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The Fair Work Commission - another sorry saga

One day I'm sure I will finally be able to write something positive about the workings of the nation's employment relations tribunal, the optimistically-named 'Fair Work Commission'. Today is not that day.

You may already be aware that appealing a decision made by a Commissioner is a fairly daunting task. Appeals can only be heard if permission is granted by the Commission itself, so aggrieved employers and employees need to explain why they are aggrieved before they can win approval to challenge a decision that has been handed down.

Unfortunately - and thanks in part to the Commission not being bound by the rules of evidence that apply in courtrooms - the Commission likes to hear arguments about granting permission to appeal on the same date that the appeal itself will be heard (if permission is granted). In other words, parties need to arrive prepared to make all their substantive arguments about the actual appeal matters themselves even though permission to appeal might be refused.

Just imagine you're the employer who has prevailed against an employee who lodged an unfair dismissal claim against you. If that ex-employee wants to appeal the decision, they simply need to complete an online form and lodge it with the Commission. All sorts of detailed 'Directions' will then be issued about representation, legal precedents and so-forth and the matter will be listed for hearing before a Full Bench of the Commission.

This means you will run around engaging paid agents or lawyers and devoting precious time and energy - not to mention money - in preparing your arguments against the key points of the original case the ex-employee now wants to challenge. But after all that time and money, you could still  turn up on the day and, after making preliminary submissions, the Commission might decide not to grant the ex-employee permission to appeal. Who will now compensate you for all the lost productivity, wasted-time and legal bills you have incurred? No-one.

If the Government genuinely believes that the right to appeal should be decided by the Commission, then surely it is only fair that this matter be dealt with first so that parties can be spared unnecessary effort and expense should the Commission refuse permission to appeal. 

This may all sound very technical and irrelevant right now, but I can assure you it won't when it's you and your business being dragged into the Commission by an angry former employee. As I have written previously, this Commission is simply not fit for purpose.

Published: Friday, February 14, 2014

Read article on Switzer Daily.