Fair Work Commission

Introduction

See Fair Work Act 2009 s.397–s.399

Applications for unfair dismissal that do not settle at conciliation, or are not withdrawn, proceed to arbitration, being a determinative conference or hearing before a member of the Fair Work Commission.

Applications that have had an objection made against them proceed to a jurisdictional conference or hearing. The objection may be heard at the same time as the merits of the case or separately.

Determinative conference

A determinative conference is a proceeding which is conducted in private, and results in a decision.

In private means that members of the public are excluded. Persons who are necessary for the Commission to perform its functions are permitted to be present.^[1]

A Commission member takes account of particular circumstances of the parties in conducting the arbitration by conference. In a matter where both parties are self-represented the matter will be listed for determinative conference unless the member decides otherwise.

While determinative conferences are held in private, the Commission will still publish its reasons for decision, including the names of the parties, on the Commission's website (unless the Commission decides otherwise).

Determinative conferences may involve more informal procedures than in a hearing.

Hearing

A hearing is a proceeding which is generally conducted in public, resulting in a decision. Hearings are more formal than conferences.

The Commission can only conduct a hearing if it considers it appropriate to do so.^[2] In making this decision the Commission must take into account:

• the views of the parties, and
• whether a hearing is the most effective and efficient way to resolve the matter.^[3]

On the papers

Sometimes the Commission is able to determine a matter based on written submissions without the need for a formal hearing or conference where the facts are not in dispute. This is referred to as a matter being determined on the papers.

The Commission has the power to direct a party to a matter to provide copies of documents, records, or any other information.^[4]

The Commission may determine an unfair dismissal matter 'on the papers' provided the matter does not involve 'facts the existence of which is in dispute'.^[5]

Jurisdictional hearing

Applications for unfair dismissal may be legally challenged by an employer who believes that the Commission does not have jurisdiction to deal with the unfair dismissal application.

A jurisdictional hearing is a formal process by which a member of the Commission will make a decision as to whether the Commission can deal with the unfair dismissal case. This process involves the parties to the matter making submissions, giving sworn evidence and provides an opportunity to challenge or cross-examine the other party's evidence.

At a jurisdictional hearing each party will have an opportunity to present their case, and after hearing the evidence the member of the Commission will decide the matter either in favour of the applicant or in favour of the respondent.

In some cases a jurisdictional hearing will be conducted by telephone conference.

Initial matters to be considered before merits

See Fair Work Act 2009 s.396

The Commission must decide the following matters relating to an application for unfair dismissal before considering the merits of the application:

• whether the application was made within the 21 day time period required in s.394(2)
• whether the person was protected from unfair dismissal
• whether the dismissal was consistent with the Small Business Fair Dismissal Code, and
• whether the dismissal was a case of genuine redundancy.

References

^[1] SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 (5 October 2006) at para. 25, [(2006) 230 CLR 486].

^[2] Fair Work Act s.399(1).

^[3] Fair Work Act ss.399(1)(a) and (b).

^[4] Fair Work Act s.590.

^[5] Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland) [2015] FWCFB 1257 (Ross J, Acton SDP, Gostencnik DP, 24 March 2015) at para. 22.