How the unfair dismissal process and conciliation actually work
A nine-step process from dismissal to a possible appeal, with a voluntary conciliation meeting in the middle that resolves about three in every four cases, according to the Fair Work Commission.
The Fair Work Commission publishes the usual sequence for an unfair dismissal case as nine steps, while noting that "some cases are different" and it will tell you if yours follows a different path. The employee applies within 21 days, online in most cases, and the Commission sends the employer a copy, asking for a response within 7 days. If the employer raises a jurisdictional objection, that is heard separately, usually after conciliation. The Commission then arranges a conciliation meeting, usually about 5 weeks after the application is received.
Conciliation is voluntary, confidential, and resolves most cases
Conciliation is not a hearing. A Commission staff member, not a Commission Member, leads a discussion that takes up to 90 minutes, usually online, and neither side is required to settle: "Either side can refuse to settle." The Fair Work Commission's own figure is that this happens in about 75% of cases, close to "3 out of 4." That is a resolution rate, not a success rate: a settlement can be an apology, the employee's resignation on agreed terms, reinstatement, continuity of service, unpaid entitlements, a financial settlement, or a statement of service, and neither side is told in advance which of those will be on the table.
Where no lawyer or paid agent was present, there is usually a 3-business-day cooling off period after conciliation during which either side can withdraw from an agreement it just reached, after which the case would return to a formal hearing.
If conciliation does not resolve the case
The case goes to a Commission Member, described by the Commission itself as being "like a judge," who hears evidence at a formal hearing or conference, described as being "like going to court." The Member decides whether the dismissal was harsh, unjust or unreasonable and issues a decision. Either party can then appeal, but must apply within 21 days of that decision, the same 21-day pattern that governs the original application.
Where this came from
- Fair Work Commission: The process for unfair dismissal claims.
- Fair Work Commission: What is conciliation?.
- Fair Work Commission: Options at conciliation for unfair dismissal.