That's what a General Counsel I used to work with calls it - the Wild, Wild West of Law.
The Fair Work Commission manages all matters relating to Unfair Dismissal claims, General Protections claims, Industrial Disputes, and matters relating to the making of Enterprise Agreements; and unless the matter ends up in the Federal Circuit Court, the Fair Work Commissioners are the all-powerful arbiters on IR matters.
This week, I was discussing unfair dismissals with a lawyer and conveying stories of cases won and lost and it got me thinking about the 'fairness' of the decision-making process in unfair dismissal matters.
I realised our Commissioners need flexibility to reach a decision they think is fair and reasonable in the circumstances; as with all employee-related matters, it's rarely black and white.
To decide if an employee's dismissal is harsh, unjust or unreasonable, the Commissioner will rely on Section 387 of the Fair Work Act 2009 to guide their decision. s387 asks whether there was a valid reason for the dismissal; if the person was notified of the reason and given the opportunity to respond; the presence of prior warnings; whether the person was permitted a support person; if the employer had the benefit of an HR professional to guide them and/or the size of the organisation to appropriately manage the process; and finally.... the catch-all...
"Any other matters that FWC considers relevant"
In my experience, these "other matters" could be any number of factors, including length of service, age, likelihood of the person finding alternate employment, whether they are the primary income provider for their family, their residential location, and so forth.
So, continuing the Wild West theme, if you are going to gamble with arbitration - this is the step after the phone conciliation where no settlement was reached - you need to know when to hold 'em and when to fold 'em...
Knowing when it is more commercially sensible to settle a matter at conciliation rather than proceed to arbitration could save you thousands of dollars in compensation (if you're the Respondent), not to mention the cost to prepare and deliver the case.
A recent unfair dismissal decision - [2019] FWC 8155 - Nunez v Elite Truck Bodies P/L t/a Elite Truck and Trailer Repairs - cost the Respondent $4,904.45 in compensation because while there was a valid reason for the termination, the Respondent had failed to provide the Applicant with procedural fairness, resulting in the finding that the termination was harsh and unreasonable. The compensation costs and the legal costs for both parties to prepare and appear at the Commission may well have been saved, or significantly reduced by a decision to settle the matter at conciliation.
I once advised a senior manager against proceeding to arbitration due to the flaws in our case; however, he was so wound up in "the principle of the matter" that he decided to proceed. We lost the case, resulting in reinstatement of the dismissed employee and a payment of 17 weeks for lost wages.
It can be a big gamble... especially if you get it wrong.
What have been your experiences with the FWC? Do you think the Commissioners' job is hard? Are they biased, or are they simply using the flexibility of the Act to try to get the best and fairest outcome?
If you need support with an unfair dismissal, or other FWC matter, whether you are the Respondent or the Applicant, please contact me to discuss how I can help - martha.travis@optusnet.com.au.