Determinative conferences and hearings are legal processes.
They rely on applicants and respondents presenting their evidence and arguments,
before a Commission Member can make a binding decision
about whether a dismissal was fair or unfair.
Your evidence and arguments must first be presented in written form.
The Commission has templates to help you prepare these documents.
These documents must be completed well in advance of the hearing or conference.
Very important to have filed those on time because the tribunal Member will have had
an opportunity to read them before coming in to the determinative conference
and so has an idea then about 'well what are the real issues in dispute?'
What are the matters that the tribunal Member needs to decide upon?
You will also have the opportunity to tell the Commission Member about your evidence
and arguments at your conference or hearing.
So don't worry if you find writing your documents difficult.
Just complete them as best you can.
There are three important documents that should be completed
before a determinative conference or hearing.
The former employee, called the applicant, and their former employer, called the respondent,
both complete these forms.
The forms are a document list, statements of evidence sometimes referred to as witness
statements and an outline of arguments, about the merits of your case.
Templates for these documents will be sent to you by the Commission, or you can download
them from our website.
The document list is an important summary of all of the documents you will be presenting
and relying on for your case.
This could include an employment contract, emails, medical certificates, warning letters,
pay-slips or any other documents that support your argument.
This list helps organise everything so nothing is overlooked.
A statement of evidence is required from every person who wants to tell the Commission about
something that happened.
People often call these witness statements.
The dismissed worker and their former employer should always provide a statement of evidence.
But often, there will be other witnesses who also wish to give evidence.
They must also prepare their own statement of evidence.
What we want to know is what happened.
We want to know what they saw.
We want to know what they heard.
So it's very important, both in their written statement and also in their oral evidence,
that they talk about only their own experience, of what they saw, of what they heard.
Statements can be written in long-hand paragraphs, or as a bullet-point list.
Numbering each paragraph or point in the statement can make it easier for everyone to locate
information during the hearing or conference.
Witnesses who provide statements must attend the determinative conference or hearing so
that their evidence can be tested through questioning and cross-examination.
If they don't attend the Commission and they don't provide the other side with an opportunity
to put contrary allegations to them, or to test their evidence,
that's unfair on the person against who the allegation is being made.
And so in those circumstances, more often than not, we cannot rely on the evidence.
In your outline of arguments - merits, you set out all the facts you think the Commission
Member needs to decide if the dismissal was fair or unfair.
The form provides guides on what information you should consider in each section.
There is more information on our website if you need further help completing this document.
You will need to include employment details including pay, information about any misconduct
or work performance issues, details about the dismissal, including how and why it happened.
And the applicant, who is the dismissed worker,
should identify the 'remedy' they are seeking from the Commission.
If a dismissal is found to be fair, the application is dismissed and the matter is over.
But if the dismissal is found to be unfair, the Commission can issue orders for a remedy.
Under the Fair Work Act, the Commission can order two remedies.
First, it can order that a dismissed worker be reinstated to their job, if appropriate.
The second remedy is payment of compensation.
Compensation is capped by the Fair Work Act.
More information about compensation can be found on the Commission's website.
There is a final document that will only be necessary in some instances.
It's called the Outline of arguments - objections.
It's only required when the former employer is raising an objection to the Commission
dealing with the matter, because it is outside the Commission's jurisdiction
If that's happened both parties must lodge an outline of why they believe the objection
should, or should not, be upheld.
Some jurisdictional objections are dealt with before the Commission considers whether the
dismissal was fair or unfair.
But other jurisdictional objections are dealt with at the same time as the determinative
conference or hearing to hear the substantive matter - that is, why the parties believe
the dismissal was fair or unfair.
For more information about jurisdictional objections follow the links on the page you
are on now.
Once complete, copies of your documents must be provided to the Commission and the other party.
This has to be done well in advance of your matter being heard.
You should also bring all of the documents with you, including copies for the Member
and the other side, when you come to your hearing or determinative conference.
For more information on preparing for hearings and conferences,
follow the link on the page you are on now.