An integral and early part of the unfair dismissal process is where the Fair Work Commission directs the parties to attempt to resolve the dispute between themselves before proceeding to a formal hearing before the Commission for a determination. This is called conciliation. It is sometimes also referred to as a conciliation conference or conference by telephone.
In this article, we’ll discuss what conciliation is, how the process works, and the pros and cons of reaching a resolution of your unfair dismissal case in conciliation rather than through the formal hearing process.
What is Conciliation?
In an unfair dismissal case, conciliation is where you and your ex-employer attempt to resolve your case through private and confidential discussions that are facilitated by the Fair Work Commission.
Conciliation is “without prejudice” meaning parties can make concessions for the purposes of resolving the dispute without those concessions later being used against them if the matter proceeds to a formal hearing. So for example, whereas you might be seeking up to 6 months wages at a formal hearing, you might be prepared to resolve the dispute for an amount less than that purely for the sake of achieving a speedy and efficient resolution and to eliminate the uncertainties and costs associated with a hearing.
Through discussion of the issues and potential concessions made by each side, it is possible for a resolution of your case to be reached. This can involve both financial and non-financial concessions.
How Does Conciliation work in Unfair Dismissal?
As we set out in our unfair dismissal guide, after you have filed your Application for Unfair Dismissal Remedy and your ex-employer has responded with an Employer’s Response, the Commission will send you and your ex-employer a notice of listing with a time and date for the proposed conciliation conference.
Neither you nor your ex-employer needs to request this first conciliation – it is simply part and parcel of the process.
Ordinarily, conciliation in unfair dismissal will take place by telephone.
If you have an employment lawyer then you would often attend your lawyer’s office so that you can more easily discuss things with them before, during and after the conciliation as necessary. However in a post-COVID-19 world it is also not uncommon to dial in from different locations. In either case, your employment lawyer will speak on your behalf.
Generally, the “conciliator” facilitating the discussion will be a trained staff member employed by the Fair Work Commission to help with the process.
Importantly, their job is not to give anyone legal advice or make decisions that bind any party. They are there to ask questions, facilitate discussion, and invite each party to make offers with a view to resolving the matter before it proceeds further down the litigation path.
You do not need a lawyer to attend a conciliation, but having a lawyer represent you will usually assist your prospects of achieving a favourable outcome.
What are the Benefits of Resolving at Conciliation?
Long-running litigation can get very expensive, and given how complicated it is your lawyer will not usually be able to give you certainty about the end result.
For this reason, the primary benefit of a resolution at conciliation is that it gives both parties an opportunity to strike a deal which:
- Offers them certainty; and
- Brings the matter to an end swiftly.
This is why an initial attempt at conciliation takes place early on in the process. As you might expect, parties are usually less willing to try and settle a dispute if they have already incurred significant costs.
Also, because your unfair dismissal application needs to be made so quickly (within 21 days of your dismissal) there is a good chance that between making the decision to file and the conciliation you and your lawyer have had more time to work through the issues, consider your employer’s response documents, consider the likely time and costs of proceeding, and assess the likely outcomes for you in greater detail.
This means you generally go into conciliation more armed with advice and information than you likely had at the time of initial filing. As a result, you could be more amenable to resolving your case than you were earlier, and can do so with a greater degree of confidence.
For many, the limiting of legal fees and the certainty of the result are compelling reasons to finalise a matter sooner rather than later, provided you can negotiate an acceptable outcome.
What are the Downsides of Conciliation?
Inevitably a resolution reached at conciliation is going to require one, or both, parties to compromise on their positions.
So while you might believe that you are entitled to payment of $X, to bring the matter to an end you might need to agree to accept less than $X to settle the matter.
Similarly, while your employer might believe they did nothing wrong in terminating you (or, at least, that seems to be the case based on their response to your claim) then they might agree to pay you some compensation having regard to the general risks and costs of litigation.
And while it’s uncommon for a party simply to say “OK we accept that we were wrong” you can generally get an idea from the nature of these discussions where everyone stands.
So how is this a downside? Well, it means that to avoid a protracted dispute then usually both parties need to be persuaded that it’s worth it to accept a less attractive outcome than they really want.
And in particularly contentious situations that can sometimes be difficult to stomach.
How can you Best Prepare for Conciliation?
By the time of the conciliation, you should hopefully have discussed with your employment lawyer:
- The strengths and weaknesses of your case;
- If you are entitled to some kind of payment, the likely parameters that might be if the matter is litigated;
- The estimated costs if the matter proceeds to a contested dispute in a formal hearing;
- The best and worst case scenarios if you do not resolve the matter; and
- Some acceptable negotiating positions.
Armed with these things you can take a considered, sensible and ultimately “right for you” approach to the conciliation before the Commission. At the end of the day, nobody can force you to settle your matter during conciliation, but having a good understanding of where things are and where they might head can help you make a decision that’s best for you in the long run. If you need help preparing for an upcoming conciliation then don’t hesitate to reach out.
We assist employees with unfair dismissal conciliation conferences. This can entail full representation, where we act on your behalf throughout the process and advocate on your behalf so you don’t have to worry about any of the details. Alternatively, it can entail the provision of advice and coaching so that you are better equipped to represent yourself at the conciliation. We offer a variety of service packages depending on your specific needs and requirements.