the first three months of this year, the Fair Work Commission received a total
of 3583 unfair dismissal applications. Less than 1% of these cases resulted in
a finding of ‘unfairness’ by the Commission.
worth noting that 3411 of these applications were settled during mediation
and/or conciliation, with the remaining 172 (i.e. 5%) being formally brought
before the Commission.
details of mediation and conciliation between the parties is confidential and
so we have no data on the proportion of these applications that were likely
valid – and those that were not”, said ACAPMA CEO Mark McKenzie
ACAPMA’s experience, the vast majority of the matters subject to mediation and
conciliation result in either the employee withdrawing the application after
mediation, or the employer deciding to make a modest ‘go away’ payment – rather
than go through the stress and expense of fighting the claim in the
Commission”, said Mark.
the Union movement might argue the contrary position, neither employer
organisations nor unions can prove their point given that the settlements
reached in these matters are rightly confidential between the parties.
do, however, know the outcomes from the cases that are formally brought before
the Commission”, said Mark
the first three months of 2019, a total of 172 cases were brought before the
Commission. Of these, just 32 cases (or 19%) were resolved in favour of the
employee. The 2019 experience is similar to the results in the two prior years
of 2018 (15%) and 2017 (17%).
79 (or 46%) of the claims considered were dismissed by the Commission because
they were ‘without merit’”, said Mark
further 32 cases (or 19%) were dismissed by the Commission owing to the cases
being deemed legally invalid due to the claims being lodged ‘out of time’, the
case being a genuine redundancy, or the case being ineligible on other
other words, 111 (or 65%) of the cases brought before the Commission in the
first three months of this year should not have been presented to the Commission
in the first place”, said Mark
the significant financial and time penalties associated with preparing a
defence against an adverse dismissal claim, the high number of cases that were
dismissed by the Commission suggests that the current operation of the Code is
imposing unnecessary costs on small business owners.
is to say nothing of the stress involved in defending these actions and the
fact that they often result in the business owner losing sight of their small business
and suffering other financial consequences (e.g. lower revenues due to less
time spent in the business)”, added Mark.
the case for a comprehensive review of the current Code is further strengthened
by examining the nature of some of the cases that did not reach the Commission – but required the business to spend
significant time and money formally responding to a Conciliation process for a
first case involved an employee who was
recorded on CCTV consuming alcohol. The employee was called in for a
performance management meeting with notice, attended a performance management
meeting with a support person as a witness and had the breach formally put to
him. He responded by denying that he had consumed alcohol at work and stated that
the CCTV footage must have been altered.
The employee was given an
opportunity to formally respond (in writing) prior to a decision being made by
the business. He provided a written response that denied the consumption of
alcohol. He was subsequently terminated in writing for a major safety breach of
consuming alcohol while at work (i.e. he was working at a major hazardous goods
facility) and was provided with payment in lieu of notice.
This employee brought an unfair
dismissal claim forward but lodged it ‘out of time’. He claimed that he was not
provided the reasons for his dismissal and that he was not given an opportunity
to respond to the business – despite clear and documented evidence to the
The business was required by the
Fair Work Commission to lodge a formal response (approximately 8 hours work)
and participate in a conciliation conference (approximately 2 hours). The case
was ultimately resolved without any compensation being paid to the employee.
A simple review of the facts
reveals that the application was lodged ‘out of time’ and that the reasons for
termination were valid – yet the business owner was required to invest
significant time and money responding to what was essentially a spurious
So why was the application
accepted by the Fair Work Commission in the first place?
staff at the Fair Work Commission are always going to accept applications that
are lodged ‘out of time’ then it begs the question of why the provision is
there in the first place”, said Mark
The second example involved an employee who was repeatedly late to work, repeatedly
out of uniform and repeatedly failed to complete assigned tasks. After
following a clear and well documented performance management process – with the
employee failing to address the communicated issues – the employee was
dismissed, issued with a formal termination letter and paid in lieu of notice.
The employee had only been
employed by the business for 8 weeks which is clear grounds for an application
of unfair dismissal being deemed ‘invalid’.
Nonetheless, the application was
accepted by the Fair Work Commission and the business was forced to spend time
and money defending a case that involved an employee being terminated in the
probation period for valid reason – and despite them having followed a
procedurally fair process.
The two cases cited above provide
clear examples of where Fair Work Commission staff have not followed key provisions
of the Unfair Dismissal Code. As a result, the small business owners incurred significant
and unnecessary costs defending spurious applications.
“Any objective examination of both
the unfair dismissal statistics published by the Fair Work Commission and recent
case history, suggest that there are clear problems with the current operation
of the Unfair Dismissal Code”, said Mark.
Specifically, employers are being
required to fight more than 65% of claims that are ‘without merit’ or ‘invalid’
in the Commission and/or spend time and money in mediation and conciliation processes
for applications that should never have been accepted by the Fair Work
Commission in the first place.
“It is time to review the
operation of the Unfair Dismissal Code – and the degree to which the
administration of this Code is consistent with the original objectives that
were set out when it was first established”, concluded Mark