Ending an employment relationship via a dismissal, is a nerve wracking time for a business, even when there is clear cause, and businesses are rightly concerned about “getting it right”. For most small and medium fuel businesses receiving an unfair dismissal claim is a thankfully rare occurrence, but remains a constant concern. Understanding what a fair dismissal process looks like is vital to ensuring compliance and protecting against claims. Despite best efforts however, unfair dismissal claims will be made, so it is important that the business have a clear understanding of what the process is and how to respond within the formal and exacting framework and timelines. This HR Highlight Series is a deep dive into dismissing an employee, and the process that is triggered if the employee puts in a claim for unfair dismissal.
Building on the Series on Unfair Dismissal that commenced with Procedural Fairness in Part 1 and then and the Response to a Claim in Part 2. In this instalment we will explore the Conciliation Conference, the point in the unfair dismissal claim process that comes after the lodgement of the formal written response, and before a formal Hearing before the Fair Work Commission. The Conciliation Conference is a 90 minute telephone call facilitated by a conciliator and is the last chance for the business and employee to come to an agreement on a no-fault-settlement before the formal legal process of a Hearing determines winners and looses.
Unfair Dismissal Process Review
As outlined earlier in the Series when an employee believes that the end of the employment relationship was unfair they have the right to lodge an unfair dismissal claim.
Once a claim is lodged the business must engage with the process until the claim is either withdrawn by the employee, a settlement is reached or a Determination is handed down by the Fair Work Commission.
Purpose of Conciliation Conference
The Conciliation Conference brings the parties, the employee and employer, together, with the aim of reaching a settlement on the unfair dismissal claim BEFORE it reaches a Hearing at the Commission.
The Conciliation Conference is moderated by an impartial Conciliator, employed by the Fair Work Commission with the express purpose and goal of helping both parties understand the difficulties that they may face if they do not reach a settlement at this stage.
The Conciliator’s role is to facilitate discussion of the claim and help the parties explore the claim and potential settlement options.
The Conciliator cannot and will not provide legal advice, does not keep notes of the meeting, does not make a recommendation to the Commission, cannot and will not make a judgement or decision on the merits of the claim.
Conciliation Conference Process
The Conciliation Conference is typically held as a teleconference with a standard of 90 minutes allocated. The Conciliator will bring all parties onto the line and clarify the process and ground rules.
- Ground Rules;
- Attendees – Only the persons that were listed as attending the Conciliation Conference in the Form F2 and F3 Response are to be on the line – no one else should be in the room without first seeking permission
- Privacy and Confidentiality – The Conciliation Conference is private and must not be recorded
- Respect – Only one person speaks at a time, there is to be no interjecting or commenting while it is the other parties turn to speak, typically first names are used
- Conciliator Introduction – who, why, how, ground rules and the role of the Conciliator. During the Introduction the Conciliator will specifically state that the aim of the conference is not to convince the Conciliator of any one parties point of view, that there is no winner and no decision made at the Conciliation Conference. During the Introduction the Conciliator will stress the importance of the parties working to achieve a settlement at this point, while they can determine the outcome, because if the claim proceeds past this point a Commissioner will make a Determination and at that point there will be a winner and a loser.
- Opening Statements – the Employee, who is called the Applicant – will have the opportunity to outline the reason they think the dismissal was unfair. While the Applicant is speaking no one else speaks. After the Applicant has finished the Conciliator may ask some questions, or may go straight to asking the business to give their opening statement. Again while the business, who is called the Respondent, is speaking, no one else speaks. Again after the Respondent has finished their opening statement the Conciliator may ask questions. The Applicant will typically be given an opportunity to respond to the Respondents opening statements, and depending on what was raised in questions, the Respondent may also be given another chance to respond.
- Private Sessions – After the Opening Statements the Conciliator will typically go to Private Session, starting with the Applicant. Private Session is where the Conciliator and the Applicant discuss the claim and potential points or contention or concern and potential settlement offers privately – with the Respondent either on hold or asked to leave the teleconference. The Conciliator then goes into Private Session with the Respondent and explores points of contention or concern and puts forward and settlement offers the Applicant proposed. The Private Sessions continue in this manner until there is either a settlement agreed or an impasse.
- Closing of Conference – the Closing of the Conference will differ depending on the outcome and on the parties, but typically the parties are brought together and the Conciliator outlines the outcome and next steps and then closes the conference.
If there is a settlement reached in the Conference the Conciliator will offer to issue the standard Fair Work Commission Deed or Terms of Settlement, which is a legal document that outlines the agreement.
All settlements reached at Conciliation Conference stage are “no fault” which means that just because there is a settlement does not mean that the business did anything wrong, or accepts any liability.
The Deed also covers confidentiality and mutual non disparagement clauses. Once signed and the settlement provided, the Applicant will lodge a Form 51 Notice of Discontinuance to withdraw the claim.
If the parties cannot come to an agreement on a settlement, then the Conciliator will request information on “preferences” for a Hearing.
A Hearing will be held in the Commission Hearing Rooms or a regional court house or other venue. Once set, the dates for a Hearing are difficult to change.
When preparing for a Conciliation Conference, to be ready to answer the question of “preferences” the business should have ready;
- The number of witnesses it would be calling (this can be changed later but an indication is required)
- The number of days required (as an indication 4 witnessed on each side is likely to take 3 days)
- The days that the business is not available to attend a Hearing (in the next 3 months)
After gathering the Applicant and Respondent “preferences” the Conciliator will provide them to the Fair Work Commission, who will issue a Notice of Listing outlining the Hearing Dates and submission requirements. Typically it takes approximately a week to receive the Notice of Listing for the Hearing.
Learnings from Conciliation Conferences
ACAPMA assists members in many Conciliation Conferences and can provide the following learnings;
- Ensure the person on the Conciliation Conference for the business is empowered to make decisions on settlements
- Remain calm and polite throughout, even if the Applicant says something you strongly disagree with or is false, do not speak over them, await your turn to speak and when you address it do so politely and professionally – don’t say “that is a lie” or “that didn’t happen”, say “the evidence does not agree with the Applicants version of events”
- Always refer to the employee as the Applicant, and if the employee has a representative, refer to them as the Applicants Representative
- When considering settlement offers remember that coming to a settlement is not an admission of guilt or wrongdoing
- When considering settlement offers and options consider; reference, statement of service etc as apposed to the standard [x] weeks wage, or reinstatement
- When considering settlement offers balance the time, effort and expense of proceeding to Hearing – at a Hearing businesses will typically have to engage assistance with the preparation of papers and in some cases legal representation, in addition to the time and effort of any witnesses called
Help with responding to an Unfair Dismissal Claim
ACAPMA Members are reminded that they can access assistance with responding to unfair dismissal claims as part of their membership. There is no additional cost for assistance with response.
More from this Series
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by emailing firstname.lastname@example.org its free for members. ACAPMA membership is affordable at only $810 per year for a single site and valuable with sites gaining HR and IR advice support and representation as well as a raft of other benefits and discounts see; https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom(HRM & IR)