What do I need to know before appearing at the Fair Work Commission for unfair dismissal?

Know what to expect as an ex-employee or employer when you appear at the Fair Work Commission

This article gives a practical overview of the processes involved in applying to the Fair Work Commission for unfair or unlawful dismissal. It is of equal value to an ex-employee thinking about making an application, or an employer who needs to respond to an application.

Introduction

The Fair Work Commission (the Commission) has the jurisdiction to determine applications for unfair dismissal and unlawful termination remedies.

Unfair dismissal is when a dismissal is harsh, unjust or unreasonable, and the dismissal is not a case of genuine redundancy.
Unlawful termination is when an employee is terminated for reasons that would constitute discrimination, such as on grounds of the employee’s race, colour, sexual preference, age, physical or mental disability, marital status, family or carer responsibility, pregnancy, religion, political opinion, national extraction, social origin, or sex. It also constitutes unlawful termination if an employee is terminated due to their temporary absence from work because of illness or injury.

Commencing an application

Applications for remedies for unfair dismissal or unlawful termination are commenced in the Commission by the affected employee. An unfair dismissal application is commenced using a Form F2 (Unfair Dismissal Application), and an unlawful termination application is commenced using a Form F9 (Application for the Commission to Deal with an Unlawful Termination Dispute). The Commission provides guidelines on how to complete each form.

An unfair dismissal or an unlawful termination application must be lodged within 21 days of the termination taking effect. The current application fee for either type of application is $70.60 (current at September 2017), which is paid by the applicant (you can apply for relief from the fee in certain circumstances using a ‘Waiver of application fee’ Form).

Employer’s Response

Once the application is received and processed by the Commission, the Commission will provide a copy of the application to the respondent employer. The employer is required to file its response within 7 days of receiving the application using a Form F3 (Employer’s Response to Unfair Dismissal Application) or a Form F9A (Employer’s Response to Application for the Commission to Deal with an Unlawful Termination Dispute). Once filed, the employer must serve its response on the applicant (or their representative, if they have one) – the employer does this by sending a copy to the applicant (or representative) using the postal address provided on the application.

The employer’s response to an unfair dismissal application comprises the employer’s response to the employee’s arguments as to why the dismissal was unfair, together with any jurisdictional objections. Jurisdictional objections are reasons why the employee is not entitled to make an unfair dismissal application – for example, because they have not served the requisite length of service with the employer, or they earn above the high income threshold.

Conciliation

Once the application has been processed by the Commission, it will set down a time for the parties to participate in conciliation. The Notice of Listing from the Commission for conciliation is delivered to the respondent employer together with the copy of the applicant’s application documents.

Conciliation is conducted by a conciliator from the Commission, and is usually held via telephone link-up between the various parties. Conciliation is confidential and ‘without prejudice’, which means that issues that are raised or offers that are made cannot be brought up later at the hearing. This is to ensure that it is an open forum for discussion and negotiation.

The conciliator will first explain the format of conciliation, and remind the parties that the matter will proceed to hearing (if pursued by the applicant) if it cannot be resolved. The conciliator will then give each party or their representative the opportunity to present their case from their viewpoint. It is common for the applicant or their representative to speak first, but this does not have to be the case.

After each side has spoken, the conciliator will then have a private discussion with each side to analyse their position and ascertain whether there is any scope to resolve the matter by agreement and the possible terms of that agreement. The conciliator will often shuttle between the two sides to put forward any offers and counter-offers that the sides may wish to present.

If a settlement is reached, it will usually be agreed ‘in principle’ and the parties will make arrangements to formalise their agreement in writing after conciliation. Conciliation will then be concluded on the basis that the matter has been resolved and the applicant will discontinue their application following finalisation of the settlement.

If the parties to fail to engage in any settlement negotiations or a settlement cannot be reached, the conciliator will end conciliation and the applicant will have to decide whether they wish to take their application further. If the applicant wishes to proceed, the conciliator will ask the parties whether they would prefer that the matter be heard for final determination in a hearing or an arbitration conference. A hearing is a formal, courtroom-style proceeding, whereas a conference is more informal and often all parties will sit around one table or the Commission Member deciding the matter will sit at the bar table with the parties. The conciliator will also ask the parties how long they think the hearing or conference will take, which will usually depend on how many witnesses each side plans to call.

Preparing for hearing or arbitration conference

After conciliation, the parties will receive a Notice of Listing from the Commission for the hearing or conference. The Notice will specify how long the date, time, location and duration of the listing. If a party is unable to attend on the listing date due to a prior commitment, they will need to contact the Commission to discuss their unavailability and whether the listing can be changed.

At the same time as receiving the Notice of Listing for the hearing/conference, each party will also receive some directions from the Commission. The directions set out what each party must do to prepare for the hearing/conference and the date by which they must do it.
The process for preparing for either a hearing or an arbitration conference is the same. Usually the Commission Member will decide whether the matter is heard in hearing or conference on the day, depending on factors such as matters in dispute, whether the parties are represented, and how many witnesses there are.

There are two types of documents each party (or their representative) must prepare for the hearing/conference:

  • A Witness Statement for each witness; and
  • An Outline of Submissions.

The Witness Statements should be in the form of Statutory Declaration for the State or, preferably, the form provided by the Commission. Each witness will need to help prepare their own Witness Statement, review it for completeness and accuracy, and then sign it in front of an authorised witness (for example, a lawyer or Justice of the Peace). The Witness Statements should set out the evidence that the witness wants to provide in numbered paragraphs, to make it easy to refer to at the hearing/conference. Any documents that the parties intend to submit as evidence should (where possible) be annexed to the relevant Witness Statement.

The Outline of Submissions is a summary of the evidence that supports a party’s case, and the relevant law as it applies to the party’s case. How long or complex the Outline of Submissions will be depends on the particular case the party is arguing. The Outline of Submissions should have as a heading the case details (i.e. the parties’ names and matter number), and should then use numbered paragraphs to set out the party’s submissions. It may also be helpful to use sub-headings to separate issues or arguments. Each party should aim to make their Outline of Submissions as clear and easy to read as possible.

The signed Witness Statements and Outline of Submissions must be filed and served by the due date specified in the directions. ‘Filing’ is when a party provides a copy to the Commission (either by email, fax or post), and ‘serving’ is when a party provides a copy to the other side (again, either using the email, fax or postal address provided by the other side on their application or response document).

Process at the hearing or arbitration conference

The Commission advises parties and their representatives to arrive early on the day to give themselves time to locate the courtroom or conference room and so that the hearing/conference can start on time.

The parties should come prepared by bringing plenty of copies of the documents they or the other side intend to rely on. This includes copies of documents filed in the proceedings, copies of any relevant Award, and any other evidentiary documents that have not been annexed to a Witness Statement. Parties will not have access to computers or printers once the hearing/conference has commenced, so it is vital to plan ahead. We recommend each party bring three copies: one for themselves, one for the other side, and one of the Commission Member.

When the parties arrive in the courtroom, the Associate will take names to make sure everyone is there (e.g. the parties, the parties’ representatives (if any), the witnesses). The Associate is the person who assists the Commission Member to run the hearing/conference. They carry out a lot of the administrative and procedural duties in the courtroom, such as handing up any evidence that is tendered and helping to swear in witnesses.

Once the Associate has established that everyone is present, the Commission Member will enter the courtroom. All people in the courtroom must stand when the Commission Member enters, like in an ordinary courtroom.

The Commission Member will ask the parties if they are represented and, if so, each of the representatives will be required to seek leave (permission) from the Commission Member to appear on behalf of their party. The Commission Member will usually grant leave for representation, especially if both parties are represented. However, this is not an automatic right as discretion lies with the Commission Member.

The Commission Member will then ask the parties their preference in terms of proceeding by way of hearing or by arbitration conference. Again, the discretion lies with the Commission Member, so they will ultimately decide the format for proceeding. For example, if there are lots of witnesses, if there are a number of jurisdictional objections or if there are significant facts in dispute, the Commission Member may decide that it is more appropriate to proceed by way of a formal hearing.

If the matter is going to proceed an as arbitration conference, the Commission Member will usually leave the bench (the raised seat at the front of the room) and come to sit opposite the parties and their representatives at the bar table (where the parties sit). This makes the process seem more informal and more like a discussion between the people involved. If the matter proceeds by way of a formal hearing, the ordinary courtroom set up applies and the Commission Member will remain seated at the bench. Parties and their representatives will then be expected to stand when speaking to the Commission Member, and witnesses will be required to give their evidence from the witness box.

In a formal hearing, the matter usually proceeds in the following order of events:

  • The applicant (or their representative) makes their opening submissions, which usually draws heavily on the Outline of Submissions they have already submitted to the Court;
  • The applicant (or their representative) calls their first witness. The usual protocol is to call witnesses in order of importance – for example, the affected employee first, then any other witnesses in order of importance of their evidence;
  • The respondent (or their representative) cross-examines the applicant’s first witness;
  • The applicant (or their representative) re-examines their first witness, to clarify any evidence that may have come to light in the cross-examination;
  • The applicant (or their representative) calls their second witness, who will then also be cross-examined and re-examined, and so on until the applicant’s witnesses are finished;
  • The same process is then repeated for the respondent;
  • The applicant (or their representative) makes their closing submissions. These usually reiterate the applicant’s main arguments and summarise any usually factual points that have come out of the witnesses’ evidence;
  • The respondent (or their representative) makes their closing submissions.

The Commission Member will then bring the hearing to a close and leave the room. Once again, all people in the courtroom are required to stand while the Commission Member exits.

In an arbitration conference, the same events will occur but the order of events is more flexible, and the Commission Member is likely to guide the conference by asking questions and probing certain issues.

The final outcome

The Commission Member will not deliver their decision on the day of the hearing or arbitration conference. The decision will be provided in writing (usually by email and/or by post) afterwards, as the Commission Member needs time to consider the evidence and submissions.
The Commission sets a standard of a maximum 12 week wait for a decision, so if the decision has not been received within that timeframe you can contact the Commission to find out the progress. It is best to either contact the Commission Member’s Associate for an indicative timeframe or use the email provided by the Commission: decisiontracking@fwc.gov.au.


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Andrew

Lawyer to entrepreneurs and investors