FWC acknowledges surge in dismissal cases, high proportion labelled “unmeritorious”

During a recent address to a national conference being held in Brisbane, Fair Work Commission (FWC) President, Adam Hatcher, referenced a nearly 25% increase in applications to the FWC across the past five years, which he assessed as “simply unsustainable” if the trend were to continue.

Whilst the rollout of the Albanese Government’s IR reforms has created some new jurisdictions for the FWC to oversee in recent years, Justice Hatcher observed that the increased applications are “overwhelmingly” of the “traditional matter types” involving dismissals. Justice Hatcher expressly referenced the surge in general protections (GP) dismissal claims – which have increased more than 25% in five years – where two-thirds of applications have been lodged by terminated workers who had not met the minimum employment period to be eligible to pursue an unfair dismissal claim.

Justice Hatcher took aim at paid employee agents who “have developed a business model which involves treating GP claims as a substitute for an unfair dismissal claim”, adding, “we’re not helping anybody, particularly persons with meritorious claims, if our processes are slowed down and clogged up dealing with claims that are completely unmeritorious and should never have been filed in the first place”. Justice Hatcher further lamented that, “for every unmeritorious claim that’s filed, it means that an employer is dragged into the system and has to spend time and resources participating in a claim which is not going to succeed”.

In the interest of increasing efficiency, Justice Hatcher identified that FWC processes will be refined, and where GP dismissal claims are concerned, various changes will be implemented, including revision of the claim and response forms, such that applicants will be compelled to provide “a more rigorous articulation of… the GP provisions [that] have been contravened”, while respondents will have to provide more detail on any jurisdictional objections. Amongst other changes, Justice Hatcher also highlighted proposed limits to representation in GP conciliation conferences; that parties will be put on notice that conferences seek to settle claims and are “not a substitute for a hearing”; and, that termination of conferences will occur where one or both parties do not wish to settle.

The review will extend to all other FWC processes once the efficiency reforms have been implemented within the GP dismissal claims arena.