title: Why Unfair Dismissal Arbitration? An exploration of the factors that influence parties reaching agreement or seeking arbitral outcomes in the Fair Work Commission (2015-2016)
Creators: name: See, Andrew J.
Publisher: name: Griffith University
Year: 2021
Subjects: subject: Fair Work Commission
subject: Australia
subject: arbitration
subject: workplace conflict

description: In the 2015-2016 Fair Work Commission (FWC) reporting year, 15,028 applications for an unfair dismissal remedy were made to Australia’s national workplace relations tribunal, of which only 2.2 per cent of those cases proceeded to arbitration. This research seeks to understand why arbitration? It does this by firstly looking at the types of unfair dismissal case that come before the FWC and exploring whether some of these are less likely to be resolved by conciliation. Secondly, it will look at the main factors that influence why matters resolve at the various stages of the FWC conciliation and arbitration process and thirdly, explore why employees pursue arbitration for the resolution of an unfair dismissal remedy application. To set the scene the research identifies three primary categories of workplace conflict: the strategic or environmental (category one); the task allocation or task based (category two); and relationship or transactional (category three); and looks at the way in which each of these sources of conflict may give rise to dismissal decisions. Thereafter, the study examines the behaviour of the parties where if an election is made to contest the dismissal decision, they must navigate their way through the various phases of the FWC’s conciliation and arbitration process. Based on a single method qualitative approach, the study explores the views of 50 interviewees (FWC members and staff conciliators, union and employer associations, legal and non-legal representatives, employers and applicants), many of whom were involved in arbitrated FWC ‘unfair dismissal decisions’ in the 2015-2016 reporting period. From that data set, the 326 (2.2 per cent) FWC decisions were reviewed and classified based on 11 discernible dismissal types (such as dishonesty, excessive absenteeism and unsatisfactory work performance). The research concludes that there appears no one dismissal type more likely to proceed to arbitration. Instead, there are factors that affect why matters resolve at the various stages of conciliation and arbitration. At the early phases, where parties understand the process, the facts in dispute can be easily established and both sides are prepared to compromise, matters will more readily resolve. Thereafter, at later phases, issues such as representation, the pursuit of reinstatement, matters of policy, principle, vindication, justice and the right to be heard, all play a far more important role. Other factors include the expectations, emotions and conduct of the parties. In all, the pursuit of compensation is not a key influence as to why parties proceed to arbitration. There is though some evidence that the category of conflict - that is whether it has as its source the environment, the task or the relationship - may have some bearing on the length of time it takes to bring the dismissal grievance, but not necessarily the conflict itself, to an end. In this regard, the research confirms earlier studies that have identified the difficulties associated with resolving personal and relationship conflict at work (Jhen, 1997; Ayoko et al., 2003; and Southey, 2010, 2016). Earlier Australian studies found that arbitration does not bring significant compensation benefits (Chelliah and D'Netto, 2006; Freyens and Oslington, 2013). This research supports that view and shows that an arbitrated result is for the most part, pursued for reasons other than money.