15 July 2022
In our last article, we outlined the role of the Fair Work Ombudsman and how they work with Employees and Employers. Now it is time to look at the role of the Fair Work Commission. The Fair Work Commission is the national workplace relations tribunal. They help resolve disputes at work, create the awards and review the minimum wage. People can lodge applications for unfair dismissal and general protections claims, as well as apply for orders to stop bullying or sexual harassment.
These claims all have different process associated with them. As such, we thought it might be useful to explain how each of them work.
Effectively, an Unfair Dismissal Claim can be lodged by an Employee within 21 days of their dismissal from a business. The Employee, often referred to as the applicant, has to submit what is known as the F2 Form. This form asks a series of questions of the Employee that relate to the situation of them being terminated.
What the F2 form contains:
The F3 form is a counter claim to the Employee’s application, whereby the Employer can recount the course of actions that have been held and provide information from their perspective.
If applicable, the Employer can also include evidence to support their side of the argument. This is then lodged back with the Commissioner who will review both sides of the claim prior to the hearing which is set once the Employee has lodged the claim.
In some circumstances the application can be settled prior to the hearing and the hearing does not need to go ahead. In other cases the hearings are conducted via conference. Each party can choose to self represent or have an appointed spokesperson. This spokesperson must seek to apply to appear on behalf of the Employee or Employer. As such, the hearing is held virtually where both parties are dialed in by the Commissioner.
As a standard practice, the Commissioner gives a brief overview of their role, parties’ titles, and the allotted hearing time.
Once this has been established, the Commissioner asks the Employee for their opening statement. After hearing this, the Commissioner then reverts to the Employer for their input and rebuttable of the claims made. Depending on each party, the Commissioner may ask a series of questions or seek to clarify information before opening it up to discussion.
Following the discussion and depending on the hearing, the Commissioner facilitates parties in finalising hearings, a phase known as negotiation. Here, the Commissioner mediates between the Employee and Employer. No ruling is made, but empathy is used to promote a commercial settlement. This process, though time-consuming, concludes the hearing if an agreement is achieved.
A settlement could involve finances, references, altering termination to resignation, and a service statement. A Deed of Release is drafted for both parties to sign, ensuring no further action. The Commissioner will send out instruction to each party to close off the case.
In saying that, sometimes a settlement cannot be finalised in the time allocated for the hearing. Based on the situation, the Commissioner might extend time for more evidence or parties to reach a conclusion, especially with lawyers present. But ultimately, they will put a timeframe on the hearing.
If a satisfying conclusion isn’t reached, the applicant can opt to escalate the claim to arbitration in the relevant court system. This is often a costly exercise to undertake, particularly given the legal costs.
Based on case volume and workload, the hearing’s timing varies per claim. If this occurs, assess the situation through a risk and financial analysis to decide between pursuing the path or opting for a commercial settlement.
This is where we would support you in your decision making. We would work with you to determine the best outcome for you and your business. Need help with Fair Work? Act Now – We are here to help – Call Now Actually 1300 605 305
