A part of the unfair dismissal process, conciliation is an opportunity for parties to settle before a hearing. The conciliation conference is used by Family courts and various Commissions like Human Rights Commission or the Fair Work Commission (FWC). Here we will focus of Conciliation in the context of the FWC. However some of the general principles are relevant to conferences in other processes. There are several aspects of the process that can be advantageous to both aggrieved employees and employers. These may be savings in costs, understanding or a more flexible and appropriate outcome. Here we will highlight some important aspects of the process to contemplate when heading down this path.
Unfair Dismissal Recap
An unfair dismissal dispute begins with an application to the FWC by the aggrieved employee. The employer then has the opportunity to object the application. A Conciliation conference will be organised if the objection is unsuccessful. If unsuccessful, sometimes a further conciliation conference may be arranged. Ultimately the matter then will proceed to a hearing if all other avenues for settlement are unsuccessful.
How Does a Conciliation Conference Work?
Conciliation is part of the process for resolving unfair dismissal disputes. It is a voluntary process and provides an informal opportunity to deal with and conclude disputes. Conciliation conferences are also confidential.
Conferences usually run for 1 hour and 45 minutes. Generally the conciliation conference takes place over the phone. There is no need to attend the FWC offices or organise a venue. This can save on costs which often dismissed employees do not have the funds to pay and employers would rather avoid.
Each party is allocated time to informally negotiate, then each is consulted individually to make their offer. The goal of the process is to reach an agreed settlement in order to avoid a more drawn out process. One of the advantages of a conciliation conference is that because of the informality, any outcome as long as both parties agree to it. This adds much greater flexibility and can yield more practical and satisfying results for both parties.
Parties may choose whether or not to be accompanied by representation. This can be a lawyer but also an advocate, a friend, union official for employees, or industry body official for employers. This may reduce costs for both parties but also provide an opportunity for improved communication in the dispute and an avenue to a more constructive discussion. Family members or friends can accompany parties in order to support them.
Who Are Conciliators?
Trained Commission staff are usually Conciliators. They are informed and equipped to conduct the process with experience in conciliation, workplace relations, and unfair dismissal law. In some situations a Member of the Commission will conduct the conciliation. Members of the Commission are more senior and generally deal with more serious matters.
Conciliators are different to mediators because they know the law and are able to offer advice to each party. This is an advantage in getting to and resolving the real issues in an unfair dismissal dispute.
The Role of Conciliators
All conciliators are there to be independent of the parties and impartial with the aim of facilitating a settlement agreement. Along with this conciliators will:
- Lead discussions.
- Provide guidance to both parties.
- Direct and ensure conversations remain civil and on topic.
- Explore and address the issues involved.
Ultimately the parties decide the outcome of Conciliation conferences. As such conciliators will not make any findings in the conference. However, in their role of guidance, they can suggest offers that may be relevant based on the law and the situation.
Representation
Any unrepresented parties, either employee or employer, are usually able to use a 3 day cooling off period to review the settlement. This review can be with legal counsel or other advisors and provides the chance to opt out of a settlement that may in hindsight be unfavourable or unsatisfactory. Parties that consider using this cooling off period to reject a settlement should reflect on the potential different outcomes that may come from a hearing. Balance these against the further cost of a hearing and the unappealing or distasteful points of the settlement.
Conciliators and Representation
It is important to know who will be conducting a conciliation as the rules around representation can vary, If the conciliator is a FWC staff member there are no formal permission requirements for any representation. However permission must be sought from the Commission to use legal representation or a paid agent in the conciliation conference if the conciliator is a Member of the Commission. If you need to apply for permission bear in mind that the Commission will give weight to arguments towards added efficiency and fairness in the process and will not be swayed by preference or convenience or preference of the parties. This aligns with the purpose of conciliation conferences: to be quick and cheap. You can find the correct form to apply for representation here.
The below video will assist in further explaining the reality of a Conciliation conference.
Final Points
Settlement will usually occur by a deed of settlement. When it takes the form of a contract there are 3 types of settlement that will result from a Conciliation conference.
- All the terms of the agreement are finalised. There is an intention to be immediately bound to perform them but also a proposal to have them drawn up in a more formal and precise way that does not differ in effect.
- Like the firstall the terms are finalised however performance of one or more of the terms are dependent on the execution of a formal document.
- The agreement is not finalised in that the parties intend it will be when a formal contract is executed.
It is worth discussing these further with an employment lawyer who will be able to provide more specific advice to your circumstances.
