Fair Work Commission hearings

More than 90% of unfair dismissal cases are resolved before reaching a Fair Work Commission (FWC) hearing. If an unfair dismissal application cannot be resolved at conciliation, the application proceeds to a hearing or conference. A conference is more informal than a hearing, whereas a hearing is more like a court hearing with witnesses and sworn submissions of evidence.

Once an unfair dismissal claim is made, employers are usually contacted by the FWC to respond with additional information about the dismissal and why they believe it was valid. A conciliation conference is then scheduled to allow both parties to discuss the case and try to negotiate a settlement. This is usually done by phone.

Employers should consider seeking legal advice before the conciliation meeting to determine the merits of the case, and to consider the costs involved – both in terms of a settlement amount, and the time and costs involved to take the matter further if no agreement is reached. 

If both parties are representing themselves, the case may be heard at a determinative conference or hearing. These are less formal than a hearing, and are conducted in private. If a decision is made, it is published on the Commission’s website with both parties’ names. 

The FWC website offers documents and guidelines to help employers prepare for a conference or hearing.

tips for hearings and conferences

when addressing a Commission member, refer to them by their title, e.g. deputy president or commissioner – Commission staff at the hearing or conference can advise of the appropriate form of address 

  • arrive early as proceedings begin on time, and notify Commission staff on arrival 
  • if running late, contact the FWC as soon as possible to ensure a message is sent to the appropriate representative
  • make sure all phones and pagers are switched off or in silent mode in the hearing or conference room
  • do not speak when a witness is taking an oath or affirmation
  • do not interrupt the other party or the Commission member when they are speaking
  • if referring to documents during the hearing, ensure there are enough copies for all parties involved 
  • do not eat or chew while in the conference or hearing
  • there is no dress code, but it is advised to dress appropriately for a formal meeting.

appeals

There is no automatic right to appeal a decision made by the FWC, but an application can be lodged for permission to appeal within 21 days of the decision being made. If the application cannot be made within the timescale, then an application for an extension of time must also be made. 

An application to appeal will only be granted if it is in the public interest and the decision involved a significant error of fact. It is heard by a full bench (usually three members).

If permission to appeal is granted, the full bench may do any of the following in relation to the appeal:

  • confirm, quash (suppress) or vary the decision
  • make a further decision in relation to the matter that is being appealed
  • refer the matter being appealed to a Commission member for further action.

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