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What happens after I’ve filed a claim
The first step is that the Fair Work Commission will send a copy of your claim to your previous employer, and ask them to respond. A copy of their response will be sent to you.
Usually the next step is that the Commission will set up a time for a conciliation (generally telephone-based), and send both you and the employer details of that telephone conciliation. The goal for the telephone conciliation is that you and the employer reach agreement, and the claim is withdrawn.
If the conciliation doesn't resolve the unfair dismissal claim, then the Commission sets up a formal meeting – called a "conference" or a "hearing" – at which they will make a decision about your claim. Usually, parties are required to file and serve witness statements and submissions about their case.
If a member of the Fair Work Commission makes a determination about your claim after a conference or hearing, this is binding. A decision by the Fair Work Commission at this stage is usually the end of the process. There are some special situations where you or your previous employer can appeal a decision.
What is the conciliation?
The conciliation – generally telephone-based – is where the Fair Work Commission tries to get you and your employer to reach an agreement without the time, hassle and expense of a formal conference or hearing. It's a much more informal process. The conciliation is hosted by someone from the Fair Work Commission – the "conciliator". They are independent, and don't take sides – their role is to try to get you and your former employer to reach agreement.
Specifically, the Fair Work Commission says that the role of the conciliator is that they:
- Actively help the parties to reach a resolution
- May lead discussions and provide guidance
- May explore the issues
- May challenge views expressed, explore alternatives and comment on possible outcomes
- Do not represent or advocate for either employees or employers
- Do not give legal advice or make decisions.
There’s more information about how conciliation works on the Fair Work Commission’s website here:
Fair Work Commission Conciliation Fact Sheet
How long does the entire unfair dismissal process take?
Obviously, you need to file your claim inside the initial deadline, which is 21 days from the date your dismissal took effect.
While every claim is different, the Fair Work Commission does provide statistics on how long claims take on average.
Based on these statistics, most claims in the 12 months from July 2012 until June 2013 took less than 40 days from lodgement to conciliation.
More statistics on how long claims take on average can be found in the Fair Work Commission's Annual Report
Is there any risk that I will have to pay extra costs for lawyers?
The general position is that each party pays their own legal costs.
However, the Fair Work Commission can order you to pay your employer’s legal costs in specific circumstances. Those circumstances are:
- Where you caused costs to be incurred by your former employer because of your “unreasonable act or omission” in connection with the way you conduct your case, or the continuing of your case
- Where your claim was "vexatious" or "without reasonable cause" or
- Where you should have known your case had "no reasonable prospect of success"
This means that you could be ordered to pay costs where you make an application which is certain not to succeed, such as where you are not eligible to bring the claim under the Fair Work Act. It also means that you could be ordered to pay costs if you do not follow the directions of the Fair Work Commission, such as turning up to your conciliation.
One of the reasons to use the Slater and Gordon Online Unfair Dismissal Lawyers service is to minimize the risk of you making a claim that falls into one of these categories.
Is a settlement for unfair dismissal taxable?
We can’t provide you with taxation information.
For information about tax, we recommend that you seek advice from your accountant or financial advisor.
What does "settlement" involve?
Settlement simply means an agreement between you and your former employer, where you agree to end your claim for unfair dismissal, and they agree to do something in return. Slater and Gordon’s Online Unfair Dismissal Lawyers service includes an exclusive Guide that will help you better understand this process.
Will I have to sign anything at the end of the process?
Yes, if you reach an agreement to settle your claim. Slater and Gordon’s Online Unfair Dismissal Lawyers service includes an exclusive Guide to that will help you better understand this process.
What kind of documents will I need?
There are some documents you will need regardless of the reasons you were given for being dismissed. You should keep a copy of your original employment agreement, or appointment letter. You should also keep a copy of your letter of termination or dismissal.
The specific documents you may need will depend on the reasons you were dismissed, and the reasons why you think that dismissal was unfair. For example, if your former employer dismissed you because of poor performance, you might need copies of previous performance reviews (if these show satisfactory job performance), and copies of any previous warnings about unsatisfactory job performance.
Based on the answers you provide when using Slater and Gordon's Online Unfair Dismissal Lawyer service, we can give you advice about specific documents you should keep and have handy.
There are some documents that are likely to be useful regardless of the reason you think your dismissal was unfair, so if you can make sure you have copies of these, that’s a good start:
- Your Employment Contract, Letter of Appointment and/or any written variations to these documents
- Your letter of termination or dismissal
- A copy of any modern award or enterprise agreement that applies to you
- A recent payslip, and/or your final payslip
- Written Warnings, Records of Interview or Records of Counselling
- Performance Reviews
- Any relevant employer policies