This website applies only to residents and the law of New South Wales, Australia.

4. THE NSW SYSTEM (continued)

4.6 Conciliation

The outcomes of conciliation

The primary remedy for an unfair dismissal claim is reinstatement or re-employment. If you're asking for reinstatement, you should also ask for compensation for lost wages between the time of your dismissal and reinstatement. However, employers will only rarely agree to reinstatement in conciliation and you should consider what compensation you would be prepared to accept to resolve the matter.

You should also consider other options, for example: getting a reference from your employer, or a statement of service, or for your employment records to say that you resigned rather than being dismissed.

In conciliation it is important to be creative, flexible and willing to negotiate. But you must also be clear about what your bottom line is when it comes to reaching an appropriate settlement. Some of the things you should think about when working out what is a reasonable amount of compensation in your case are listed in 4.8 Remedies.

Most unfair dismissal claims are settled at the conciliation stage without the need for a hearing so it is important to get advice on your settlement options. Again, your union or legal adviser will be able to help you decide on appropriate terms of settlement.

What happens if my claim is settled at conciliation?

If you come to an agreement with your employer at the conciliation conference you may be asked to sign Terms of Settlement outlining the agreement you and your employer have reached. You must also file a Notice of Discontinuance with the IRC withdrawing your claim of unfair dismissal. You should wait until your employer has actually done what they agreed to do in the settlement (eg; reinstated you, re-employed you, or paid you the agreed compensation) before you file a Notice of Discontinuance. If your employer fails to carry out the settlement, you could proceed with your application to arbitration. You will need to contact the Commission to have the matter relisted.

Your employer may ask you to sign a Deed of Release as part of a settlement of your claim. This is an enforceable legal document outlining what has been agreed to in the settlement. Commonly it will have terms where the employee agrees not to bring any further claims against the employer, and where both parties agree to keep the settlement confidential. You should get legal advice if you don't understand the terms of a deed.

What happens if my claim is not settled at conciliation?

If conciliation fails the Commission will arrange for your case to go to a formal hearing called an arbitration. The Commissioner's decision at arbitration is legally binding. Only a small percentage of claims proceed to a formal arbitration hearing in the IRC.

The arbitrated hearing is usually conducted by the same Commissioner who handled the conciliation proceedings unless you or your employer request that the matter be re-allocated to another Commissioner. It may be appropriate to make such a request if things have been said during the conciliation proceeding which lead you to think it would be better to have the arbitration conducted by a Commissioner with no pre-knowledge of the matter. You can only make such a request after conciliation has concluded but before an arbitration hearing has commenced. The best time to make the request is at the time that the Commission is setting a date for the arbitration hearing.

HOME PAGE