For an employer, it can be quite daunting to receive notice that a past or present employee has lodged a claim against you. Whether for wrongful dismissal or pay dispute, regardless of the claim, it's likely to bring on stress. Here's a brief outline of the Fair Work Process you should be aware of to ensure you can approach the situation calmly and effectively, should it ever arise.
The most important thing to understand from the outset is that the Fair Work Commission (FWC) does not immediately investigate the employer. While lodging a complaint is relatively easy and accessible, rest assured that all claims are rigorously tested to ensure a fair and reasonable resolution.
How the FWC complaints process works
Step 1 — Lodgement
The unfair dismissal application process in Australia is remarkably accessible. There's no fee high and eligibility hinges mostly on length of service and earnings thresholds. This means that the bar to apply is low and the fact that someone has lodged an application does not necessarily mean you've acted unlawfully. It means they're exercising a right and your job is to respond, not to panic.
Step 2 — Conciliation
Once a claim is lodged, the first formal step is a conciliation session. This is a confidential, without-prejudice discussion facilitated by a Fair Work conciliator and is designed to encourage both parties to resolve the matter without escalation.
During these sessions, the focus is on what is offered and accepted rather than what is demanded. Some lodgments can be resolved with a small payment, a reference letter or a mutual separation deed, all of which the conciliator will assist with. This may take time and it is important to stay calm and continue to approach the situation strategically.
Step 3 — Preliminary conference or directions hearing
If no agreement is reached at conciliation, the matter is typically listed for a preliminary conference or directions hearing before a Fair Work Commissioner. At this step, settlement is still encouraged. The Commission wants to avoid hearings where possible, and parties are given another opportunity to find a practical resolution.
A Commissioner is best placed to advise, based on the initial details of the claim, on whether you have a strong case and it can be beneficial at this stage to reach out to an expert for guidance.
Step 4 — Formal hearing
If no agreement is reached through either process, the matter proceeds to a formal hearing. Here, the Commission operates more like a traditional tribunal with both parties presenting their case including witnesses, documents and other evidence. Ultimately, the Commissioner will make a legally binding decision based on the evidence.
At this step it is about:
- Did you have a valid reason for dismissal?
- Was it procedurally fair?
- Were all steps handled in line with legislation and case law?
If you've followed robust processes, ensured fair treatment and maintained clear communication, you have every right to stand your ground.
What employers should keep in mind
- A claim is not a conviction, the Commission does not assume guilt or wrongdoing. It is simply providing a formal process.
- Unfair dismissal applications are relatively easy to lodge, which means some can be speculative. You do not have to rush into a payout just to make it go away.
- Settlement is considered risk management, but it is important to ensure it is a decision rather than a reaction.
- Seek representation if you're not confident navigating the process. It can be time-consuming and bringing in someone who can advise, guide and advocate on your behalf is the best way to avoid a quick, potentially regrettable, reaction.
How Gallagher can help
The Fair Work Commission is a forum for resolution that can feel daunting and complicated, but if you've acted fairly, followed process and documented well, then you're on solid ground. If a claim occurs, reach out to our expert team to get advice and clarity to handle the process with confidence.
