An employee who falls outside the coverage of the Fair Work Act’s general protections provisions (Part 3–1) may be eligible to lodge an unlawful termination application under Part 6–4 of the Fair Work Act.

The broad application of the general protections provisions means that not many applications rely on the unlawful termination provisions, which apply mainly to non-national system employees. This is reflected in the considerably lower number of unlawful termination applications made to the Commission each year, compared with general protections dispute applications (both involving and not involving dismissal).

The processes in the Fair Work Act for dealing with unlawful termination applications are broadly similar to those for general protections disputes. An application must be lodged within 21 days after the applicant’s employment was terminated.

The Commission must attempt to resolve the dispute through private conference and, if unsuccessful, must issue a certificate stating that it is satisfied that all reasonable attempts at resolution have been, or are likely to be, unsuccessful.

The parties can consent to the Commission making a binding decision through consent arbitration. If the parties do not agree to arbitration, the employee can make an application to the Federal Court of Australia or Federal Circuit Court of Australia to deal with the matter. The Commission must advise the parties if there is no reasonable prospect of successfully resolving the dispute either during consent arbitration before the Commission or through a court application.

Performance overview

In 2018–19:

• 127 unlawful termination applications were lodged
• 125 applications were finalised, of which 122 (98 per cent) were resolved by the Commission’s conference process without a certificate being issued.

Performance discussion

The number of unlawful termination applications increased by 41 per cent, to 127 in 2018–19 up from 90 in 2017–18. As shown in Table 15, this is the largest number of applications lodged over the past four years.

The Commission finalised 125 unlawful termination applications in 2018–19. In only 2 per cent of cases, the Commission issued a certificate stating that it was satisfied that all reasonable attempts to resolve the dispute (other than by consent arbitration) had been, or were likely to be, unsuccessful. This is fewer than previous years; a certificate was issued in 14 per cent of cases in 2017–18 and in 12 per cent of cases in 2016–17.

Table 15: Unlawful termination disputes – applications lodged and finalised

Timeliness

In 2018–19, the Commission held its first conference in a median of 15 days from lodgment, an improvement from 22 days in 2017–18. The median time elapsed from lodgment to first conference has improved significantly over the past four reporting periods, as shown in Table 16.

Showing similar improvement, the Commission held its first conference within 42 days in 90 per cent of matters in 2018–19, 2 days earlier than in 2017–18 and 13 days earlier than in 2016–17.

The majority of unlawful termination applications are withdrawn by the employee – of the 125 cases finalised in 2018–19, 80 per cent were withdrawn. As a result, the median number of days taken for the Commission to finalise a case is lower than the median number of days from lodgment to first conciliation, as shown in Table 16.

In 2018–19, unlawful termination cases were finalised in a median of four days from lodgment. This was five days earlier than in 2018–19 and a significant improvement on earlier reporting periods.

Table 16: Unlawful termination disputes – timeliness