Navigating Unfair Dismissal Claims for Employers

An application for an unfair dismissal remedy can be dismissed by the Fair Work Commission for several reasons:

  • the application is not made in accordance with the Fair Work Act;
  • the applicant refuses to respond to directions or attend a conference or hearing;
  • the application is frivolous or vexatious, or
  • the application has no reasonable prospects of success.

The Commission dismisses applications sparingly and with caution.

Failure to Attend

When the Commission is considering dismissal of an application due to a defaulting party’s failure to attend proceedings, they will ensure:

  • the defaulting party is given an opportunity to explain the reasons why the Commission should not dismiss the claim for a failure to attend the proceedings;
  • the reasons are considered in the context of ensuring the proper administration of justice and fairness to both parties;
  • the defaulting party is made aware that an application to dismiss is being considered by the Commission;
  • the defaulting party is warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed, and
  • all reasonable steps have been taken to give an absent party every opportunity to present themselves for hearing.

Frivolous or Vexatious Applications

When an employee seeks to pursue an application, after an executed settlement agreement has been reached between the parties, and the settlement has been paid. The application can be dismissed for being frivolous or vexatious. The Commission will consider an application frivolous or vexatious where the application:

  • is obviously untenable that it cannot possibly succeed;
  • is manifestly groundless;
  • is manifestly faulty that it does not admit of argument;
  • discloses a case which the Commission is satisfied cannot succeed, or
  • does not disclose a cause of action.

Prospect of Success

The Commission determines whether the evidence of the party responding to the objection has sufficient quality or weight to succeed. An application can be dismissed on the basis that it has no reasonable prospects of success after the Commission has heard the applicant’s case but before the respondent has started to present its case.

Application by Employer

The Commission may, on application by the employer, dismiss an application where the applicant has unreasonably:

  • failed to attend a conference or hearing at the Commission
  • failed to comply with a direction or order of the Commission, or
  • failed to discontinue the application after a settlement agreement has been reached.

WCA Solutions team of Industrial Relations and partnered Employment Lawyers are experts at representing and supporting clients to provide advice, settle and defend unfair dismissal claims.

Contact us at 9383 3293 or request a call back to arrange a meeting.


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