What happens if conciliation does not resolve your case
The case moves to a formal hearing or conference in front of a Commission Member, who decides the outcome and issues it as a formal decision.
About 75% of cases settle at conciliation, according to the Fair Work Commission, which means roughly one in four does not. Where no settlement is reached, the case continues to a formal hearing or conference in front of a Commission Member, described by the Commission itself as "like going to court," and both parties need to prepare evidence for it.
The cooling off period, if you did settle
This guide is about cases that do not settle, but the reverse situation is worth knowing too: where the parties did reach an agreement at conciliation and neither had a lawyer or paid agent present, there is usually a 3-business-day cooling off period during which either side can withdraw. If that happens, the case returns to the hearing pathway described here.
The hearing itself
A Commission Member, described by the Commission's own guidance as being "like a judge," hears the evidence and decides whether the dismissal was harsh, unjust or unreasonable, issuing a formal decision. If the dismissal is found unfair, the Member looks first at whether reinstatement is appropriate, and only considers compensation once reinstatement has been ruled out. The Commission's own guidance on timing is general rather than a fixed figure: a hearing "usually" happens months after the application was received, not weeks. Either party can appeal the decision, but must apply within 21 days of it being issued.
What hearings actually decided in 2024-25
The Fair Work Commission publishes a yearly count of hearing outcomes. For 2024-25, out of 263 matters that reached a decision: 89 applications were dismissed because the dismissal was found fair; 134 were granted a monetary remedy; 4 were granted reinstatement alone; 5 were granted reinstatement with lost remuneration; 7 were granted with no remedy; 19 had a remedy still to be determined at the time of reporting; and 5 were settled by the parties on remedy after being found unfair. A monetary remedy, not reinstatement, is by far the more common outcome once a dismissal is found unfair at hearing.
Where this came from
- Fair Work Commission: Options at conciliation for unfair dismissal.
- Fair Work Commission: Outcomes or remedies at an unfair dismissal hearing.
- Fair Work Commission: The process for unfair dismissal claims.