Unfair Dismissal: After the Conference…what now?
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, the Response to a Claim in Part 2 and the actual Conciliation
Conference in Part 3. Conciliation Conferences will result in either a Settlement or in a continuing dispute – one that is on its way to a Hearing. In this instalment we will explore both of these post Conciliation Conference outcomes.
As touched on in the last instalment, 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.
- Review the Deed
- Once the business receives a copy of the Terms of Settlement from the Conciliator care should be taken to review the terms to ensure that they reflect the agreement, and if they do not then the Conciliator should be contacted urgently to address this.
- Sign the Deed
- Once satisfied that the Deed reflects the agreement the Deed should be signed and returned to the Employee (and the Employees Representative if they have one). There is no need to provide the Deed to the Conciliator.
- Receive the Signed Deed
- The employee may sign the copy of the Deed that the business has already signed, or may sign a “clean” copy – either is fine. The Terms of Settlement are noted as being able to be signed in “counterparts” which means as long as the business (and the employee) has a copy of the Deed signed by itself and a copy signed by the employee (even if they are two different pieces of paper) then the Deed is counted as signed by both parties.
- Process the Settlement
- Once the Deed has been signed by both parties (see above) the settlement items will need to be processed.
- It is important to note that the agreed Settlement is dependent on the business providing the items that were agreed, in the timeframe that was agreed. If the business fails to provide the agreed items, then the Settlement will be void and the unfair dismissal claim will proceed to Hearing.
- Processing Monetary Settlement – If the settlement was a monetary amount, then this will need to be processed through the payroll system. It is important to note that the Deed will usually state if the settlement amount is to be “taxed as a termination payment” or “taxed as a wage payment” and that the appropriate taxation as reflected in the Deed must be applied. Settlements should be recorded in the wages system for the employee but should show on the payslip as Settlement, and must not be used to reduce any other unpaid entitlements (like annual leave). A copy of the payslip and proof of payment should be provided to the employee (and the Employees Representative if they have one).
- Processing Non Monetary Settlements – if the settlement was for something that was not money, such as a Statement of Service or a Reference, this should be prepared and checked to ensure that it is in line with the terms of the Deed. Often the Deed will call for Statements of Service that do not make mention of the reason for the employment ending. It is important that the documents are provided to the employee (and their Representative if they have one) as outlined in the Deed.
Settlement … Notice of Discontinuance
After the Settlement is Processed the Employee should complete the Form F51 – Notice of Discontinuance, to alert the Fair Work Commission that the claim is now settled and no further action is needed.
The employee is supposed to copy the business on this communication, though it is very common for the employee to forget. The business should not be concerned by this. A note should be made however, if the business receives further correspondence from the Commission on the Matter that has settled, that it would be appropriate at that time to communicate to the Commission that it is the businesses understanding that the Settlement was signed and processed and that the Matter is closed. This will allow the Commission to pursue the employee for completion of the Form F51 to close the matter.
The business should not chase or hassle the employee for a copy of the Form F51.
No Settlement…what now?
As covered, 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.
- Await Listing
- It will be some time between the Conciliation Conference and the receipt of a Notice of Listing for the Hearing. How long will depend on many factors, including the location of the employee and the number of cases currently before the Commission. It could be a matter of days or weeks before the business receives the Notice of Listing.
- The Notice of Listing for Hearing is similar to the Notice of Listing for Conciliation Conference, it will outline the steps each party needs to take and by which date, and will come with some links and instructional information to allow the business and employee to comply with the requirements.
- In some localities the business may receive a Notice of Mention, where the a teleconference will be held by a Commissioner to explain to the parties what needs to happen, who needs to do what and by when. This is not always the case, many Hearings go straight to Listing without Mention.
- While the business is awaiting the Listing it should commence preparing for the Hearing, by gathering information and reviewing the Unfair Dismissal Benchbook – which is a resource from the Fair Work Commission that aims to inform parties about the process and requirements of a formal Commission Hearing on Unfair Dismissal.
- Processing the Listing
- Once the Notice of Listing has been received the business should take pains to ensure that it clearly understands the timelines it is required to meet, the evidence it will be required to produce and the arguments (including any relevant legal arguments) it is going to need to make.
- If the unfair dismissal case has Jurisdictional Objections or is of a complex nature it may be appropriate at this time for the business to seek legal advice, and if appropriate, seek permission to be represented by legal council (noting that the right for representation is automatic if the representative is from the business Registered Employer Organisation – like ACAPMA, or from the employees registered Employee Organisation – like a Union – otherwise legal representation has to come with permission of the Commission which is not the default position).
- Out of Session Settlement?
- There remains the option for the business and the employee to come to a settlement anytime before the Commission Hearing actually starts, in fact the Commission encourages the parties to come to an agreement if at all possible.
- The business should use caution when tabling a settlement offer and should ideally start with an email – clearly noted as “Without Prejudiced and In Confidence” – that starts by outlining that the last offer of the business is still on the table (or a different one if appropriate) and that the business is willing to enter into further settlement discussions via email in the interests of saving the time of the Commission if the employee is amenable.
- Any such settlement offer should be sent to the employee AND to the Employees Representative if they have one. These should not be sent to the Commission or to the Conciliator.
- It is strongly recommended that any settlement that is agreed this way is formalised using the standard Fair Work Commission Deed of Settlement to ensure both parties are protected.
- It is also strongly recommended that after any out of session settlement agreement is made and executed that the business ensure that the employee provides the business and the Commission with the completed Form F51 Notice of Discontinuance.
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)