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

4. THE NSW SYSTEM (continued)

4.7 Arbitration

Before the arbitration hearing the Commissioner will give directions to the parties covering the following matters:

Witnesses

You will need to tell the Commissioner how many witnesses you will be calling to give evidence. Some witnesses may be reluctant to appear before the Commission, particularly people who are still working for your former employer. If you need their evidence to support your claim, you should ask for reluctant witnesses to be summoned to appear at the hearing. A summons or subpoena to give evidence, is a formal document which orders the person to attend a hearing. Registry staff will be able to help you with this. Often you will be the only witness. Usually there is no benefit requiring reluctant witnesses to attend unless they are essential to prove your case.

Statements to be filed

In most cases the Commissioner will require that the evidence to be presented at the hearing is provided beforehand in writing. Evidence may be required in a special format called an affidavit (this is a statement of evidence that must be sworn or affirmed before a lawyer or Justice of the Peace, like a statutory declaration) or in the form of a signed statement, or sometimes in the form of a short summary of the evidence you and your witnesses will give orally at the hearing. It is not necessary to file written material unless the Commission directs you to. If you are directed to file witness statements or affidavits, you will be given a date by which the documents must be filed at the IRC and copies served on the employer.

Documents

If you require documents from your employer or some other person, you can ask the Commissioner to give directions that the employer produce the documents by a certain date or you can file a summons or subpoena for the production of documents, ordering the document to be brought to the IRC by a certain date before the hearing. Registry staff will be able to help you with this. Sometimes it is possible to come to an informal agreement with your employer to exchange any required documents by a certain date without having to issue a summons.

Jurisdictional issues

Your employer may raise jurisdictional issues, that is, issues about whether the Commission can or should hear your claim because of some alleged defect in your claim. The employer may claim that you are not covered by the legislation because you fall into one of the categories of workers who are excluded, for example, probationers, (see 4.4. Who cannot make an unfair dismissal claim in the NSW system?) or that your claim is out of time. If you dispute the matters raised by your employer, the issue will usually be considered at the formal hearing, not at the conciliation conference or directions hearing. If jurisdictional matters are raised, it is important to get legal advice before the hearing to ensure that you can establish your eligibility before the Commission.

Generally the IRC will not impose detailed procedures for providing your case in writing if you are unrepresented, but this may depend on how complex your case is. The Commissioner will aim to ensure both parties have access to enough information from the other so that each can prepare their case.

The hearing

Although the IRC isn't bound to conduct formal hearings or to use the formal rules of evidence and admissibility of evidence, arbitration hearings are nevertheless conducted formally with the presentation of evidence and cross-examining of witnesses.

You are required to sit with your representative (if you have one) until you are called to give your account of what happened. You will give your evidence orally under oath. Either you or your representative can then call any other witnesses to give evidence in support of your case. Your employer or their legal representative will be able to cross examine (question) you and any of your witnesses. Your employer and any of their witnesses will then give their evidence, and you or your legal representative will be able to cross examine them. Cross-examination of witnesses occurs immediately after the witness has given their evidence.

Both you and your employer will be given an opportunity to present evidence by 'tendering' documents. After all the evidence has been presented, you or your representative can make a closing submission summing up the most important points in your case.

After hearing all the evidence and submissions, the Commissioner will then decide whether your dismissal was harsh, unreasonable or unjust (see 4.1 - What is unfair dismissal in the NSW system?).

The IRC can order a number of different remedies, detailed in section 4.8 Remedies: what orders can the IRC make?.

The Commissioner's decision is legally binding although either party can appeal (see section 4.8 What if I am not satisfied with the IRC's decision?).