If you have not resolved a claim for unfair dismissal at conciliation, the claim will likely proceed to a hearing or a conference. A hearing or a conference is the final stage of an unfair dismissal claim in the Fair Work Commission (FWC). To help you prepare for a hearing, this article outlines:
- unfair dismissal claims;
- differences between a hearing and a conference in the FWC;
- procedures involved in a hearing; and
- general rules concerning costs.
What Are Unfair Dismissal Claims?
You can face a claim for unfair dismissal if you terminate employment in a way that:
- is harsh, unjust or unreasonable; and
- is not based on a genuine redundancy.
What the FWC considers ‘harsh, unjust or unreasonable’ depends on various indicators. For example, suppose you had no valid reason for dismissing your employee and did not allow your employee to respond to the dismissal. In that case, this could be considered ‘harsh, unjust or unreasonable.’ Likewise, a genuine redundancy is when your employee’s job is no longer needed to be performed by anyone.
Ultimately, an employee can make an unfair dismissal claim with the FWC if they:
- have completed the minimum employment period, meaning they have worked in your business for at least 6 months, or 12 months if you are a small business employer; and
- earn less than the high-income threshold, which is $167,500 as of 1 July 2023; or
- are covered by a modern award or an enterprise agreement.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Differences Between a Hearing and Conference
A hearing is a proceeding that the FWC generally conducts in public. It is a determinative process, meaning a member of the FWC will reach a legally binding decision.
Generally speaking, there are several possible outcomes from the hearing. The Commissioner may find that the dismissal was:
- fair and therefore dismiss the employee’s claim;
- unfair and reinstate your employee into their old position;
- unfair and order compensation where reinstatement is inappropriate; or
- unfair, but neither compensation nor reinstatement is appropriate.
Unlike a hearing, a conference is common in unfair dismissal cases. Generally, a conference takes place in private, and the Commission will not provide reasons for its decision. Nor will the claimant be denied the presence of a support person.
Continue reading this article below the formProcedure
Before the hearing, both parties should have submitted the following:
- an outline of their arguments;
- statement(s) of evidence, including documentary evidence such as payslips and the dismissal letter; and
- a document list.
At a hearing, each party will present its case before a member of the FWC, using the evidence set out in the Statements of Evidence. It may be the case that anyone who provided a witness statement must attend the hearing. After both parties have presented their cases, a member of the FWC will consider all the evidence before them and provide a written and legally binding decision.
Similarly, a ‘determinative’ conference is a legal proceeding. In this sense, both you and the claimant may give evidence or bring witnesses. Afterwards, a member of the FWC will decide if the Commission should make an order.
Costs and Compensation
If the unfair dismissal claim is successful, the maximum the FWC can order is the lower of:
- half of your employee’s annual wage; or
- the compensation cap, which, as of 1 July 2022, is $81,000.
The FWC can reduce the amount of compensation if it finds that the claimant:
- did not suffer any financial loss from the dismissal; or
- deserves a lower amount because of their misconduct.
For example, say a claimant earns a salary of $60,000 per year. Since half of their salary is $30,000 and the compensation cap is currently $81,000, the claimant’s compensation cap will be the lower of these two amounts. Therefore, the claimant’s compensation cannot exceed $30,000.
It is a general rule of thumb that each party to an unfair dismissal claim in the Fair Work Commission must usually pay their own costs. However, the FWC does have the power to order that one party pay some or all of the other party’s costs if the application or response is frivolous or vexatious with no reasonable prospect of success.
Key Takeaways
If you have not settled for an unfair dismissal claim, the claim may proceed to a hearing or conference. There are differences between the two. For example, a hearing is a legal proceeding in public, meaning a member of the FWC will reach a binding decision. A conference, however, takes place in private. A member of the FWC can decide if the Commission should make an order.
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Frequently Asked Questions
A genuine redundancy is where you no longer need your employee’s job to be performed by anyone.
An employee can only make an unfair dismissal claim with the FWC if they have completed the minimum employment period, meaning they have worked in your business for at least 6 months, or 12 months if you are a small business employer. They also have to earn less than the high-income threshold, which is $167,500 as of 1 July 2023 or be covered by a modern award or an enterprise agreement.
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