Reading time: 3 minutes

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.

Webinars

Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

Online
If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Online
Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Online
Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Online
Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Online
Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Online
Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Online
Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

Online
As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards