There is a high likelihood that every employer will have to deal with action – or at least the threat of action – involving the Fair Work Commission (FWC).
Let’s take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim.
what is the fwc?
The FWC is Australia’s national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations.
As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable.
However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.
how is the fwc approached?
Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application.
If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal.
What does the fwc consider?
A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:
- “Stop” orders for industrial actions;
- Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
- Variations in salary awards;
- An order to prevent bullying in the workplace;
- A finding as to whether a disciplinary action is reasonable.
what is the claims process?
Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to:
- Recommend informal dispute resolution;
- Proceed to a hearing of all interested parties;
- Require written submissions by way of evidence;
- Provide directions on dealing with the matter;
- Make binding decisions.
It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible.
the importance of a defensible investigation report
The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report.
The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report.
Perhaps most crucially, the FWC will make an assessment on whether an employer’s findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation.
Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.