Arbitration

At arbitration, you will be given a chance to present your evidence (including any witnesses) as will your employer. After this, a member of the Commission will make a decision in your case and make orders about whether your dismissal was in breach of a general protection (and what should be done if you were). The orders made could include:

• an order that you be reinstated to your job
• an order that you are paid compensation.

The Commission will not make orders that the employer write you a reference or pay you other amounts of money they owe you. Orders are only about your dismissal. You must apply to the Commission for arbitration within 14 days of the Commission issuing the certificate, confirming that you were not able to settle the case during conciliation.

For more information about what to do if your employer hasn’t paid you your wages and entitlements, see Wages and entitlements.

Before arbitration you should start preparing your case. The Commission will send you:

• a Notice of Listing that tells you the date of arbitration
• instructions on what you must do before arbitration (for example, file witness statements by a certain date).

These instructions are called 'directions'.

For more information see Directions, below.

For more information about preparting for arbitration, see:

• Step by step guide – Preparing for arbitration
• Evidence - General protections dismissal 

When you are sent a Notice of Listing for a hearing, you will also be given directions to prepare your case for the arbitration hearing. Directions are written instructions from the Fair Work Commission (the Commission) about preparing, filing and serving (formally giving the other side) documents.

What directions will the Fair Work Commission make? 

The Commission will make directions that:

• you prepare and file an outline of submissions and any witness statements.
• your employer prepare and file an outline of submissions and any witness statements.

If there is a good reason why you cannot follow the directions, you should contact the Commission straight away.

For information about writing an outline of submissions, see How to write an outline of submissions, below.

For information about writing a witness statement, see How to write a witness statement, below.

What happens if you do not follow the directions?

If you have not followed the directions, the Commission may send you a notice telling you to attend a non-compliance hearing. This hearing could be done by video link or telephone.

At the non-compliance hearing you may be asked:

• to explain why you did not follow the directions
• when you can do the things in the directions.

You may be given another chance to follow the directions. If you still do not follow the directions, your case may be 'struck out'. This means that the Commission will end your case. If this has happens to you and you want to continue you case, you should get legal advice straight away.

If you decide that you want to use additional witness statements or evidence at arbitration that you did not file and serve by the date set in the directions, your employer may object to you using this evidence. The Commission member hearing your case will then need to make a decision about whether you can use that evidence.

If the Commission member will not let you use your evidence, it is possible to ask for an adjournment to give the other side time to consider your evidence so that it can be used in your case. If the Commission member does not give you an adjournment you will have to continue your case without that evidence or settle your case with the other side.

What happens if your employer does not follow the directions?

If your employer does not follow the directions, the Commission may send them a notice telling them to attend a non-compliance hearing. This hearing may be done by video link or telephone.

At the non-compliance hearing your employer may be asked:

• to explain why they did not follow the directions
• when they can do the things in the directions.

If your employer does not follow the directions and later tries to use witness statements or other evidence at arbitration that it has not filed or served on you, it is possible to object to those documents being considered by the Commission. If you object, the Commission member hearing your case may decide that the witness statements or other evidence cannot be used. The Commission member can also decide to adjourn (postpone) your case to give you time to consider the documents.

An outline of submissions is a document that explains your case to your employer and to the Fair Work Commission (the Commission). It summarises the arguments and main points you will make at arbitration. 

You can help your case by making sure your outline of submissions is easy to read and understand. 

Plan what you want to say 

Think about what topics you want to cover. One good idea is to write a list of headings first so that you do not forget anything. 

Some issues you might want to cover are: 

• your employment (including how long you were employed and your title and duties) 
• how you were dismissed 
• what general protection you think your employer has breached 
• what evidence you plan to bring to the hearing 
• your response to any arguments made by your employer. 

Research 

You should refer to any sections of the Fair Work Act that deal with your claim. You could also include cases that you think support your application. For more information on how to find out about the Fair Work Act and other employment laws, see Ways to get help and  Finding employment law. 

Start with a heading 

The outline of submissions should start with a heading that gives the name of your matter and the matter number. You can find these on the top of your Notice of Listing for arbitration. 

For example: 

Atherton, Charlotte v Department Stores Pty Ltd 
Matter Number: U2011/00000 
Outline of Submissions 

Number paragraphs and pages 

Number each paragraph through the document starting at "1" for the first paragraph. It is important that you number the pages of your documents. This way you can quickly refer anyone to a particular section in your submissions. 

Get someone else to read it 

Get someone else to read over what you have written to look for errors, typos and make sure that everything is easy to understand. 

More help 

If you are unsure about what to put in your submissions or how to answer an issue raised by the employer, you should get legal advice. 

For more help on how to write documents, see Reading and writing legal documents in the 'Representing Myself' topic of this website. 

What is a witness statement?

A witness statement is a document that sets out what a witness says about your case. If you want to bring a witness to arbitration, you must file and serve (formally give the other side) a witness statement made by them by the deadline in the directions made by the Fair Work Commission (the Commission).

If you do not file and serve a witness statement in time, the Commission might not let that witness give evidence. You will need to prepare a witness statement for yourself and get one from each of your other witnesses.

Is there a form to use?

There is no standard form for a witness statement, but it should: 

• be on one side of A4 paper and be typed or neatly handwritten
• start with the full name, address and occupation of the person making the statement.
• have numbered paragraphs. Try and put one fact or idea in each paragraph.
• be signed on the last page by the person making the statement with the date next to their signature.

For example:

What should be in a witness statement  

Only include what you know

The statement should only include things that the person making the statement saw or heard or did. Don't include rumours or gossip.

You will need to prepare a witness statement for yourself and get one from each of your other witnesses.

Include the important information about your employment in your witness statement

In your statement, include all the important information about your employment like: 

• when you signed your employment contract
• when you started work and the position you started in
• what award or enterprise agreement you were employed under (if any)
• the date of any promotion and the name of your new position
• details of any change of duties
• details of any performance meetings or meetings about complaints
• when you were told you were dismissed, and what you were told about why you were being dismissed
• the date of your last day of work.

For more information on what evidence you might need to support your case, see Evidence - General protections dismissal . 

Include dates or date ranges

If you want to refer to a date but you are not sure when something happened, you can give a date range or say "on or about" a date.

For example:

Write down what people said

If you want to write down what someone said to you or things you said to someone else, you should put what was said in quotation marks.

For example:

​​If you cannot remember exactly what was said but you remember the gist of the words you can say:

Attaching documents

When you talk about a document in a witness statement you should attach a copy of that document to the end of the statement.

These documents are then called 'attachments'. You should label the top of the first page of each attachment with a letter. The first page of the first attachment would be labelled "A". The first page of the second attachment would be labelled "B".

In your statement you can refer to this document like this: 

More help

When you have prepared your witness statements, you should file and serve them. For information on how to file and serve a witness statement, see  Step by step guide – Preparing for arbitration

.

For more information about preparing legal documents and statements, see  Reading and writing legal documents.

Before you go to arbitration, you need to understand how it works and plan how you are going to present your case.

For more information see: 

Step by step guide – Presenting your case at arbitration. 

When will the Fair Work Commission (the Commission) make a decision?

After arbitration, the Commission member who heard your general protections dismissal case will make a decision.

The Commission member may reserve their decision. This means that a decision is not given on the day of the hearing. Instead, the Commission member may go away and think about the case and make a decision later. It may take several months for the Commission to make a decision about your case.

The Commission can make orders about whether your dismissal was in breach of a general protection (and what should be done if you were).  The orders made could include:

• an order that you be reinstated to your job
• an order that you are paid compensation.

The Commission will not make orders that the employer write you a reference or pay you other amounts of money they owe you. Orders are only about your dismissal. For more information about what to do if your employer hasn’t paid you your wages and entitlements, see Wages and entitlements. 

After the Commission member makes their decision, they will give you and your employer a written decision that gives reasons for the orders that they have decided to make. 

Will the Commission order costs?

In some cases, the Commission member will make an order that one party pay the other's legal costs of the case, but this is rare. For more information, see Costs, below.

Can I appeal?

If you lose the case, do not argue with the Commission member. It may be possible to appeal. For more information see Appeals,

Enforcing decisions

For more information about what happens after the case, including information about enforcing agreements, or orders, see Enforcing agreements and orders.

What are costs?

Costs are:

• lawyers fees, and
• the expenses involved in running a case, such as fees for subpoenas, witnesses, and getting copies of records and expert reports.

If someone wins a case, they may ask for an order that the other party pay their costs.

Does the Fair Work Commission (the Commission) order costs?

The Commission is a 'no costs jurisdiction'. This means that usually the Commission will not make orders about costs after conciliation or arbitration. Each party will have to pay their own legal costs and expenses. 
 
Although costs orders are rare, in some cases, the Commission will make orders about costs after arbitration.

When can the Commission order costs?

The Commission can order costs where someone went ahead with a case when it was clearly weak and they had no chance of winning.

If you can, you should get legal advice about the strength of your case.

If the employer tells you they are going to ask the Commission for a costs order, you should get legal advice.

The Commission can also make costs orders against lawyers and paid agents where the lawyer or agent encouraged their client to run a hopeless case or acted unreasonably.

Applying to be paid your costs

If you want to make an application to the Commission for the employer to pay your costs, you must fill out, file and serve Form F6 -Application for costs within 14 days from either:

• the date the case was decided
• the date the case was ended (discontinued).

You can get copies of the Application for Costs form (Form F6) from:

• the Fair Work Commission office in your capital city 
• the Fair Work Commission website, or
• the Fair Work Commission phone line on 1300 799 675.