Commission proceedings

Lodging an unfair dismissal application doesn’t send a case straight to a hearing. It starts with conciliation, representation isn’t a given, and the normal rule is that each side pays its own way — whatever the outcome.

What you’ll be able to do

• Explain what actually happens between an application being lodged and a final decision, and why conciliation comes first.
• Advise a client realistically on whether the Commission will let them bring a lawyer, and what that application needs to show.
• Set correct expectations about costs — including the risk of a costs claim backfiring.

Conciliation comes first

Once an application is lodged and a response filed, the Commission’s standard next step is a conciliation conference, not a hearing. In Cowper v Trustees of Edmund Rice Education Australia, a staff conciliator conducted the conference; only once [2020] FWC 316 at [9] did the matter proceed toward a liability hearing.

Conciliation is treated as without prejudice. Parties can speak more freely there than they would in a hearing, because what’s said isn’t meant to be used against them later. In the same costs dispute, the respondent objected to the applicant relying on anything said at the conciliation conference, on the basis that [2020] FWC 316 at [36].

Conciliation can end in a few different ways:

• Settlement. In Bell v Singaria (Aust) Pty Ltd, a telephone conciliation conference produced an agreed outcome — a payment, a resignation and a statement of service — and [2020] FWC 1181 at [5].
• Withdrawal. An applicant can discontinue rather than proceed.
• No resolution, so it moves on. If conciliation doesn’t resolve things, the matter is set down for arbitration — a conference or hearing where the Commission actually decides the case on the evidence, rather than facilitating a deal.

A conciliation outcome can be final, even if nothing was signed on the day. In Bell, the applicant later tried to walk away from the deal reached at conciliation. The Commission found a binding settlement had been reached and [2020] FWC 1181 at [47]; [2020] FWC 1181 at [48]. Treat what’s agreed at conciliation as real — confirm your client’s instructions before anything is put to the other side, not after.

Representation: permission, not a right

Section 596 of the Fair Work Act doesn’t let a party simply turn up with a lawyer or paid agent. In Durmic v Department of Home Affairs, the Commission described a decision to grant or refuse permission as one that [2023] FWC 1502 at [12], because it can change the whole dynamic of the hearing.

Permission can only be granted on one (or more) of three grounds:

• it would let the matter be dealt with [2023] FWC 1502 at [13];
• it would be unfair not to allow representation because the person can’t represent themselves effectively; or
• it would be unfair not to allow it, having regard to fairness between the parties.

The Commission in Donnola v Silverleaf Constructions put it simply: it [2021] FWC 6336 at [7] to be able to exercise the discretion — but satisfying a ground doesn’t make the grant automatic; it opens a discretion the Commission can still decide not to exercise.

Permission is the exception, not the rule. The Explanatory Memorandum, reproduced in Durmic, records that [2023] FWC 1502 at [20]. In Donnola, the Commission reasoned that [2021] FWC 6336 at [34] — representation is the departure from the norm, and the applicant has to make the case for it.

What persuades the Commission — and what doesn’t

Durmic shows what a successful application looks like. The Department of Home Affairs faced a jurisdictional objection that turned on the intersection of a Commonwealth statutory scheme and the general protections case law. The Commission accepted that the matter [2023] FWC 1502 at [30], and separately found that [2023] FWC 1502 at [54].

Donnola shows what fails. The applicant’s solicitor had been acting since the dispute began and the applicant said he wasn’t legally trained, but he hadn’t pointed to anything genuinely complex in the case, and the Commission found that [2021] FWC 6336 at [22] to grant permission. Permission was refused: [2021] FWC 6336 at [35].

The pattern across both: the Commission wants a specific, demonstrated reason tied to this matter — a genuine point of legal or factual complexity, or a concrete inability to self-represent — not a generalised preference for having a lawyer, and not “the other side might get one too” asserted in the abstract.

At conciliation specifically, the same permission requirement applies, but the informal, settlement-focused nature of a conciliation conference means parties attend unrepresented far more often than at a hearing — advisers should expect to be in the room (or on the phone) as a support person rather than as a permitted representative unless permission has actually been sought and granted.

Costs: each side bears its own, as the default

The basic rule is that nobody pays the other side’s costs just for winning or losing. Section 611, reproduced in Petersen v Kizuri Capital Pty Ltd (T/A Allpet Products), states that [2021] FWC 526 at [57]. The Commission in that case described the costs jurisdiction as sitting within “a statutory framework where [2021] FWC 526 at [58].”

Costs orders exist, but they’re the exception, and courts and the Commission treat them that way. In McCaffery v Kizuri Capital Pty Ltd, the Commission observed that [2020] FWC 2491 at [42].

There are two separate statutory routes:

• Section 611(2) — costs where an application or response was made vexatiously or without reasonable cause, or where it should have been reasonably apparent it had no reasonable prospect of success.
• Section 400A — specific to unfair dismissal matters, and aimed instead at conduct during the case: costs where a party’s unreasonable act or omission in connection with the conduct or continuation of the matter caused the other side to incur costs.

Vigorously defending a claim isn’t, by itself, unreasonable. In Cowper, the respondent fought a genuinely contested factual dispute and rejected two settlement offers. The Commission found that [2020] FWC 316 at [58], and ultimately [2020] FWC 316 at [82]. Losing on the merits, even losing badly, doesn’t get you costs on its own.

When a costs claim backfires

McCaffery is the sharpest illustration in this area: the respondent brought its own s.611/s.400A costs application against the applicant, but at the hearing [2020] FWC 2491 at [66]. The applicant then made a reciprocal costs application — against the respondent, for bringing that claim. The Commission found the vexatious-application ground had, on the facts known to the respondent at the time, no reasonable prospect of success, and [2020] FWC 2491 at [73] on an indemnity basis for that part of the claim.

A costs application is itself an application — if it’s weak, it can expose the person who brought it.

Failure patterns

Adviser checklist

Practice scenario: the store manager’s case

Decisions cited

Every pinpoint below was read in the reconstructed decision text before it was used. Rows marked “partial” confirm the proposition pinpoint only — a later part of that decision (such as the exact costs figure ultimately ordered) was not independently confirmed in this pass.