Big news in cricket over night: Mickey Arthur has filled a Statement of Claim with the Fair Work Commission claiming, it would seem, damages for unfair dismissal. The claims made, if they are true, are scandalous and allege that Mickey Arthur was racially discriminated against among other things.
It is important here to forget the more salacious details (again alleged but not yet actually proven) of the statement of claim. The fact that an allegation is made in civil proceedings does not mean it is true: all it means is that the particular alleged at some point will need to be proven by its proponent.
It is striking that Mickey Arthur has bemoaned that he has tried to keep his claim confidential BUT others have not given him the courtesy of doing so. Either he is poorly advised or naive however documents such as a statement of claim are public documents. To think that they would not be disclosed is just ridiculous and smacks of someone who was not prepared for what might follow from making a claim.
Obviously, not every employee who makes a claim to the Fair Work Commission has the circumstances of their departure from their job but, then again, not every employee has already has the circumstances of their departure publicised for all to see.
So now that Mickey Arthur’s statement of claim has been filed: what are the next steps? As I have written before: this is not like the legal shows you see on TV where the claim is made on Monday and you are in a trial on Friday. It just doesn’t happen that way!
The Fair Work Commission website (www.fwc.gov.au) provides a great overview for the steps in an unfair dismissal claim. Those key steps are:
1. Employee sends an unfair dismissal application to the Commission.
2. The Commission sends a copy of the application to the employer.
3. The Commission sends the employee and employer a written notice with the date and time of their conciliation.
4. The employer is required to respond to the application and submit any jurisdictional objections, and send their response and jurisdictional objections to the employee and to the Commission
5. Conciliation takes place with a Commission conciliator (usually by telephone) to try to resolve the matter
6. If unresolved at conciliation, the application will be determined by a member of the Commission at a formal conference or hearing.
7. Whether a formal conference or hearing takes place depends on the nature of the claim and whether there are any questions of law to be determined.
Obviously a former employer can object to an unfair dismissal claim on various basses. They are:
1. the applicant was not unfairly dismissed;
2. the application was lodged with the Commission outside of the prescribed time limits;
3. the applicant is not covered by the unfair dismissal laws or is not eligible to make an application; and
4. the application is frivolous, vexatious or has no reasonable prospects of success.
The remedies that might be available to Mickey Arthur if he is successful are reinstatement or compensation. We all know that reinstatement is not going to happen so compensation is path that Arthur has gone down.
It is impossible to assess whether Mickey Arthur was unfair dismissed at this point and whether the allegations he has made will ultimately be determined to be true. Now that a statement of claim has been made it is incumbent on the parties to take steps to resolve the dispute. Whilst it will not happen: it is also incumbent on the press to report the full facts rather than the sensationalist reporting we have seen to date.
Only time will tell how this matter will resolve and who will come out on top: after all, in every litigious matter there is always a winner and a loser.