Approximately only 300 of the 15,000 unfair dismissal applications each year go to a hearing at the Fair Work Commission, so what are the reasons for proceeding?

Research has investigated what happens during the conciliation period before a hearing and why so many cases are resolved before being heard by the Fair Work Commission.

An unfair dismissal claim goes through the following stages:

  1. The applicant is terminated from employment and considers if they should contest their dismissal.
  2. The decision is made to pursue an unfair dismissal remedy in the Fair Work Commission.
  3. The employer is notified by the Fair Work Commission that an application has been submitted and must respond.
  4. Registry staff manage the process, providing information for the conference.
  5. The matter is listed for a voluntary telephone conciliation by a Fair Work Commission Staff Conciliator.
  6. If the matter is not resolved the case is referred to a Fair Work Commission Member, parties are encouraged to undergo further conciliation.
  7. If further conciliation is unsuccessful the matter is heard and resolved by arbitration.

Research has found that in many cases an arbitrated unfair dismissal is pursued for reasons other than money.

The voluntary telephone conciliation mediated by the Fair Work Commission is the first step that attempts resolution, and over half of all applications are resolved at this stage. So why is this?

A primary reason is that the parties begin bearing the monetary cost of the process by having legal counsel or representation to prepare for and present at the conciliation. This puts into perspective how potentially expensive the process can be for both parties if the application follows all seven stages.

At this stage of the process, the facts of the claim are also spelled out and it becomes more apparent if the application has merit. Matters such as redundancy and serious misconduct are likely to be resolved at this stage as it can be assessed if there are valid grounds for the application.

Other factors that contribute to an application being taken further, is if there are complex issues at play e.g. multiple concerns in one application. If the employee desires reinstatement, applications are also more likely to progress further. This is because often when someone has been dismissed few employers are willing to take the employee back, but some employees are very determined to keep their old job.

Another factor is the desire for the employee to be heard or for the employer to make a point. In these cases, parties are willing to bear any cost to see the case through to arbitration. At this stage, the pursuit is a matter of principle and sense of justice.

These reasons highlight the importance of strong HR skills when dealing with termination of employment and subsequent applications for unfair dismissal. This research demonstrates that the way an employee’s dismissal, application and conciliation are handled by the employer can have a significant impact on the outcome of a claim.

It is recommended that employers use two-sided, reasonable communication, recognise the employee’s views and experiences and genuinely work to reach conciliation, to prevent unfair dismissal applications and resolve them earlier if they do occur.

Navigating unfair dismissal can be difficult when working within a small team, especially if the ex-employee is disgruntled and wants their old role back. For this reason, having an external consultant can be very helpful to ensure the process runs smoothly and both parties are satisfied with the outcome.

ProcessWorx HR Advisors have experience dealing with termination and unfair dismissal claims. If you have queries about anything above and want advice personalised to your business, contact us on (08) 9316 9896, or email enquiries@processworx.com.au.

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Written by Danielle McNamee

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