid agents practice note, Orders to attend and orders to produce practice note,
When applying for an unfair dismissal remedy the applicant may ask for reinstatement, a monetary amount or some other remedy.
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 allocated to an individual Member. Prior to allocation to a Member, unfair dismissal applications are managed by the Case Management Team under the direction of the Practice Leader Termination of Employment (the Practice Leader).
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 before a Member. This usually occurs prior to the commencement of a conference or hearing. Conciliation is not compulsory at this stage and either party may decline to participate.
Generally, throughout the course of proceedings any correspondence or documents 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.
The Commission coordinates the Workplace Advice Service (the Service) which provides free legal advice to unrepresented parties (applicants and respondents) on matters including unfair dismissal. The Commission partners with private legal firms, legal aid and community legal centres who provide legal advice. The Service is currently available in Queensland, New South Wales, Victoria, South Australia and Western Australia. Parties can find out more about the Workplace Advice Service by visiting the Commission website at https://www.fwc.gov.au/resources/where-get-legal-help/workplace-advice-service. There is an online eligibility check and request form on this site.
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 also 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.
As outlined in paragraph 7, 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.
The Member (or Practice Lead prior to allocation to a Member) 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.
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. In certain cases the jurisdictional objection will be heard in conjunction with the merits of the case. The process is the same as the process for determining the merits of the application which is set out below.
If an extension of time to file material in accordance with directions or requirements issued by the Commission 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 Member may decide the extension of time matter and it may be determined on the papers.
An adjournment of an unfair dismissal application will only occur if there are substantial grounds for the adjournment application.
A request for an adjournment must be made in writing, preferably to the chambers of the Member who has been allocated the file. A list of chambers' email addresses can be found on the Lodge an application page of our website.
The other party will be asked to comment on the adjournment request prior to a decision being made by the Commission.
The Member will consider the merits of the application and determine whether an order should be granted.
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, to produce the documents is onerous, becuse they are not relevant or the request is a "fishing" exercise. 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 Member dealing with the file may list the matter for a preliminary conference or hearing or determine the application on the papers with the consent of the parties.
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.
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 chambers of the Member who issued the order.
If there is any objection to a party accessing documents produced under an order, the matter will be referred to the Member who issued the order who will determine whether access should be granted. The Member may conduct a preliminary conference or hearing for this purpose.
A person ordered to produce documents to the Commission must comply with the order.
Further information can be found in the Orders to attend and orders to produce practice note.
The Member allocated the file will then consider the merits of the application and determine whether an order should be granted.
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 party who applied for the order 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 Member may list the matter for a procedural hearing or with the consent of the parties determine the application on the papers.
If the person objects to attending they may make an application to the Commission for the order to be set aside. This matter will be determined by the Member who has been allocated the file.
A person ordered to attend the Commission must comply with the order.
Further information can be found in the Orders to attend and orders to produce practice note.
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.
The Member allocated to the unfair dismissal application will
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.
In matters where both the applicant and respondent are self represented, unfair dismissal applications may be scheduled for final determination by a conference.
After an application is scheduled for conference, the Commission will issue requirements (often referred to as directions) to the parties, setting out a timetable for the provision of relevant information to the Commission and to the other party. Either party may apply to the Commission to vary the requirements by completing and filing Form F48 or otherwise making a request in writing.
The objective of the 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 or other professional assistance (such as a registered organisation).
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.
The Commission has a range of template documents to assist self represented parties prepare the material for the Commission. These documents are available on the About hearings and conferences page on the Commission’s website.
A conference is conducted in private, which means that only the parties, their representatives, if any, and their witnesses are able to attend. However the decision of the Member, including the names of the parties, is published on the Commission’s website (unless the Commission decides otherwise.)
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.
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.
Evidence is given by the applicant, respondent and other witnesses by sworn oral evidence. Witnesses may be cross-examined on their evidence by the other party and/or be questioned by the Member.
The conference proceedings are 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.
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.
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 or by otherwise putting the request in writing.
The objective of the 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.
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.
The Commission’s website has a range of checklists and guides to assist the applicant and respondent in putting their material together to meet the directions of the Commission. The Commission also has a range of template documents which may assist the parties prepare the material for the Commission. These documents are available on the A Commission’s website.
A hearing is conducted in public unless the Commission decides otherwise.
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.
Hearings are 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 to be provided to them, or may purchase a copy of the transcript.
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.
The Commission seeks to provide an efficient process for determining the merits of unfair dismissal claims. In all States and territories files are allocated to a member following conciliation of the application. The Member is then responsible for all management of the file.
In circumstances where conciliation cannot occur a file will be allocated to a Member as soon as possible.
The exception to the standard procedure of conciliation followed by allocation to a Member occurs where an application has been made outside the 21-day time period within which the Act requires an application to be made. In such cases the file will be allocated to a Member for a hearing on whether an extension time within which to make the application should be granted.
In these case the Commission will issue directions for the applicant to file submissions and evidence to support their application for an extension of time. If an extension of time is granted conciliation may occur or the Member may list the application for a conference or hearing. If an extension of time is not granted that will conclude the matter (subject to appeal). The guidance notes in relation to conferences and hearings are applicable to requests for an extension of time within which to make the application.
[see s.596(4) of the Act].
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  FCA 291)
[see Rule 12 of the Rules].
[see s.596(2) of the Act].
[see Notes (a) and (b) to s.596(2) of the Act].
This document must be filed 14 calendar days before the date of the conference or hearing.
This document must be filed 7 calendar days before the date of the conference or hearing.
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.
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.
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 can be found in the practice note on Lawyers & paid agents.
Please see the Fair hearings practice note, Lawyers & paid agents practice note, Orders to attend and orders to produce practice note and the Unfair Dismissals Benchbook for further guidance about unfair dismissal matters at the Commission, including information about: