Unfair dismissal next step: conciliation

by Adrian ClarkOct 9, 2021Human Resources, View All

Workplace investigations are a vital part of maintaining the integrity and fairness of any organisation. When issues arise, it’s important for businesses to act quickly, ensuring that they address concerns in a transparent and lawful manner. Different types of investigations are needed for different situations, each requiring a tailored approach to ensure fair outcomes for all involved. Below are some of the most common types of workplace investigations and when they should be used.

Misconduct Investigations
Misconduct investigations are necessary when an employee breaches company policies or behaves inappropriately. This might include theft, dishonesty, substance abuse in the workplace, or breaches of confidentiality. Misconduct can also cover actions that damage the company’s reputation or relationships with clients. It’s important to act quickly when dealing with misconduct to maintain workplace standards and protect the business from potential legal liabilities.

Harassment and Bullying Investigations
Investigations into harassment and bullying are crucial when employees report or experience inappropriate behaviour. Whether the issue is sexual harassment, racial harassment, or bullying, businesses have a duty to investigate and take action. These investigations must be handled with care, ensuring that both the complainant and the accused are treated fairly, and that the process remains confidential. Addressing such issues promptly not only protects employee wellbeing but also helps to maintain a respectful workplace culture.

Discrimination Investigations
Discrimination investigations come into play when employees feel they’ve been treated unfairly due to attributes such as race, gender, age, disability, or sexual orientation. These cases can be complex and require careful handling to ensure compliance with anti-discrimination laws in Australia. A thorough investigation is essential to ensure that all claims are properly examined, protecting the organisation from legal action and fostering an inclusive workplace.

Health and Safety Investigations
When a workplace incident or a near-miss occurs, a health and safety investigation is needed. These investigations help to determine whether existing safety measures were followed and if further action is required to prevent future incidents. Compliance with workplace health and safety laws is essential in Australia, and these investigations ensure that businesses fulfil their obligations to protect their employees.

Workplace Culture Investigations
In some cases, broader concerns about workplace culture may require investigation. This can occur when there are ongoing issues affecting morale, such as repeated complaints about management or widespread dissatisfaction among staff. A culture investigation looks at systemic issues within the workplace and seeks to identify patterns that may be harming the work environment. These investigations provide valuable insights for leadership teams to implement lasting positive change.

How AHR Can Assist with Workplace Investigations
Conducting a workplace investigation requires impartiality, expertise, and a thorough understanding of Australian workplace laws. At Assurance HR (AHR), we specialise in handling workplace investigations with a high degree of professionalism and confidentiality. Whether you’re facing allegations of misconduct, bullying, discrimination, or safety breaches, AHR has the expertise to guide your organisation through the investigation process.

Our team works with you to ensure that every step of the investigation is conducted lawfully and fairly. We help gather evidence, interview witnesses, and provide detailed reports on our findings, making sure you have all the information needed to resolve the issue. By choosing AHR, you can focus on your business while we take care of the complexities involved in workplace investigations, ensuring you remain compliant and maintain a positive work environment. Let AHR be your trusted partner in managing workplace investigations with confidence and care.

Next Step

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If an unfair dismissal claim is lodged against you as an employer, the next step is for you to respond to the claim. You’ll be sent a copy of the claim in writing, and you’ll have an opportunity to present your side of the story, also in writing. Your written submission as well as the employee’s application, will both be discussed at a conciliation.

Your response can also be in the form of an objection to the claim, if:

the application was lodged with the Commission outside of the prescribed time limits
the applicant is not covered by the unfair dismissal protection or is not eligible to make an application
the application is frivolous, vexatious or has no reasonable prospects of success.

What is conciliation?

Conciliation is defined as “the action of mediating between two disputing people or groups.” This is a voluntary process—you don’t have to do this if you choose not to—but it’s a simpler and less formal step before a full hearing, and in a large number of cases a conciliation resolves the issue, saving them time and cost of a full hearing.

What happens at a conciliation?

Conciliation meetings happen over the telephone, facilitated by a representative of the Fair Work Commission. This person will not take either side but mediate the conversation so it’s fair, and everyone gets their chance to have a say. Conversations are informal, private and confidential. Each party is free to negotiate in an informal manner and explore options around an agreed settlement. Unlike a hearing, which is an official legal proceeding, the conversation can cover anything, and any outcome is possible if both parties agree to it.

The style of each conciliator may vary but, in general, a conciliation will include the following steps:

the conciliator explains their role and the manner in which the conciliation is to be run
each side briefly outlines their story including what happened, any relevant facts and what they want
the conciliator may allow or ask questions
the circumstances, and any issues arising, are discussed. The conciliator may wish to discuss the issues with each party privately, and if this is the case they’ll disconnect the other party and call them back later.
the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and helping the parties draft an agreement in writing.

After the private discussions, all the parties come back together on a joint conference call. If an agreed settlement has been reached the conciliator will confirm the details with the parties. If no agreement has been reached the conciliator will explain the next steps in the process, which is going to a formal proceeding, either a determinative conference (a private conference with no members of the public allowed) or a more formal hearing.

Conciliation can be a stressful and challenging time. Our team has many years of experience in situations like this. Call Assurance HR today on 1800 577 515 for advice.