A hearing or conference is the final stage of an unfair dismissal claim in the Fair Work Commission (FWC).  Generally before a claim reaches that stage, efforts to resolve the matter by conciliation will have taken place and been unsuccessful.

What is a hearing/ conference?

A hearing is a proceeding (it can be public), which results in a decision made on the unfair dismissal claim by a Member of the FWC.

Generally speaking there are a number of possible outcomes from the hearing:

  • The dismissal is found to be fair and the employee’s unfair dismissal claim is dismissed by the Member;
  • The dismissal is found to be unfair and the employee is reinstated in the old position;
  • The dismissal is found to be unfair and compensation is ordered (with reinstatement not appropriate);
  • The dismissal is found to be unfair but neither compensation nor reinstatement are appropriate; or
  • The matter is dismissed because the FWC does not have the power (or jurisdiction) to hear the matter.

Procedure

Prior to the hearing being allocated, both parties (Applicant and Respondent) should have submitted the following documents:

  • Outline of Arguments (Merits);
  • Statement(s) of Evidence including documentary evidence such as payslips, dismissal letter etc;
  • Document List; and
  • Outline of Argument.

At a hearing, each party will present its case before a member of the FWC, using the evidence set out in the Statements of Evidence, noting anyone who provided a witness statement to either an employee or employer should attend the hearing.  After both parties have presented their cases, a member of the FWC will consider all the evidence before him/her and will provide a written and legally binding decision.

It should be noted that the maximum amount any applicant can receive as compensation is 26 weeks pay.  If the employee/ applicant earned more than the high income threshold specified by the Fair Work Act 2009 (Cth) (Act), they are limited to half of the threshold.  In calculating compensation, the Act requires that the FWC take the following factors into account:

  • the amount the employee would have earned had they not been dismissed;
  • the steps the employee has taken to find a new position;
  • the length of the employee’s service;
  • any earnings the employee has had since their employment was terminated;
  • whether the employee contributed to their termination by any form of misconduct; and
  • the impact that paying the compensation will have on the employer’s business.

Costs

It is a general rule of thumb that each party to an unfair dismissal claim in the Fair Work Commission must usually pay their own costs.  However, the FWC does have power to order that one party pay some or all of the other parties costs if the application or response is considered to be frivolous or vexatious or has no reasonable prospect of success.

Conclusion

If you require any assistance in relation to an unfair dismissal hearing in the Fair Work Commission, please contact one of our employment lawyers today on 1300 544 755.

Emma Heuston

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