So you’ve lodged your unfair dismissal application with the Fair Work Commission (FWC) and you have a date for a phone conciliation conference. Here’s some things to keep in mind at the conference:
1. A conference is not a hearing and a conciliator is not a judge, nor an independent advisor. The conciliator will highlight the strengths and weaknesses of each party’s case privately. The conciliator will not take sides. It’s the conciliator’s role to assist the parties to find an agreement, not necessarily a fair and just agreement.
2. The process generally is that each party gets to give a short explanation of their position, following which the conciliator will usually speak with each of the parties separately about the merits of their position and assist with any exchange of offers of settlement.
3. Keep your opening statement short. There is not time to tell your whole story. Concentrate on the relevant unfair dismissal statutory factors and write out the strengths of your claim in bullet point form. An opening statement should be no more than 5 – 10 minutes in length. Summarise your strongest points at the end.
4. Be prepared for the employer to tell an entirely different version of events. This is common. Make notes whilst the employer is speaking. Respond if you wish but don’t get into a tit for tat exchange. Concentrate on your main points and repeat them.
5. Be realistic in your expectations. Employers are not likely to offer your job back or pay what you consider to be just compensation for the suffering you have been through.
6. Remember that there is no relationship between how bad a dismissal might be and the compensation which might be awarded. There is no point in asking for more than the FWC can award at a hearing. The statutory remedies are reinstatement if practicable, perhaps with backpay or compensation for loss of income which is capped at 6 months pay.
7. Any offer of compensation will need to be justified by reference to how long you would have remained in employment but for the termination, what other work you have obtained and how much you have earned in the time since termination. There is a duty to seek to mitigate your loss.
8. Your first offer will usually not be accepted. Have a 2nd and 3rd offer ready. Think and be clear about what you want and the time for any payment (which is usually 7 or 14 days from signing a settlement agreement).
9. A general rule of thumb is that a monetary settlement will be up to about 50% of what you might receive at a hearing given the benefits of early resolution. Conferences are about compromise. A compromise is something that neither party likes but is prepared to live with in order to get on with life.
10. A practical settlement at a conference often involves the employer agreeing to change the termination to a resignation, the provision of a statement of service, the parties agreeing not to make adverse comment about each other and, perhaps, some additional financial payment (subject to tax). This will require your agreement to releasing the employer from most forms of liability.
11. The employer may be legally represented at the conference but remember that representation past the conference stage is subject to the leave of the FWC and is far from a sure bet. Costs threats by the employer are usually hollow ones at the conference stage. Remember that lawyers are there to advance their client’s case. That doesn’t mean it will be accepted at a hearing.
12. Employers sometimes don’t treat conciliation conferences seriously and you may be distressed that employer offers don’t reflect what you consider to be the seriousness of the matter. If you are going to pursue your claim past the conference stage, you need to be prepared to see it through to a hearing if necessary. There will usually be a better offer of settlement at some point before hearing as most employers will not want to engage in a hearing but you shouldn’t bank on it. There is generally little downside in proceeding to a hearing but there is a considerable investment of time, effort and emotion required.
13. You will usually be called on to make a decision at the conference about a settlement and you may be placed under some pressure to make a decision. You can ask for a day or two in order to consider any offer but the time will not be open ended. Bear in mind that once you have accepted an offer, you won’t be able to change your mind unless there is a specified cooling off period.
14. Keep a sense of perspective. Sometimes there is no rational reason for a termination and you are unlikely to change the employer’s approach to its business by making your claim. It shouldn’t be about the principle of the matter.
15. The FWC has valuable resources which you should review before a conference, particularly the Unfair Dismissals Benchbook – https://www.fwc.gov.au/resources/benchbooks/unfair-dismissals-benchbook.
This is a collection of handy hints, not an exhaustive explanation of unfair dismissal conferences. It pays to get advice about your position before a conference even if you don’t have representation at the conference. Please contact us if you would like any further information or help.