Unfair dismissal next step: conciliation

by Oct 9, 2021All Posts, Human Resources

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.

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