Having a hearing is not always the best way to resolve an unfair dismissal claim.
Hearings and conferences are formal, legal processes.
You have less control over the outcome.
And they can cost you a lot of time and effort in preparation and attendance.
That’s why the Fair Work Commission offers conciliations as the first step in resolving
unfair dismissal disputes.
People can negotiate any way they like.
And I think, because it is informal, it probably does make them feel more able to do that.
This video will explain what a conciliation is and how they are conducted, so that you
can be prepared to achieve the best possible outcome.
A conciliation is not a legal process.
It is more like a meeting, that is conducted in a telephone conference call.
The conciliator is an independent, impartial person who runs the conversation between the
employee and employer.
They are a bit like an umpire who ensures fair play.
The point of the conciliation is to see if both sides can come to an agreed settlement
without needing to go to a conference or hearing.
You are under no obligation to settle if you don’t want to.
It is your right to maintain your position and proceed to a hearing.
Conciliations are confidential.
You shouldn’t disclose things that are said by other people in the conciliation.
While you can choose not to participate, it is in your interests to give it a try as most
cases do settle at this stage.
I understand it’s four out of five, overall, at conciliation either on the day of conciliation
or perhaps a couple of days after because we do give people the opportunity if they
are unrepresented to think about offers or counter offers and also get some advice if
they wish to.
In a conference or hearing the possible outcomes are very limited and strictly controlled by
the law.
But conciliations give you a lot of flexibility in what outcomes you can achieve.
In a conciliation absolutely any outcome is possible ‐ provided both parties agree to
it.
Often at conciliation, resignation at the date of termination is negotiated, and a statement
of service, sometimes a reference, an employment separation certificate for Centrelink – often
that hasn’t been provided, a final payslip for instance.
So ‐ this is how a conciliation works.
The conciliator runs it by phone from their office.
Everyone involved has the employee’s application and employer’s response, so everyone knows
what each side is arguing.
However, it’s not the Conciliator’s job to try to judge those arguments.
That only happens at a conference or hearing.
The conciliator is there to explore with both sides if an agreed settlement can be reached.
First, they get the employee, the employer and any representatives or support people
all on the same telephone conference call.
“Natalie – are you there?
Hello – this is Natalie And Jon – I’ve got you now?
Good morning, Jon speaking.
I’ve got you together – thank you.
This conference call can take up to one and half hours.
It’s important that you set aside that time in a quiet place where you have privacy and
won’t be disturbed.
Employers are usually in their office or business, while employees will often take the call from
home.
He just told me that I wasn’t up to scratch and basically said pack up your stuff and
get out.
Each side gets to put their position to the other.
Often, this can be the first time the parties have really spoken about the dismissal.
She came in late all the time and went home early and had too long a lunch break so I
just had to let her go in the end.
Often, people are apprehensive about these discussions.
But the conciliator is there to ensure they remain polite and on on‐topic.
We listen to both sides, we are not in a decision making role.
We’re not in the role of hearing evidence or determining evidence and where there are
disputes on the facts we just say “look, these are disputes on the facts’.
Natalie, I will have the private session with you now if that’s okay with you Jon – could
you hang up?
So Natalie, I’d like to ask you what you’d like to say and I’d also like to ask you
what you hope to achieve out of today?
What I’d like to get is my job back but if that can’t happen I guess we can negotiate
some compensation.
Both sides need to come to the conciliation with a clear idea of the outcomes they want
to achieve or are prepared to accept.
Thanks Natalie.
So I’m going to ask you to hang up and I’m going to speak to Jon and have a private conversation
with him and put your offer at the end of that then get his response and then call you
back after that.
Good morning Jon speaking.
so Jon, I’m coming now to what Natalie is actually seeking out of the application to
settle the matter … The conciliator explains what the other side
wants and asks if it is acceptable.
No, I can’t accept that offer.
But I will be able to offer you perhaps two weeks salary ...
Eventually everyone comes back together after the conciliator has relayed the offers and
counter offers between the parties.
If a settlement has been reached it will usually be set out in a written agreement which both
parties will sign.
Unrepresented parties are offered a three day cooling off period to decide if they wish
to opt out of any agreement.
If no agreement can be reached the conciliation stage is over and the matter proceeds to a
conference or hearing.
It’s the role of the conciliator to refer the matter to arbitration – to refer the
matter to the team which deals with that stage to obtain written submissions and witness
statements.
We have a separate video on conferences and hearings that tells you how those processes
work.