A Common Mindset: Preparing for a Fight
Due to the time limits for unfair dismissal claims, often the initial focus is on properly preparing the application to be filed with the Fair Work Commission (or, for some public sector employees, a State-based Industrial Relations Commission). In that process, seeing that reinstatement is a possible remedy, many people seek such an order. There are often claims for compensation as well. During this time, people are often mentally preparing themselves for a contested legal dispute with their former employer.
The reality is it is possible to resolve most unfair dismissal applications without needing to go to a contested hearing. As an employment lawyer, I am frequently engaged to try to reach a settlement prior to a matter proceeding to a contested hearing before the Fair Work Commission. There is an array of dispute resolution processes, both informal and formal, to help litigants settle unfair dismissal claims. Such settlements are often agreed to be confidential in the interests of both parties.
In truth, while it may be beneficial to keep an open mind about settling a claim on an appropriate basis, people involved in a legal dispute must be mindful that you are only in control of your own case. If the other side will not come to an appropriate agreement, you should be prepared to fight for the outcome you think is right through contested litigation.
Settling & Resolving Unfair Dismissal Claims
So, assuming you are eligible to make an unfair dismissal application and have filed a claim with the Fair Work Commission, the obvious question is ‘What happens next?’.
In answering that question, it is worth observing that the Fair Work Commission is supposed to afford both employees and employers less formal, less adversarial and less expensive methods to resolve workplace disputes. Section 577 of the Fair Work Act 2009 (Cth) states that the manner in which the Commission are to perform their role is in a way that:
is fair and just; and
is quick, informal and avoids unnecessary technicalities; and
is open and transparent; and
promotes harmonious and cooperative workplace relations.
While it is certainly common for lawyers to represent a party in different proceedings before the Fair Work Commission, permission must be sought from to allow for this to occur. Often lawyers are permitted to participate because it makes the process more efficient and allows a party to better understand the process. For a legal representative to assist an applicant or respondent in an unfair dismissal application, the Commission has a discretion to permit or deny in circumstances where:
it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
There is generally nothing to stop the parties trying to reach an appropriate settlement of all claims outside of processes provided by the Fair Work Commission.
In trying to settle claims quickly, we are often asked to see if the other party is willing to engage in negotiations to try to reach a settlement. There are a couple of reasons why this makes sense for employers and employees:
Early negotiations reduce the time and cost associated with preparing for a contested hearing;
Early resolutions allow both parties to move past the dispute as soon as possible;
Confidentiality and privacy can often be maintained, which may benefit both parties; and,
Negotiated settlements may involve conditions or terms that would not be possible through a contested hearing.
The types of agreements we try to reach for our clients are often devoted to ensuring they can move forward with as reputational harm, cost and concern as possible. It generally calls for an innovative and tailored approach and a willingness from the other side to settle the dispute.
While we encounter many people who are well equipped to conduct these negotiations themselves, in reality unfair dismissal claims often have other factors associated with them that make that more complicated than is usual. While power imbalances that may exist between an employer and employee may be obvious, often the hurt and distress a person experienced by feeling they have been unfairly dismissed makes it more difficult. A lawyer often provides a separation to allow any negotiations to occur with a clear focus on the legal rights and entitlements of their client.
For unfair dismissal claims, a ‘Conciliation Conference’ represents an informal, confidential and voluntary opportunity for both parties to resolve a dispute. The Commission employs a team of trained mediators experienced in resolving workplace disputes to assist parties to an unfair dismissal claim to settle it without a contested hearing.
The role of the Commission Conciliator is to aid in resolving the dispute only. They cannot offer legal advice, nor do they offer personal opinions. Conciliators do raise issues with the parties and test the arguments underlying an application or the response to a claim. As a ‘neutral third party’, they try to engage in genuine problem solving and interest-based negotiations.
Consistent with the informal and efficient processes required of the Fair Work Commission, conciliations are generally held by the telephone. It reduces travel costs and often means that the different parties, their lawyers and the conciliator may all be in different locations.
The length of a conference is typically an hour and a half, therefore there is only a short amount of time that both parties can potentially resolve the unfair dismissal claim through this process.
If there is an agreement reached, generally the parties will both sign a deed of agreement and release, which formally sets out the terms of the settlement. Confidentiality surrounding the agreement may be one of the matters agreed by the parties.
While finality of a case might be achieved at a Conciliation Conference, there are times that the parties to the matter won’t be able to reach an agreement. In those circumstances, the case will then need to proceed to a more formal method of dispute resolution, namely a hearing.
Hearings before the Fair Work Commission
While a Conciliation Conference is conducted in a confidential setting with agreements generally also being kept confidential, the same cannot be said for contested hearings. In the event a matter is contested and proceeds to a hearing, when the Fair Work Commission makes a decision, the result will generally be publicly accessible. Sometimes, decisions involve important legal issues or novel circumstances, which make them newsworthy. Individuals and businesses often lose control over the privacy of the issues at this point. In my experience, reputational worries for litigants generally increase rather than decrease as disputes drag on.
A hearing is a formal process, which calls on both sides to produce evidence to support their arguments, as well as call witnesses as necessary. It can be a lengthy, time-consuming and costly endeavour. For businesses, it can divert significant time away from ‘getting on with the job’. Experience also shows that the expectations for both sides can be such that when a decision is made by the Fair Work Commission, both sides can be disappointed with the outcome.
For a litigant who is aggrieved by a decision of the Fair Work Commission, it is possible to appeal to the Full Bench of the Fair Work Commission.
Appealing Decisions of the Fair Work Commission
Appeals to the Full Bench of the Fair Work Commission are time specific (within 21 days after a Commission hearing decision) and permission must be sought by the Commission on the grounds that an error of law or fact has been made by the primary decision maker, and it is in the public interest to permit the appeal.
What should be said is that the when assessing the test of ‘public interest’ it is said to be discretionary one that involved “broad value judgment” where the Commission must not grant permission to appeal unless it consider it is “in the public interest to do so” ( FCAFC 54).
Not all matters will meet the public interest test. For example, in a recent 2019 decision before the Full Bench ( FWCFB 223), an applicant challenged a Fair Work Commission ruling on the basis that errors of both fact and law had occurred when determining the question of award coverage. The applicant argued that the provision of equine services he delivered in a private veterinary practice should fall within the coverage of the Animal Care and Veterinary Services Award 2010. The applicant sought to establish that it was in the public interest to allow the appeal because of the injustice and that there was an expectation that an employer would comply with the relevant Award. The Full Bench was not persuaded, denying the appeal because it did consider the original decision “manifests an injustice or leads to a counter intuitive result when result”.
By contrast in a 2018 decision before the Full Bench ( FWCFB 5960) an appeal was upheld on the basis that it was in the public interest to allow the appeal where errors of fact had occurred when calculating the amount of compensation to be awarded to the applicant.
Decisions of the Full Bench of the Fair Work Commission demonstrate that it will closely examine the legal and factual issues involved but also strictly considers the public interest in permitting appeals.
However you may think an unfair dismissal application may be best resolved in your case, any resolution short of a contested hearing requires two sides to agree. A successful resolution often requires both sides to think about short-term and long-term objectives. Unless an applicant understands (1) what remedies are actually possible through an unfair dismissal application, and (2) why certain outcomes may not be realistic in their case, it can be difficult to properly negotiate with the respondent former employer.
The key to a successful resolution is to understand the strength of your position and properly advocate for your interests. Any attempts at resolving your unfair dismissal claim before a Commission should have a clear purpose and end goal. Knowing all potential risks is fundamental in ensuring your future employability in the profession or industry you are working in.
Even if you are one of those people who has an “I’ve got this!” attitude, it can be difficult to foresee all of the risks or possibilities if you’ve never faced an unfair dismissal application previously. If you want to take advantage of our free case assessment with a member of our team here at Anderson Fredericks Turner, contact us to see how we may be able to help in your situation.
Let me just finish by thanking my colleague Karen Wilson for her work in researching and preparing the information I’ve been able to outline about resolving and settling unfair dismissal claims.
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to unfair dismissal applications. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville, although we have the capacity to advise and represent people nationally.