A conference or hearing is where the evidence about a dismissal is examined.
Each side must prepare a case which includes written witness statements and an outline
of submissions. And if the parties are unrepresented they must argue the case themselves.
A hearing is a formal legal process. While a conference is less formal and more interactive
both can be confusing for employees and employers.
This video will help you prepare for a conference or hearing.
We'll explain the paperwork you're required to submit before your conference or hearings
takes place. Then we'll examine the differences between a hearing and a conference. Finally,
we will look at the outcomes you can expect from this process.
But first, let's quickly look inside the hearing room. You should arrive early - before your
hearing is scheduled to start. Once a person comes into the hearing room they should make
themselves known to the Associate and the Associate will write down their names and
who they are for the member.
The Associate is the assistant to the Member who conducts the hearing and decides the case.
You should watch the seperate videos "Who's inside a a hearing room?" for a complete explanation
of who is who, where to sit and what happens in a hearing.
Before you get to the hearing room you have to prepare the required written documents.
All the evidence that the parties want to rely on at the hearing needs to be provided
in writing so that includes an outline of submissions, any witness statements from any
relevant parties and any other documentary material.
Witness statements are considered evidence. They are first hand descriptions of what occurred
and one is needed for each person giving evidence. This includes you, whether you are the employee
or the employer. So everyone will have at least one witness statement while some people
may have many.
Anybody with anything relevant to the matter with anything to say can put it a witness
statement. It's just anything that was seen, heard, said or any point of view on any relevant
topic.
Anyone giving a witness statement is required to attend the conference or hearing as they
need to give sworn evidence and be cross examined. If a witness is not there evidence may not
be allowed or it may not be given as much importance.
There is an interactive form on our website to help you prepare witness statements.
The other important document to prepare is a outline of submissions. An outline of submissions
is basically a document just outlining either why or why not somebody was unfairly dismissed
and just why the tribunal should find in the party's favour.
The outline of submissions is different to the evidence of a witness. It should not repeat
what is said in the witness statements. It sets out the argument about why the dismissal
was or wasn't unfair. Both the employee and the employer need to do an outline of submissions
explaining why they think their case should succeed.
You may also need to lodge other documents to support your case, like pay-slips, dismissal
letters, emails or other relevant materials. These should be numbered for easy reference.
It's very important that all of your witness statements, submissions and documents be sent
to the Commission and the other party. You'll receive directions from the Commission detailing
the dates by which your documents must be lodged and its important that you comply with
those lodgement dates.
Those preparations mean that at the conference or hearing the evidence and submissions can
be considered and witnesses can be questioned and cross examined. If you need an interpreter
for the conference or hearing please let us know in advance. We will arrange that without
any cost to you.
Hearings are public events that anyone can attend. But an unfair dismissal claim may
be heard in a conference which is closed to the public.
In a conference the door will be closed, showing it is private.Sometimes a conference may be
may be moved to a conference room instead of using a hearing room. Conferences tend
to follow a less formal process. the Member may even sit at the bar table with the parties.
In a conference evidence may be given from the bar table instead of using the witness
box. To allow that to happen the employer and employee will be sworn in at the start
of the conference.
The Member's decision is not affected by whether you have a hearing or a conference - neither
method gives either party any advantage or disadvantage.
When the hearing is over the member will make a decision about whether the dismissal was
unjust or unfair but usually that decision won't be made on the spot. Most commonly a
decision will be reserved, which means it will be issued at a later time.
You may be called back to hear the decision or it may only be published on our website
for you to read.
There are only three possible outcomes from a hearing or conference.
If the dismissal was found to be fair the application is dismissed. If the Commission
finds the dismissal was unfair it can order the employee to be reinstated to their job
or appointed to another job on terms and conditions that are no less favourable. The Commission
can also order payment of compensation to the employee. reinstatement and compensation
are both called remedies.
It is impossible to predict how much compensation could be awarded.Each case has unique features
which play a big role in the final calculation. The Fair Work Act details how the Commission
should determine compensation. It sets a maximum amount equal to 26 weeks pay or half of the
high-income threshold - whichever is the lesser amount.
But that maximum payment is not common as the Act requires a number of issues to be
considered. For each and every case the Commission must take into account the length of service,
the amount the employee would have earned had they not been dismissed, what steps the
employee has taken to find new work, how much income the employee has earned since being
dismissed, whether any misconduct was involved and the impact of compensation on the employer's
business.
There is a link to information about outcomes under the dismissals tab on our website. There
are also a number of fact sheets and guides about conferences and hearings that can help
you if you still have questions about these processes.