Applications Pursuant to Section 84 (Unfair Dismissals) Industrial Relations Act 1996

Practice Note No. 17A

Issued 29 April 2016, replacing Practice Note 17

Pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005

1. This Practice Note replaces Practice Direction No. 17

2. The purpose of this Practice Note is to facilitate the resolution of unfair dismissal matters before the Industrial Relations Commission of New South Wales by ensuring that such proceedings are conducted before the Commission in a just, quick and cost effective manner and that practitioners and others who appear before the Commission do all they can to facilitate such an outcome

3. This Practice Note has effect from the date of issue

4. Allocation of Listing Date

Upon filing of an application under s 84 of the Industrial Relations Act 1996 ('the Act') the Registrar shall cause, either at the time of filing or within a period of not more than 7 days, a date to be fixed for the matter to be conciliated by a Member of the Commission. The standard or usual time from filing to the first listing for conciliation and directions shall be a period of not more than 21 days.

5. Conciliation

a) Practitioners, industrial agents and others who appear before the Commission should do all they can to facilitate the fair and prompt disposal of matters before the Commission. Ways in which this should occur include:

• ready identification of the issues in dispute;
• ensuring readiness for the conciliation hearing; and
• both before and during the conciliation using their best endeavours to resolve the issues in dispute.

b) Ordinarily there should be only one conciliation, however, a Member may permit a further conciliation conference.

c) If an applicant fails to appear at a conciliation conference and has not provided a clear and compelling reason for non-attendance, this may result in the matter being dismissed, particularly if there is no appearance on two occasions.

6. Preliminary Issues

a) If a preliminary issue, for example, a jurisdictional challenge, is raised at or before the conciliation conference, the Member allocated to undertake the conciliation of the matter shall determine whether the matter shall be heard as a threshold issue or be dealt with after conciliation. If the Member determines that the issue should be heard before conciliation then the Member shall make appropriate directions for the hearing of the issue and determine the question or issue in advance of any conciliation, if required. In cases where the Member conducts a conciliation before the hearing of the preliminary issue, and the conciliation fails, the Member shall then forward the matter to the Industrial Registrar for the purposes of a date being fixed for the hearing of the preliminary issue.  Directions will be made by the Member allocated to hear the preliminary issue in order to dispose of the question.  

7. Directions for Arbitration Where No Preliminary Issue Raised

a) When a conciliation before a Member of the Commission is unsuccessful, the Member will make the 'usual directions' in cl 9 of this Practice Note to operate from the date the Member conducting a conciliation of a matter states that endeavours to settle the matter pursuant to s 86 of the Act were unsuccessful unless, after application by a party to the proceedings, the Member of the Commission who conducted the conciliation considers that the 'usual directions' should be modified and alternative directions made including the type of directions referred to in cl 10.

b) The Member of the Commission who conducted the conciliation shall also ascertain an estimate of the number of days required for arbitration and fix the matter for hearing on the next available date(s) within the Commission's central listing diary following the end of the programme fixed by the directions, having due regard to the availability of representatives of the parties, the view formed by the Member as to the time required to hear the matter (which may differ from the parties' estimate) and the objectives of this Practice Note as stated in cl 2 above.  Such hearing dates shall form part of the directions of the Commission made pursuant to this clause of the Practice Note.

8. Further Conciliation

The parties should attempt to resolve matters listed for arbitration prior to the time for compliance with directions in order to minimise the costs to them. Even after compliance with directions, further timely attempts by the parties to resolve matters are encouraged. To assist the parties in circumstances where such settlement attempts are positive but inconclusive, a further conciliation conference with the same Member who conducted the first conciliation may be requested not less than 7 days prior to the arbitration. A party may make such an application for a further conciliation conference only by consent of the other party and by writing to the Industrial Registrar. Nothing in this Practice Note shall inhibit the Commission from undertaking further conciliation at the hearing of the matter.  Such further conciliation process shall not alleviate the obligation of parties to comply with directions made in the proceedings unless an order is made by the Commission to that effect.

9. Usual Directions

For the purpose of this Practice Note 'usual directions' shall mean directions in the following terms:

i) all evidence shall be in the form of signed written statements;

ii) the applicant shall file and serve signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness together with any other relevant documentation or other evidentiary material within 21 days;

iii) the respondent shall file and serve signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness together with any other relevant documentation or other evidentiary material within 21 days of the date fixed for the filing and service of the applicant's evidence;

iv) the applicant shall file and serve any reply statements to the respondent's statements within 7 days of the date fixed for the filing and service of the respondent's evidence;

v) the parties shall include in or with their written witness statements all matters, documents or things upon which they rely or they allege are relevant to the proceedings;

vi) without leave of the Commission, written statements and other evidence filed and served later than the time specified by these directions or alternative directions issued by the Commission under cl 10 may not be relied upon by the party;

vii) summonses for production of documents may be made returnable before the Industrial Registrar upon any date that the Registrar conducts a list. Where orders are sought other than for photocopy access for both parties or if a claim for privilege or the like is made, those matters will be referred by the Registrar to a Presidential Member to be dealt with on an interlocutory basis. Under these arrangements summonses will be returnable before the Registrar, not the Member; and

viii) any application to vary these directions must be made in accordance with cl 10 of  this Practice Note.

10. Other Directions

Without limiting the directions which may be made by a Member of the Commission for the hearing of matters under Pt 6 of Ch 2 of the Act, a party to such proceedings may apply for and/or the Commission make additional or modified directions to the 'usual directions', including the following:

i) parties shall file and serve at the same time as they file their written statements and other relevant documentation a short summary of their case;

ii) without leave of the Commission, a party cannot rely on any matter that is not contained within the documentation filed and served by that party;

iii) except as provided by this clause or by leave of the Commission, proceedings shall be conducted on the written statements and other relevant documentation filed and served by a party;  

iv) cross-examination of a witness shall not be allowed unless, at least 7 days prior to the hearing, notice has been given to the opposing party that a witness is required for cross-examination; and

v) in cases in which the Commission considers there are sufficient reasons to warrant a departure from evidence being received in the form of written statements, the evidence in chief of a witness may be received orally (after a proof of evidence is provided to the opposing party).

11. Compliance with Directions

The 'usual directions' pursuant to cl 7 of this Practice Note or variations thereto pursuant to cl 10 must be complied with unless an application to vary directions is made in writing containing full supporting grounds and the Commission determines to vary the directions.  Such an application must be made prior to the date fixed under the direction which is sought to be varied unless leave is granted by a Member to entertain the application at a later time.

12. Adjournments

a) In accordance with the Commission's function to provide a forum for the resolution of unfair dismissal matters in a fair and prompt manner, as a general rule, an adjournment of the date that is allocated for conciliation will not be granted unless there are clear and compelling reasons for the adjournment to occur.  Consent of the opposing parties does not guarantee an adjournment will be granted by the Commission, although it will be a factor taken into account in the determination of such application.

b) The day (or days) in which the application will be dealt with by arbitration is definite. Any application for an adjournment of an unfair dismissal matter fixed for arbitration must be made in a timely way, be in writing and contain full grounds. Applications will be considered and determined by the Member allocated the hearing of the unfair dismissal application unless the application is made prior to the date fixed for conciliation.  In such case, the Member allocated the conciliation of the matter shall determine the application. It should be understood that adjournment applications will be granted only on clear and compelling grounds.

c) Other than the grant of consent applications, the Member of the Commission determining the grant or refusal of an application for adjournment should provide shortly stated reasons for the decision.

d) In the event that a party fails to attend at an arbitration hearing, the arbitration may, in appropriate circumstances, be heard and determined in the absence of that party.

Walton J, President
29 April 2016