How to conduct an unfair dismissal hearing
A. PRELIMINARY MATTERS
- You should make sure that both yourself and your witnesses are at the Fair Work Commission premises at least an hour before the scheduled starting time for the hearing. You should take into account traffic and give yourself plenty of time to get there. It is a good idea if you can make the trip a day or 2 before to familiarise yourself with how to get to the Fair Work Commission premises.
- You and your witnesses should dress neatly.
- You should not try to coach any witness in their evidence, ie try to persuade them that something happened in a certain way.
- You should prepare an arch folder with each of the witness statements in it with dividers to separate them and with each divider marked as to which statement it is in front of. You should have your statement first, then the other statements of your witnesses, then each statement of the respondent. You should have a copy of each of the signed statements of yourself and your witnesses to use during the hearing.
- You should bring several writing pads, pens and highlighters with you for use during the hearing.
- Prior to the hearing, you should read through each statement of the respondent and highlight each sentence that states a fact that you disagree with and make any notes you want about the fact.
B. WHAT TO DO WHEN YOU GET TO COURT
- There will be a list on a noticeboard setting out the hearing room that you will be in . You should wait just inside the court room or in one of the waiting chairs outside if it is not open yet;
- The respondent’s representative or advocate will likely introduce him or herself when they arrive. You may refer to them by their first names outside court but when the hearing starts, refer to them as Mr or Mrs;
- When the hearing room opens, the commissioner’s associate will come out – if appropriate, you should say that you would like the opportunity to have another conference before the hearing starts. The associate will ask the respondent’s representative if they are willing to participate if this is the case. This conference may or may not be with a different commissioner to the one hearing the matter. If the matter settles at the conference, you can choose to use the standard FWA terms of settlement or the respondent may have prefer to prepare their own deed.
C. PRESENTING YOUR CASE
- If the matter does not settle, it will proceed to hearing. You should stand up when the commissioner comes into the room and leaves the room. You should address the commissioner as “Commissioner” and be polite in what you say to him/her.
- The sequence is that you as the applicant get to go first and call your evidence and then the respondent’s side of the case gets presented. Witnesses have to wait outside the court until they are called.
- There may be preliminary issues the Commissioner wishes to raise such as how long the case is likely to take, how many witnesses you have and when they can give evidence.
- You will be the first witness. You should say to the Commissioner that you wish to add some information to what is in your statement and ask if that is acceptable. He/she will probably say that it is. You will then have to go to the witness box and swear on the bible or give an affirmation to tell the truth. You should take a copy of your witness statement into the witness box with you. The commissioner will then ask what you want to say and you will have an opportunity to speak and add anything you consider to be relevant to the case. If the other side objects to anything you say, just follow what the commissioner says. Remember that you can only give evidence of things you said or personally witnessed – you cannot give evidence about things you believed happened or might have been told happened by another person.
- Once you have said your piece, you will be asked questions by the respondent’s representative. You should make sure that you listen to the question – THIS IS VERY IMPORTANT – and answer the question that you are asked. Dont try to guess what the advocate is getting at – just answer the question – you dont need to confine yourself to yes or no answers but nor should you ramble on – just answer the question as best you can and don’t try to anticipate what is coming and don’t try to think too much in the witness box. Be honest with your answers. If you don’t understand a question, say so. Ask for it to be repeated if you don’t follow it. Don’t try to be smart about what you say.
- At the end of the questioning, you will be asked if there is anything arising out of the cross examination that you wish to say. This is not an opportunity to give new evidence – it is only to rectify anything that came out in cross examination that might be incorrect or give a misleading impression. It is natural that each party will try to present their case in the best possible light. Re examination should not be treated as an opportunity simply to re state your case and generally, as a self represented person, you should avoid attempting re examination.
- Once you have finished your evidence, you should ask your first witness to come into the hearing room and ask them to go to the witness box. They will also be asked to swear an oath or affirmation to tell the truth. You should ask each witness to confirm their name and address and whether their statement is true and correct and whether they wish to add anything to their statements. If the Commissioner approves, you should ask the witness what they would like to say. Once the witness has finished, the respondent’s representative will be able to cross examine the witness. The points raised above apply equally here. You will have an opportunity to re examine your witness but generally this will not be necessary.
D. THE RESPONDENT’S CASE
- Once all of your witnesses have given their evidence and been cross examined, your case will be finished. The respondent will then present their case. They may be given the opportunity to make a short opening statement or summary of their case. They will then call their witnesses in order and undertake a similar process of confirming their statements and adding any further relevant information. You should take a writing pad and a couple of pens and make notes of anything that a witness says that you factually disagree with. Also take notes of what is said as the day progresses if you feel able. However, the most important thing is to LISTEN to what is being said.
- Once a witness’s evidence is finished, you can then ask the witness questions about their statement. The key is to put the highlighted items in the witness’s statement to them that you disagree with – so you say “I put it to you that you are not correct when you say…….. I put it to you that what I have said (or one of your witnesses) at para (or paraphrase your evidence) is correct”. The important part is that you put your version of events to each of the respondent’s witnesses who are disputing your version of events. This should be done in a polite and conversational way – try not to get upset and don’t become abusive or frustrated (which will be hard). Make sure that you go through all the highlighted areas in the witness statements. Once your cross examination is finished, the respondent’s representative can ask questions of their witness which arise out of your questioning (called re examination). This is generally short.
- Once their case is finished, the commissioner will then probably ask if you have any closing comments – you can summarise your case with the assistance of your outline and address any new matters that have arisen in the hearing but you don’t have to say anything if you are exhausted by this stage.
- The Commissioner will do their best to ensure that you are not disadvantaged by not being represented – they may well ask whether you have anything to say about various points – if you don’t have anything to say, then don’t say anything.
- You may or may not get a decision there and then – you probably wont – it will be sent to you when it is ready.