The last few months have been hectic and stressful for everyone. Senior management and company owners have had to make quick business decisions to preserve cash and maintain their business, as a result staffing levels has been considered, and some tough decisions had to be made. As a result unfair dismissal claims made to Fair Work are on the rise.
I spoke with E.L Blue’s General Manager and seasoned ER professional, Greg Puttick, on what you should do if you receive a notification from Fair Work.
Don’t panic !! while the process is in essence adversarial, it can be considered more like a business negotiation process.
- When you hear from the Fair Work Commission you will receive a notification on an F2 form, this will state the claim against your business from the perspective of the dismissed ex-employee. You will also be advised that a conciliation discussion is scheduled.
- With this notification will be an F3 form, which is for you to document your response to the claim. You will be required to return this completed document to the commission prior to your conciliation meeting. It is important to complete the F3 in as much detail as possible including your facts around the dismissal, the process you took, actions undertaken, and any outcomes of those actions prior to the dismissal. This is your first chance to make your case so it’s important to take some time to both rebut the ex-employees claims and put forward your own side of the story.
- A telephone conciliation hearing will be scheduled and both parties will be involved in trying to come to a point of agreement on a settlement. This step in most cases is more in line with a commercial negotiation to reach terms of settlement, and the sum to be paid by the employer. In rare cases, ex-employees are looking to be reinstated. This is the point where the Fair Work Commission is really looking for both parties to come to terms.
- In the event that you are unable to come to terms during the conciliation hearing, the next step is to have the case heard before the Commission itself. You should seriously consider professional or legal support for this stage. The Commissioner will quite often try and resolve the matter by agreement, i.e. conciliation again, at this stage if they think that is possible.
- If a settlement is still not agreed in this hearing, the case will go to arbitration. This is similar to a court proceeding and is where you will need professional and or legal support. The final decision when the matter goes to arbitration is made by the Commissioner after hearing the evidence of both parties. Given that this part of the process should include legal professionals, it can become quite expensive.
It is important to ensure that when an agreement is reached, that the employer receives a Deed of Release, this ensures there are no second bites of the apple.
The big question for employers is around the value of the settlement. While many factors influence the amount of the settlement and the maximum is 6 months wages, based on the Fair Work statistics the majority of payments are between $2,000 – $16,000. Based on the Fair Work Commission statistics, approximately 95% of cases involve a settlement payment.
Realistically an employer should be prepared to make a commercial decision and consider settling during the conciliation period.
Puttick commented that “E.L Blue usually manages to keep our clients out of the Fair Work Commission, In the rare instances where our client does have a hearing the service offering includes helping our clients through the process to achieve the best possible outcome.”
 Fair Work Commission, Annual Report 2018-2019, Appendix D, Table D2. (https://www.transparency.gov.au/annual-reports/fair-work-commission/reporting-year/2018-2019-38)