There are several ways for an employer and employee to resolve a disputed dismissal including participating in a Fair Work Commission (FWC) Conciliation Conference (a Conciliation) and entering a settlement agreement with the other party.
If, you have decided to participate in a Conciliation, what should you be thinking about?
What is a FWC Conciliation Conference?
In cases of claims of unfair dismissal and general protections claims involving dismissal, the parties will be given the opportunity of resolving the dispute via Conciliation.
The purpose of a Conciliation is to give the employer and employee a chance to negotiate and explore different settlement options, often on a commercial basis, without proceeding to court. Any outcomes are possible provided both parties agree to it, unlike a formal hearing, where the law controls and limits the outcomes.
There is no requirement for a party to be represented by a lawyer at the Conciliation, if a party wishes they may appear on their own behalf or be represented by a union official, industry body official or even a friend. The option to bring a support person is also available.
Preparation
While claims of this nature are often highly emotional, it is important to remember that these matters, if not resolved early, can be extremely costly and time consuming for both parties if they drag on, and it may be best for everyone if an agreement can be reached. As such, each party should seriously think about what their minimum desired outcome is in relation to the negotiations and attend with an open mind about settling. If one party attends the Conciliation with no intention to resolve the matter, the Conciliation process will ultimately be a waste of time.
Once you have established your bottom line, whether it be monetary compensation, reinstatement, an apology, a reference etc., we recommend preparing a statement summarising your position regarding the matter. The stronger this statement is, the stronger your bargaining power will be when commencing negotiations. If you are the applicant in a claim, you might consider providing a personal statement in addition to your position summary, outlining the personal effect that the termination has had.
Format of the Conciliation
The FWC will usually allocate between one and a half to two hours to the Conciliation. It is an informal process and will often be conducted online. The way the Conciliation is run depends on the Conciliator. However, you should be prepared for questions from the Conciliator who will ‘test’ the legal position and factual chronology of each party.
The structure of the Conciliation will usually be as follows:
- The applicant will set out their position and preferred settlement.
- The respondent will then set out their position and counteroffer.
- An opportunity will be provided to the applicant to respond (although optional).
- The parties will be split into separate virtual meeting rooms to enable the Conciliator to speak privately to each party.
- In these meeting rooms the Conciliator will help the parties to reach agreement by identifying common ground, suggesting options, and helping the parties draft an agreement in writing.
- The Conciliator will move between rooms sharing the proposals and counterproposals between the two sides.
- If the parties reach agreement, the conciliator will summarise the terms of settlement and offer the parties a ‘settlement deed’.
- Once the settlement deed is executed by each party, the matter will be concluded. Unrepresented parties are usually offered a 3-day cooling off period following Conciliation to decide if they wish to opt out of any agreed settlement.
What happens if negotiations aren’t successful?
The sole purpose of the Conciliation is to determine if a matter can be resolved via negotiation at an early stage or if it will be necessary to continue the matter further. The parties are under no obligation to reach a settlement.
If the Conciliation is unsuccessful, the Conciliator will either note that the matter is proceeding to a FWC Hearing (in cases of an unfair dismissal) or issue a certificate stating that the Conciliation was unsuccessful (in cases of a general protections claim).
If the applicant is undertaking a general protections claim, they must apply to either the Federal Court or FCFCOA within 14 days of receiving the certificate.
How we can help
Before we tell you how we can help, there is one practical thing you can do to help yourself – stay off social media. Do not post anything about your claim on your social media accounts or make public comments or post photographs of you engaged in any activity that will harm your claim.
JFMAndreyev has represented both employers and employees successfully in Conciliation conferences. We can help you prepare your bottom line and your position statement and help you make and assess proposals and counterproposals. If you require any advice about an upcoming Conciliation conference, please contact JFMAndreyev Lawyers on (02) 9199 8597 or email us to speak to one of our qualified and helpful people.
The information contained in this post is current at the date of editing – 9 April 2024.
