Important information for employers; reinstatements on the rise

15 November 2017

Fair Work Commission (FWC) members have suggested that a New South Wales pilot program with the intention of accelerating unfair dismissal claims has generated a rise in reinstatements.

According to the Vice President of the FWC, Joe Catanzariti, the program operates with applications first going to telephone conciliation, and if the telephone conciliation does not result in a satisfactory outcome, it is referred to a member within a couple of days. The member then lists the matter for a first directions hearing that week, with “60 – 70% of matters [not going] any further than that [as] they actually settle”.

This comes after criticisms levelled at the tribunal that there are delays in the system which affect the number of reinstatements.

Under the system which is currently used across the rest of the tribunal’s operations “conciliators issue all the directions and set a timetable, and the member only gets the matter two to three weeks out before the hearing”, says Vice President Catzariti.

However, under the new program, a key task is to have the final hearing in 70 days from the application being made.

Discussions about which systems work better are soon to be had, as users of the pilot gradually evaluate its levels of success.

In the interim, Vice President Catzariti has stated that there “has probably been a spike in reinstatements [since the pilots implementation] as it seems that the faster a matter gets on, the greater the chance of reinstatement”.

Nevertheless, as all good Vice Presidents do, Catzariti warns that “it is still too early” to draw firm conclusions, but he can confirm that the unfair dismissal load had increased by about 5% over the last 12 months and that of the 307 dismissal cases arbitrated in 2016-17, 25 resulted in reinstatements.