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

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

PRACTICE NOTE No. 17A

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

Issued 29 April 2016 to replace Practice Note 17, latest re-issue 28 April 2022

Applications pursuant to Section 84 of the Industrial Relations Act 1996 (Unfair Dismissals)

1.     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.

2.     This Practice Note has effect from the date of issue, and amendments have effect from the date of re-issue.

3.     Allocation of Listing Date

When an application under s 84 of the Industrial Relations Act 1996 ('the Act') is filed, the matter will be listed for conciliation by a Member of the Commission. As a general rule, the conciliation will be listed not more than 28 days after the application is filed.

4.     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:

          i.      ready identification of the issues in dispute;

          ii.     ensuring readiness for the conciliation hearing;

          iii.    making contact with the opposing party prior to the

conciliation to attempt to narrow the issues in dispute and to explore the basis on which the matter might be resolved; and

           iv.    both before and during the conciliation using their best endeavours to resolve the issues in dispute, including by ensuring the participation in the conciliation by individuals with authority to settle proceedings.

b.     Ordinarily there should be only one conciliation, however, a Member may permit further conciliation conferences at their discretion.

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.

6.     Preliminary Issues

a.     If a preliminary issue such as a jurisdictional challenge is raised at or before the conciliation conference, the Member to whom the matter is allocated in order to undertake the conciliation will determine whether the issue will be heard as a threshold issue or will be dealt with after conciliation.

b.     If the Member determines that the issue should be heard before conciliation then the Member will make appropriate directions for the hearing of the issue and determine the question or issue in advance of any conciliation, if required.

c.     In cases where the Member conducts a conciliation before the hearing of the preliminary issue, and the conciliation fails, the Member will make directions for the hearing of the preliminary issue. Subject to either of the parties exercising their rights under s 173 of the Act, the Member will determine the preliminary issue.

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’ set out in cl 9 of this Practice Note, subject to such modifications or additions as the Member considers appropriate.

b.     The Member of the Commission who conducted the conciliation will also ascertain an estimate of the number of days required for arbitration. Hearing date(s) will usually form part of the directions of the Commission made pursuant to this Practice Note.

c.     To assist in the timely and efficient allocation of arbitration date(s), parties are encouraged to consider at an early stage whether they intend to exercise their rights under s173 of the Act and, if so, to do so expeditiously.

8.     Further Conciliation

The parties are encouraged to continue their attempts to resolve matters once the matter is listed for arbitration and particularly 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, preferably 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 prevents the Commission from undertaking further conciliation at the hearing of the matter.  Any further conciliation process does not excuse the parties from complying 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’ means directions in the following terms:

a.     all evidence must be in the form of signed written statements;

b.     the applicant must 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;

c.     the respondent must 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;

d.     the applicant must 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;

e.     the parties must 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;

f.      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;

g.     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;

h.     parties must file and serve at the same time as they file their written statements and other relevant documentation a short summary of their case;

i.       summonses for production of documents may be made returnable before the Industrial Registrar upon any date that the Registrar conducts a list;

j.       cross-examination of a witness will 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

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

The ‘usual directions’ are taken to include the need for compliance with Practice Notes 2A and 32.

10.     Compliance with Directions

Parties must comply with the ‘usual directions’ 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.

11.     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. It should be understood that adjournment applications will be granted only on clear and compelling grounds. 

c.     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.

N J Constant
Chief Commissioner