Unfair dismissal (“UFD”) occurs when an employee is dismissed in a harsh, unjust, or unreasonable manner. Employees have legal protections against unfair dismissal and can lodge claims with a Federal Government agency, the Fair Work Commission (“FWC”).

Employees (Applicants) must qualify to make a claim against criteria in the Fair Work Act 2009 (Cth) (“The Act”) all claims must be lodged within 21 days from the effective date of the dismissal, this includes weekends.

Claims run through 2 very different stages: firstly a ‘Conciliation Conference’ (“Conciliation”), and then at an ‘Arbitrated hearing’ (“Arbitration”). Conciliations are usually conducted via audio only teams’ meetings, between the following 3 groups of people.

1. A conciliator from the FWC.

2. Your ex-employer and their lawyers or representative, and

3. A representative from Law on Lydiard, and you.

The Conciliation stage allows us to present structured legal arguments as to why your dismissal was unfair. Conciliations take place approx. 4 weeks after we lodge your claim and are scheduled to run for 90 mins.

The final Arbitration stage is just like going to court before a Judge, the process is very formal, it can be expensive and take many months to get an outcome. You need to attend in person, there can be multiple witnesses called on both sides, and you will likely be cross-examined, often by lawyers or barristers, the hearings themselves can be set down for 1-3 days.

At Conciliation, most Applicants ask for financial compensation, they want their name cleared by having the termination reversed to a resignation and an enhanced statement of service. Unless you have highly unusual circumstances, we usually begin by asking for between 8 – 12 weeks’ average pay as the financial remedy, most claims settle between 5-8 weeks’ pay.

If you proceed to Arbitration and win, the maximum compensation that can be awarded is the equivalent of 26 weeks’ pay to the current legislated maximum of $83,750, however, the median outcomes are similar to the results achieved at Conciliation.

Given the above and considering the additional time and costs involved in taking a claim through Arbitration, it is almost never worth running a claim past Conciliation if your primary reason for making the claim was the overall financial outcome.

Unfortunately, there are no guarantees, however, based on our past results, the likelihood of getting your name cleared and winning some level of financial compensation is very high, our current win rate from our last 500 claims is over 90%.

The FWC does not examine evidence, nor can it make binding judgments against either party through the Conciliation process; their role is to assist parties in settling the dispute before them, neither we nor the FWC can control any of the following.

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If your ex-employer objects to the Conciliation taking place.

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How your ex-employer will behave at the Conciliation.

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What your ex-employer may say about you before or at the Conciliation.

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How much if anything your ex-employer will offer by way of compensation or other remedy items.

1. We complete an assessment to determine if you qualify to make a claim as per criteria of The Fair Work Act 2009 (cth).

2. If you qualify, and have a strong argument, we will send you an offer to run the claim on a ‘NO WIN – NO FEE’ basis.

3. If you qualify, but, in our opinion, do not have a strong argument, we may still offer to assist you but not on a ‘NO WIN – NO FEE’ basis, on a fee for service or ‘pay upfront’ basis.

4. When you accept our offer, our associated law firm Law on Lydiard will start the process to lodge with the FWC.

5. When the FWC receive our lodgment (F2) they will write to your ex-employer for their response / defense (F3). The FWC also inform your ex- employer of the time and date of your Conciliation, sometimes the date must be moved for various reasons.

6. If we receive information after we have started the claims process, that makes us believe you no longer have a strong argument, or that you may have misled us, we reserve our right to cease to act for you.

7. We email you a copy of your ex-employers’ F3 response so you can make comments as to their version of events.

8. Your representative will call you prior to your Conciliation, they will talk you through the process and ask any final questions as required for prosecuting your claim.

9. You must be present and available for a max of 2 hours at the allocated start time of your Conciliation, the FWC conciliator will explain the process to all parties at the start, all persons must follow their instructions.

10. When the Conciliation is concluded, and a settlement is agreed, a ‘settlement deed’ will be produced to reflect the agreed terms. We will either sign this deed on your behalf, or, if required, we will send it to you to sign and return it to us.

• We only offer our services on our ‘NO WIN - NO FEE’ terms through Conciliation. Any other work you ask us to complete will be charged at an hourly rate of $495 (inc GST).

• Unless a financial settlement is paid as a ‘genuine’ redundancy your ex-employer will usually deduct tax, the most common tax rate used is an ETP which is 32%.

• We offer our services in association with our chosen law firm ‘Law on Lydiard’.

• Your claim will be lodged by, and you will be represented by a closely regulated law firm. The Principal Lawyer of this practice, Mr. Paul Cott, has an unrestricted (highest category) Practicing Certificate.

• All settlements are distributed to a regulated legal trust account, you are in very safe hands!