Unfair Dismissal Conciliation In NSW

Unfair Dismissal Conciliation In NSW

Unfair Dismissal Conciliation In NSW

Find out more about unfair dismissal conciliation conferences in New South Wales, the process and how it can help you resolve your dispute without a costly and time-consuming legal process. Under the NSW Industrial Relations Act, if you have been terminated prematurely from your workplace, you are entitled to pursue an unfair dismissal claim. A conciliation conference aims to help parties reach an agreed settlement and resolve matters informally. Let’s take a closer look.

What Is An Unfair Dismissal In NSW?

If you have been terminated from your employment and believe the dismissal was unjust or harsh, you may be legally entitled to make an unfair dismissal claim against your employer.

If you believe your termination was unreasonable, have been forced to leave your workplace due to pressure from your employer, or have received threats of dismissal, you may also be eligible. 

A typical scenario where employees may be eligible to claim an unfair dismissal includes:

  • No valid reason for dismissal
  • An employee was not provided with grounds for dismissal
  • The employee was terminated without receiving a prior warning for poor performance

Eligibility For Unfair Dismissal Claims

You must make unfair dismissal claims within 21 days of your termination and meet specific eligibility requirements.

You can not submit an unfair dismissal claim if you are:

  • Casual employee
  • Employed for less than six months
  • Employed on a contract basis
  • Apprentice or trainee employees
  • Employed for a specific task

If you are an employee in the public sector, you must be covered under a state industrial award or have an enterprise agreement with your employer. You will also need a salary of less than $133 000 to be eligible.

Unfair Dismissal Laws

Unfair dismissal laws in New South Wales vary depending on whether you are a public or private sector employee. 

The NSW industrial relations system laws will apply if you are employed by the state, local government, or public sector. The legislation is covered under the Industrial Relations Act 1996.

For commonwealth government or private sector employees, the National Workplace Relations or Fair Work Act 2009 act covers employees for unfair dismissals. Legal requirements under the act state that employees have access to the dispute resolution procedure. Unfair dismissal claims are made to the Industrial Relations Commission.

If you agree to a settlement after completing a conciliation conference, you must establish a binding agreement to protect everyone involved. Otherwise, either party may recant the settlement at a later stage.

The legal principles state that three cases determine whether a binding settlement agreement has been reached.

  1. All parties agreed to be immediately bound to all conditions once it has been formally documented in more detail with the same information.
  2. Parties have reached finality and agree on the terms but have at least one of the terms conditional upon executing the formal document.
  3. Either party refuses to agree unless a formal contract has been executed.

The first two cases have a binding contract irrespective of whether a formal document was established after the verbal agreement. The agreement is a contract binding the parties to perform the agreed terms.

If you are considering pursuing matters further, you must obtain professional legal advice from a lawyer specialising in civil law. They can advise whether you have reasonable prospects of success in a hearing. 

Procedure For An Unfair Dismissal

If you feel that you have been unfairly fired from your workplace, you are entitled to lodge an unfair dismissal application with the New South Wales Industrial Relations Commission. You must complete an application form on their website and pay $91 when filing your claim. If the application is approved, a date for conciliation will be provided, usually around three weeks after the claim submission. 

The commission may not grant the application and, when making their decision, will consider; 

  • the hardship caused to the applicant and employer
  • the conduct of the employee during their dismissal

Commonwealth government employees claim under the national workplace relations system and make an application to the Fair Work Commission.

The most crucial step in an unfair dismissal case is conciliation. Attempts to resolve a disagreement independently often end with a mutually agreeable outcome. The Industrial Relations Commission will oversee the conciliation conference, and you are entitled to have representation in the form of a family member, friend or union official attend for support.

If conciliation did not produce a satisfactory outcome, you could prepare to start proceedings in the high court for a full hearing.

What Is Conciliation?

Conciliation is a voluntary process designed to help resolve unfair dismissals and to reach a settlement agreement.

A significant part of effectively managing an unfair dismissal process is enabling employer and employee to negotiate informally. 

The benefit of conciliation is that it may avoid a formal hearing or conference, which can save a lot of expense and time because an arbitrated hearing may be necessary if mediation is unsuccessful.

Representation At Conciliation

Attending a conciliation conference may be an uncomfortable or daunting experience for an employee who has recently been terminated. Having a representative participate in the process may help employees feel more relaxed and improve communication between parties.

An employee is not required to have representation, but they may prefer to do so.

A representative may be a lawyer, friend, union or industry body official.

Potential Outcomes

You may be reinstated into your former role within the organisation or receive financial compensation negotiated between yourself and your employer. The amount of unfair dismissal compensation will vary depending on the agreed settlement with your former employer. The maximum amount you are entitled to claim would be the equivalent of 26 weeks’ remuneration of your salary if you earned less than $133 000 per annum.

If your case proceeded to court, you would be required to cover your legal expenses. The industrial relations commission may order you to pay court costs if they believe the matter was frivolous.

The Role Of A Conciliator

A conciliator is an impartial and independent individual trained and experienced in unfair dismissal law, conciliation and workplace relations.

A conciliator aims to :

  • Establish disputed issues
  • Help both parties to reach an agreeable resolution to the issues
  • Lead the discussion
  • Provide guidance and support
  • Ensure the conversation remains on topic and civil

In most cases, the conciliation will be conducted by a fair work commission staff member. They will not take sides, offer legal advice or make any decisions. They can, however, suggest an offer based on their knowledge of the law and particulars of the matter. Both parties decide the outcome of the conciliation.

How Does A Conciliation Conference Work?

A conciliation conference is an opportunity to resolve a dispute between two parties informally. The meeting can take place either over the phone or face to face. The session will generally run for 1-2 hours, depending on the complexity of the issues. Each party will have an opportunity to be consulted individually, and legal representation or a family member can be present if required.

If further conciliation is required, it can be requested at any stage, as matters may not settle in the first conciliation session.

The ideal result is for a binding settlement agreement to be reached. The agreement is not finalised until a formal contract has been executed. Both parties must agree and sign the legal document for the contract to be binding. A three-day cooling-off period is available to all parties to review the settlement, allowing either party to obtain legal advice if required.

Summary

If you feel that you have been unfairly dismissed from your workplace, you are entitled to lodge an unfair dismissal application with the New South Wales Industrial Relations Commission. If the application is approved, a date for conciliation will be provided. Employees on short-term contracts, apprentices or casual employees may not be entitled to make an unfair dismissal claim.

Conciliation conferences are designed to help resolve an unfair dismissal dispute by both parties by reaching a binding settlement agreement through informal communication and negotiation.

A conciliator will manage the conciliation process by leading the discussion, helping establish the critical issues involved and providing guidance to help parties reach a binding agreement. A conciliator is an impartial and independent individual trained and experienced in unfair dismissal law, conciliation and workplace relations. Having a representative participate in the process may help employees feel more relaxed and improve communication between parties.

The ideal result is for a binding settlement agreement to be reached. The agreement is not finalised until a formal contract has been executed. A three-day cooling-off period is available to all parties to review the settlement.

If conciliation did not produce a satisfactory outcome, you could prepare to start legal proceedings in the high court.

If you are considering pursuing matters further, you must obtain professional legal advice from a lawyer specialising in civil law. They can advise whether you have reasonable prospects of success in a hearing. 

FAQs

What Happens In Unfair Dismissal Conciliation?

In most cases, the conciliation will be conducted by a fair work commission staff member. They will not take sides, offer legal advice or make any decisions. They can, however, suggest an offer based on their knowledge of the law and particulars of the matter. A conciliator will manage the conciliation process by leading the discussion, helping establish the critical issues involved and providing guidance to help parties establish a binding agreement.

Having a representative participate in the process may help employees feel more relaxed and improve communication between parties. A representative may be a lawyer, friend or union official.

What Happens In Conciliation?

Conciliation is a voluntary process designed to help resolve issues surrounding an unfair dismissal.

Both employer and employee can negotiate informally to reach a settlement agreement. The meeting can take place either face to face or over the phone. The session will generally run for 1-2 hours, depending on the complexity of the issues.

The ideal result is; that both parties agree and a binding settlement agreement is reached. The agreement is not finalised until a formal contract has been executed. A three-day cooling-off period is available to all parties to review the settlement, allowing unrepresented parties to obtain legal advice if required.

How Much Compensation Will I Get For Unfair Dismissal Australia?

The amount of unfair dismissal compensation will vary depending on the settlement agreement reached with your former employer.

Your employment may be reinstated within the organisation or receive financial compensation, which will be negotiated between you and your employer. The maximum amount you are entitled to claim would be the equivalent of 26 weeks’ remuneration of your salary if you earned less than $133 000 per annum.

If your case proceeded to court, you would be required to cover your legal expenses; also, the industrial relations commission may order you to pay court costs if they believe the matter was frivolous.

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