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Providing Conciliation before the Fair Work Commission

Do you have a workplace matter that cannot be resolved by HR and is escalating?


As a qualified Lawyer, Therapist, Mediator and Conciliator, I have represented several for the positive outcome of compensation in the Fair Work Commission.


So, what is Conciliation before the Fair Work Commission?

PROVIDING MEDIATION AND CONCILIATION FOR EMPLOYEES AND EMPLOYERS

We provide information to help employees and employers know what to do at each step.

  • An employee is also called an 'applicant'

  • An employer is also called a 'respondent'

Together, they are the 'parties' in a case or matter.


FILLING OUT A FORM F2 FOR UNFAIR DISMISSALS

Before you start: Have this information ready before you begin Form F2. You may need to give us details including:

  • how long you worked for your employer

  • what type of employee you were (see Who the law protects from unfair dismissal)

  • why you believe the dismissal was 'harsh, unjust or unreasonable' (see What is unfair dismissal?).


Who can use a Form F2?

Only use this form if you:

  • have been dismissed and believe it was unfair AND

  • are eligible to make an unfair dismissal application.

An application for unfair dismissal is the start of a legal process.


Answer every question and tell us briefly what happened. If a question is not relevant, write ‘not relevant’ but do not leave it blank.


The Fair Work Commission will require dates, names and a small number of supporting documents in your application.


The process is easier if you gather these details before you start:

  • contact details for you

  • contact details for your lawyer or paid agent, if you have one

  • the legal name of your former employer, which may be on your payslip

  • contact details for someone at your former employer's workplace who we can send your application to

  • the dates you started work and finished work for the employer

  • the date your employer told you about your dismissal

  • the reasons your employer gave you for your dismissal, including supporting documents such as a copy of the email or letter that shows they dismissed you

  • the reasons (‘arguments’) you believe the dismissal was unfair

  • what result or outcome you want from the case.


PREPARING FOR A CONCILIATION

A conciliation is the first step in the unfair dismissal process, but it is voluntary. We organise a conciliation as soon as possible after we receive the application. It takes place usually between 2 and 5 weeks later.

The employer or employee can choose not to take part or tell us you no longer wish to participate.

We send both parties a date and time. Unless you ask us to change it, and we agree, you must take part. If you do not take part on the day, we will ask you for a reason. We use that reason to decide whether to:

     - set up a new date and time for the conciliation

       - refer the case to a hearing in front of a Commission Member.


The date and time may be changed if you have an important reason why you cannot take part. If you want to delay or change the conciliation, you must ask us for an adjournment.


If you Choose not to Take Part

As the conciliation process is voluntary, you can let us know if you don't want to take part. You can tell us at any time. If you can, tell us as soon as you make that decision and no later than the day before your conciliation.

We may contact you to discuss your decision and explain the next steps. Even if you don't take part in conciliation, the application doesn't stop. The case moves to a formal hearing, and you may lose the chance for a conciliation at a later stage.

If you are the employer and you have not yet given us your response, you will probably need to do that to prepare for any hearing.


Conciliation is not as Formal as a Hearing.

To help you avoid a formal hearing or conference, we set up a conciliation. A conciliator leads the discussion but does not give you legal advice, decide what happened or decide who is right or wrong. Read more about the role of a conciliator.

A conciliation is different from a hearing in several important ways:

  1. You discuss the unfair dismissal case in a less formal way with a conciliator over the phone, not in front of a Member.

  2. The conciliation takes about 90 minutes, but formal proceedings can last for up to a day and sometimes longer.

  3. You don’t need to prepare evidence or submissions for a conciliation, which can save you a lot of time and effort.

  4. The outcomes of a conciliation can be more flexible than a formal hearing or conference.

  5. We do not publish the binding decision about the case on the website if the parties settle at conciliation.


THE ROLE OF A CONCILIATOR

Conciliators are senior staff at the Commission who help employers and employees resolve disagreements.

Conciliators have training and experience in workplace relations and the law concerning dismissal. They are independent and neutral.Conciliators don't 'take sides'. Their role is to help the employer and employee resolve the dispute. They will discuss the important issues but their main focus is on helping both sides agree on a settlement. This can mean that conciliators need to move the conversation from 'what happened?' to 'how can you resolve this?'


The Conciliator's Job is to:

  • lead the discussion and guide the employer and the employee through the process

  • ensure conversations remain polite

  • guide the conversation if it is not helping reach an agreement

  • briefly explore and discuss the issues involved

  • help the employer and employee reach an agreement or resolution

  • challenge what the parties say, such as when it doesn't seem correct or relevant (we call this a 'reality test')

  • comment on possible outcomes.


The Conciliator Does Not:

  • give legal advice to either the employer or the employee

  • represent either side

  • favour one side over the other

  • decide what happened or judge the facts of the case

  • decide who is right or wrong

  • recommend an outcome.

If the employer and employee agree to settle their dispute, the case will end.


NOTICE OF DISCONTINUANCE

After you start a claim for unfair dismissal, you or your representative can stop the claim at any time.

This includes:

  • before we hold a conciliation discussion between you and your employer

  • after a conciliation with your employer

  • during a conference or hearing before a Member of the Commission

  • at any time after the hearing and before the Member issues a decision.

As soon as you tell us you want to withdraw your claim, it stops and we close your case. We do not publish a decision or order on our website if you stop ('discontinue') your claim before a Member decides whether your dismissal was unfair.


Reasons you may want to stop your ApplicationYou may withdraw your application for different reasons, such as:

  • you and the employer have settled the dispute

  • you have changed your mind and no longer want to make a claim

  • you want to submit a different claim, such as a general protections dismissal claim.


See section 588 of the Fair Work Act 2009.


When you decide to Withdraw the Application:

  1. Fill out and send us Form F50 – Notice of discontinuance or contact us by phone, email, letter, fax or in person to tell us you want to discontinue the case.

  2. Send a copy of this notice to the employer ('respondent'). If you do not, we will write to the employer to tell them that you have stopped your claim.


How this may affect a Claim in Future

If you still want to challenge your dismissal, you may be able to make a different application about the same dismissal. You can only do this:

  • after you stop your existing application using Form F50

  • before a Commission Member makes a decision about your unfair dismissal case

  • within 21 days of the date the dismissal took effect.


This new application could be:

  • an unfair dismissal application that is different from the one you stopped

  • an application for general protections dismissal (if you are eligible)

  • an application for help with unlawful termination (if you are eligible).


When you submit a new application, you must pay the fee or apply for a fee waiver.If you apply after the 21-day deadline, a Commission member may need to decide whether to give you more time to apply.


POSSIBLE OUTCOMES FROM A FAIR WORK COMMISSION CONCILIATION

If the Commission finds a dismissal was unfair (‘harsh, unjust or unreasonable’), it may order compensation. An employee can only receive compensation for lost income ('remuneration').An employee does not always receive compensation, even if the dismissal was unfair.Before we can order compensation, we must decide if the employer should give the employee their job back ('reinstatement').


Note: The Fair Work Commission cannot order compensation for reasons such as pain and suffering, shock, distress, hurt or humiliation.


COMPENSAITON SETTLEMENTS 

Median compensation for unfair dismissal

It is important to know that most employees only receive a small amount of compensation for unfair dismissal.

The median is between 6 – 8 weeks pay.

Less than 0.4% of applicants receive the maximum limit (the 'compensation cap') that the Commission can order an employer to pay.


The maximum the Commission can order is the lower of these 2 amounts:

  • half of the employee’s annual wage OR

  • the compensation cap, which is $79,250 for 2021-22 and changes on 1 July each year.


The Commission may reduce the amount of compensation if they find:

  • the employee did not suffer any financial loss from the dismissal

  • the employee deserves a lower amount because of bad behaviour ('misconduct').


The way we work out compensation is complex.

For full details of what we must consider, see The formula to work out compensation.


This considers the rules in section 392 of the Fair Work Act 2009.


REINSTATEMENT

Reinstatement is the primary remedy in unfair dismissal cases.


When a Commission Member decides a dismissal is unfair they will see if reinstating the employee is appropriate. When reinstatement is not appropriate, other remedies will be looked at. This includes compensation. It is rare that the Commission decides that the employer must give the employee their job back.


Conditions the employer must meet

If the Fair Work Commission decide reinstatement is suitable, the employer must follow some rules. They must restore the employee's job to what it was before the dismissal.


This means the position has the same pay, benefits and working conditions. It does not have to be the same position but the terms and conditions cannot be worse than the previous job.


Section 391(1)(b) of the Fair Work Act 2009.


The Fair Work Commission may order the employer to give the employee their job back, even if the employer:

  • still has a negative view of the employee’s actions after the legal decision

  • is embarrassed because they thought an employee was guilty of something

  • made the employee redundant, but it was not genuine.


Reasons reinstatement may not be possible

The Commission Member considers all factors before deciding on this option.

They may not order it if:

  • the business no longer operates

  • the employee cannot work because of illness or injury

  • the position does not exist anymore

  • the employer and employee can't work together because of their relationship

  • the employer would probably dismiss the employee again.

For further information, contact the Fair Work Commission


Every case is different.


The outcome of one case does not guarantee the same outcome for another.


Whether you are an employee or employer, for further assistance, contact Andrea Consults





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