Carrying on he HR Highlight Series on Unfair Dismissal, this week in Part 5, we will explore the, thankfully, rare process of preparing for a Hearing that occurs if a Settlement is not reached at either the Conciliation Conference or out of session, and the Matter is proceeding to Hearing.
Unfair Dismissal Process Review
As outlined earlier in the series on HR Highlights on Unfair Dismissal, Part 1: A Fair Dismissal (procedural fairness) https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-1-what-does-fair-dismissal-look-like/ and Part 2: Claim of Unfairness (responding to a claim) https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-2-claim-of-unfairness/, when an employee believes that the end of the employment relationship was unfair they have the right to lodge an unfair dismissal claim.
As explored in Part 3: The Conciliation Conference https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-3-the-conciliation-conference/ when a claim is received the Conciliation Conference is touted as the last point at which the parties can come to an agreed Settlement before the matter is passed to a Hearing and a Commissioner will make a decision and someone will be at fault. Conciliation Conferences will either result in a Settlement or in a continuing dispute…one that is on its way to a Hearing.
As covered in Part 4: After Conciliation https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-4-after-conciliation/ there are two pathways after Concilliation; one if there is a Settlement, the other if there is no Settlement.
This weeks installment will focus on what the business should do if there is no Settlement and there is no prospect of an out of session Settlement.
No Settlement…what now?
As covered in Part 3, if the parties can not come to an agreement on a settlement, then the Conciliator requests information on “preferences” for a Hearing and goes onto have the matter Listed before the Commission.
As outlined in Part 4, the next stage is to await the Listing or Mention, and explore the options of an out of session Settlement.
If there is no prospect of a Settlement then the business needs to prepare for the Hearing;
1. Seek counsel?
- Hearings in the Commission are supposed to be able to be attended and represented by the business and employee without lawyers getting involved, but the reality is that if there is a Jurisdictional Objection to explore, or even if the Matter includes contested facts (the old he said she said) then it will be necessary for the business to seek legal advice.
- If the business wants a lawyer to represent them they will need to apply for permission to be represented. This same rule applies for the Employee as well. The exception is if the business or employee are represented by their Employee/er Organisation. For employees this would be their Union, for businesses it will be their Association (though only Registered Employer Organisations qualify). All other representatives and paid agents or lawyers will need permission to “appear” or represent the business or employee as part of the proceedings.
- Businesses and employees are allowed to seek advice and assistance with preparing the detailed papers that have to be submitted prior to the Hearing however, and permission is not needed for this.
2. Draft the Papers
- The Notice of Listing will include detailed information of what Papers will need to be produced and circulated to the Commission and the employee/business before the Hearing.
- Usually this includes; an Outline of Argument (what is the case you are making for either fairness or unfairness, and what cases, sections of law are you using to make your case); Witness Statements (written statement of witnesses that will be present at the Hearing to answer questions) and Other Evidence (that can include CCTV footage, policies, warning letters etc)
- This process of drafting the Papers can commence as soon as the Hearing is Listed
3. Finalise the Papers
- If the Employee is Listed in the Notice of Listing to provide their Papers first, then the Employee Papers should be reviewed and any issues, contentions or allegations raised should be either addressed in the Businesses Papers or should be prepared to be addressed in the Hearing.
- Once the Business Papers are updated to reflect any new items raised in the Employee Papers they will need to be Lodged. The Papers need to be Lodged with the Commission, with the Employee and with the Employees Representative (if they have one). The Business Papers must be Lodged before the deadline that is outlined in the Notice of Listing.
4. Prepare Examination and Cross Examination Questions and Answers
- At the Hearing the Business will be allowed to ask its own witnesses questions to draw out their side of the story – Examination Questions. The Employee will also be able to ask the Business witnesses questions in an effort to clarify or even “trip up” the witness – Cross Examination. Similarly the Business will be able to Cross Examine the Employees witnesses.
- The Commission may also ask questions as part of the process.
- In preparing for the Hearing the Business should have a clear understanding of the questions they will ask their own, and the Employees witnesses, as well as work on anticipating the questions that the Employee will ask.
- Some time and effort should be taken to ensure that witnesses and business representatives understand the process of the Commission (the Notice of Listing will have links to great video resources to achieve this).
Next Up: Unfair Dismissal Stats
This Series is coming to an end, but next week we will explore the actual statistics behind Unfair Dismissal, how many are lodged, how many make it to Hearing and what are the average Settlements and key findings at each stage.
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Elisha Radwanowski BCom(HRM&IR)
Executive Manager for Employment and Training