Our step by step guide
It’s easy to find out what constitutes an Unfair Dismissal or General Protections case on the internet. However what actually happens when you get to the conciliation conference? Here is a step-by-step guide explaining what to do to get the best out of your Fair Work Commission application. This is whether it’s an Unfair Dismissal or a General Protections claim. Conciliation conference what to expect is completely different to what the text books or internet or Youtube states.
The first step is to contact a representative to information gather and understand the process. Talk to the representative about your case, their fees, and what services they can offer you. Once you find a representative that you like, then it is important to make sure that your case is written properly. Its important your claim is written to a federal court standard.
This demonstrates to the employer your serious and you are seeking the best possible outcome. We always recommend that you think about the key point of your argument. For an Unfair Dismissal case this would be that procedural fairness was not followed and that the dismissal was harsh, unjust, or unreasonable.
I want to run my own case
Many employees want to represent themselves. There is nothing wrong with that. The Fair work Commission has a lot of helpful information available for you to do just that. Our web site also has a lot of information particularly on general protections because of the complexities surrounding the law and processes. Hopefully this article (and others we publish) are helpful for you.
Having stated that I say to self represented employees (which is fairly harsh) “well your employment hasn’t worked out to well so why is going to resolve in success now”. I want employees to be aware of the realities of it all. Its a lucky dip. Does the conciliator understand your case as laid out in the paperwork? The employer has the best legal minds in the country to defeat you. Nobody knows their business better than the employer and their used to negotiating as part of the business.
Or they just turn up and tell a whole heap of lies. I just don’t want employees embarrassing themselves and not getting a settlement that is rightfully theirs. Further the amount reflects the injustices done. Lets be honest running a legal case based on training from Youtube videos is fraught with danger. Sum it all up, read widely on the topics then decide what to do.
General protections conciliation
For a General Protections case, there are a couple of arguments you can make. The first, and most common, is that you exercised your workplace right. And then the company took adverse action against you. Remember, exercising your workplace right could involve making a complaint or pursuing one of your work entitlements, like sick leave or annual leave. The adverse action against you can be injuring your employment through demotion. Or putting you on a performance improvement plan, or terminating your employment.
The second argument you can make is that adverse action was taken against you because you have a protected attribute. This could mean that you were demoted because of your gender or race, or that you were sacked because of a mental disability. There are many protected attributes listed under the Fair Work Act. It is important to evaluate whether you fall under any of them.
Must establish your argument
Once you have established your argument, try and create a chronology of events that directly support your argument. For example, you exercised your workplace right on this date, and then adverse action was taken against you a week later. Of course, this process of writing a claim is a lot easier said than done. Which is why we recommend that you seek a professional to represent you throughout the process.
They know the best claims are short and to the point. The Fair Work Commission does not care that your colleague didn’t say ‘good morning’ to you on Monday or that your boss didn’t laugh at your joke. Those kinds of stories are best left out of your claim so that the conciliator, who has to read your claim, stays interested long enough to get to your argument, and isn’t getting confused by background trivial incidents. We have a article “General protection right to whinge-and moan” that is helpful reading click here
Balance of probabilities that your right
Once you have written your short, argument strong, claim then the employer gets a chance to respond to your allegations with their side of the story. Now, don’t be alarmed if they start writing lies or take things out of context to the point where it reads like you have made the entire thing up. The conciliation conference is not an evidence-based proceeding. Rather it is a negotiation so that both parties can settle the matter and move on with their lives.
To make your case you are only operating on the balance of probabilities. This means you only have to prove that it is more than 50% likely that your version of events is true. Now if you’re still worried, don’t be, because the Fair Work Commission conciliator is not there to rule on the case, rather they are there to settle the matter.
Keep it on point, don’t ramble on
Now, when the day finally arrives for you to have your conciliation conference, which is usually three to five weeks after you first lodge your claim, many employees can get disappointed if they don’t get the results they want. This usually occurs because they do not understand the process which generally happens if they don’t have representation. Conciliation conferences usually last approximately 90 minutes to two hours. This short time frame means that you cannot ramble on and on about every grievance you ever had with your company.
Rather, you will be asked to provide a summary of your case. This summary should be no longer than 10 minutes, so don’t be mad if the conciliator cuts you off if you’re taking too long. This is because they have strict deadlines to meet and likely have another conference immediately after yours. The summary should outline the background of your case with a strong emphasis on the most important points that make up your argument.
Both sides are entitled to a fair go
Once you are finished with the short summary of your case, the employer gets a turn to outline their arguments. Again, it is likely that they may tell lies during this time. Many people seem to get their feelings hurt at this point if the conciliator isn’t backing up their case or seems to be agreeing more with the other side. Do not be offended. The conciliator is there to give everyone a fair go. They are not there to pick sides or to protect your feelings.
The conciliator is only there to help facilitate a settlement and they will do that however they see fit. This is an even-handed process, not one where one side gets favored over the other. After the employer gets a chance to say their piece, you may or may not get an opportunity to rebut some of their points. Again, keep this short and sweet, as the conciliator is on a strict time limit and it is all about settling, not winning your case.
How negotiation works
Once the main part of the conference is done, you will be split off into separate negotiations and the conciliator will go back and forth to try and get that settlement between the parties. This is the part where it is extremely valuable to have representation as they have so much experience in these situations, whereas you may have no idea what to ask for. Again, the goal of the conciliation conference, and for the conciliator, is to settle. So if you do have a weak case they will tell you because they don’t want you holding out for some ridiculous amount that you are never going to get.
This negotiation process is crucial. This is why it is important to be quick at the start of the conference, as you want as much time available to negotiate as possible. If the conciliator is forced to end the conference before a settlement is reached, then your chance for compensation may be gone. Having representation will mean that a settlement is likely to be reached in the conference, or they can potentially continue the negotiations after the conference, depending on the situation.
Have you had a fair go?
Once the conciliation conference is over, some people still feel like they haven’t had a fair go. They either feel bullied by the conciliator, like the other side got away with telling lies, that they were rushed, or that the conciliator did not care about their feelings. Well, unfortunately, none of that matters. The Fair Work Commission is a national commission that works towards regulating and maintaining employment standards.
Be aware conciliators are not therapists, they are not your best friends, and they are not pro-employees. They are professionals looking to settle employment matters. The Fair Work Commission is not a body that has the power to enforce decisions or ‘fair’ settlement amounts, so do not expect them to do so at the conciliation stage.
Summary to: Conciliation conference what to expect
Deciding to pursue an Unfair Dismissal or General Protections claim can be daunting. Trying to figure out what to put in your claim can be extremely difficult. Knowing what to say at conciliation can be intimidating. That is why it is important to get representation so that the process can run smoothly, and you can make the best of a bad situation. Having someone in your corner to fight for you can take the stress out of the process and ensure you have the best chance of succeeding with your claim.
We keep mentioning representation, its up to you. However if your job and reputation is important to you, give your claim the best opportunity for success. The banking, child care, aged care, disability care are all lifting their standards of who can be employed. If your dismissed for serious misconduct, or resigned in untoward circumstances there is a fair chance you will not work in these industries again.
Call 1800 333 666 for immediate confidential advice. Its free
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