Increase in Unfair Dismissal cases

The President of the Fair Work Commission, Justice Iain Ross, said unfair dismissal claims increased 60% last month in comparison with April last year and the caseload overall grew by 40%. Due to the increase, the Commission has asked the Federal Government for extra resources to deal with a coronavirus-driven "surge" in unfair dismissal claims.

The Commission's telephone helpline has experienced a 25% rise in calls, with 1700 of them directly related to COVID-19 and stand down disputes have also burgeoned, from about 10 in the same period last year to 50 this year. About 200 JobKeeper disputes have also been filed in the Commission, although more than half were withdrawn, largely because they relate to matters outside the new jurisdiction.

It goes without saying that it’s currently much harder for employees to find alternative employment and Justice Ross said voluntary settlements of matters had declined, reflecting the difficult circumstances parties face.

Whether it is a decision to dismiss an employee, restructure and reduce the workforce or issue JobKeeper-enabling directions, it is incumbent on employers to comply with legislative obligations, follow correct procedure and document the basis for justifying their decision.

In the first COVID-19 decision, the Commission has made Orders against Australia’s leading legal transcription service provider (Auscript) for failing to properly consult with employees in accordance with its Enterprise Agreement before giving effect to redundancies arising out of the COVID-19 pandemic.  

The business has suffered an estimated 60% reduction in work and argued that it had to make a sudden decision to maintain the viability of its business in Australia. A dispute was filed with the Commission on the basis that Auscript failed to comply with its consultation obligations before closing its sites and before deciding to make employees redundant [ASU v Auscript (2020) FWC 1821].

Employers ought to be circumspect when rushing to implement measures to respond to the business impact of the COVID-19 pandemic.

NECA Legal strongly urges NECA members to call them before dismissing an employee or issuing JobKeeper-enabling directions. The NECA Legal lawyers are experienced in assisting employers with misconduct or performance-related terminations, as well as giving guidance in relation to the consultation obligations and selection criteria when dealing with redundancy situations.

Disclaimer: This summary is a guide only and is not legal advice. For more information on employers’ obligations, call NECA Legal (WA) Pty Ltd on 6241 6129 or email