NSW FWC Conciliation Meeting Experiences

Discussion in 'Employment Law Forum' started by KidOctane, 24 January 2019.

  1. KidOctane

    KidOctane Active Member

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    Looks I am heading to a Conciliation meeting with FWC in a few weeks about my Unfair Dismissal claim, not a Genuine Redundancy. Has anyone else been through such a meeting ? If so, what where your experiences like ?? Anything tips or things you would have done differently or wish you had done/said ??

    Yes, I will have my employment lawyer with me and while I have received some briefing about what is to be expected it would be nice to get some other experiences and perspectives from a claimant. If it makes any difference, the case is against a top 20 ASX company.
     
  2. Taco Cat

    Taco Cat Well-Known Member

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    This is my opinion based on three conciliation hearings. I was without representation, so your experience may differ for that reason.

    The commissioner is your friend because it's their job to try and resolve, which tends to favour you. They're kind of like a subtly biased judge in your favour, as in they have an implied authority over the respondent that tends to lead to pushing for resolution. Listen carefully to what the commissioner says because they'll be hinting whether they think your case is strong or not.

    At some point they'll ask you to leave the room. Only you, not the respondents. This feels like you've been sent out of the classroom for being naughty, but this is the best bit where the negotiation is going to start. I'll assume here you want compensation and not your job back. After 5 minutes the commissioner will come out and say they've offered you $X. Feel free to discuss with the commissioner outside how much you should offer in return. Either the commissioner will shrug and not say anything, or more likely they'll suggest a number they can try for when they go back in. The commissioner is there to help resolve remember, so ask them anything you like. I've never negotiated face to face with the respondent, the Commissioner will move back and forth between the parties.

    This is the important thing for you to remember. If you think the likely agreed amount is fair, agree, gets the deed of release signed and move on with your life. However, don't feel pressured to settle, even if you don't want to go to court. The respondents may decide to low ball you to see if you'll proceed with a court application, but if they're served with one a few days later they'll increase their offer. It's up to you if you want to hold your nerve for a few days, submit the court application and serve it on them. There'll be other opportunities for conciliation so don't panic about having to settle at the first attempt.
     
  3. KidOctane

    KidOctane Active Member

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    Wow – thanks for the response, very comprehensive. Three times at the FWC, I am impressed. I get the impression you have a legal background ??

    My conciliation session is over the phone – I’d rather it be face to face as the phone is a little more impersonal (can’t read body language), but that’s the way it will be.

    So the session does not involve any direct discussion between the Claimant and the Respondent ? I was under the impression that all parties stated their cases collectively and then the Conciliator splits the parties. Would be a shame as I was looking forward to letting them know how shabbily (and unlawfully) their behaviour has been with the Conciliator listening on as well as them defending their position to the Conciliator.

    BTW I also was under the impression that these sessions are run by a Conciliator rather than a Commissioner as such.

    Thanks for the tips about going to court bluffing – its encouraging
     
  4. Taco Cat

    Taco Cat Well-Known Member

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    Only follow your representative's advice, not mine. But I'll focus on general points and psychology:

    If your claim is sound, the respondent will most likely want to settle at the phone conciliation. I've had some experience of phone conciliation, but not in the FWC. However in that instance it was as you describe: You state your case, they reply, the arbitrator then speaks to the parties separately and attempts to negotiate an agreed deal.

    I know you are angry about what happened to you. I am angry on your behalf as well! But keep your cool in the phone conference. It's not going to help get what you want. You only have one of two goals: Your job or dollars. Keep your focus on the prize.

    Decide before hand on the lowest amount you are prepared to accept unless you want your job back. If you want your job back you know what your goal is. This amount needs to consider whether you are prepared for the financial and emotional costs of going to court or the FWC again. I would ask myself this: If I settle for a reasonably low amount at the phone conciliation, will I wake up in ten years time wishing I had nailed the sh*ts to the wall at the Federal Circuit Court instead, or will I wake up in ten years time thinking I did well that day, I proved them wrong, I was compensated and I moved on to better things. As I said in my post above, there are other opportunities for conciliation with the advantage that you and the respondent will already know the amounts both sides were prepared to accept.

    Basically, their lawyers are thinking "is it going to cost my client more in legal fees at court than to just pay the applicant what they want"? Remember, even if they won at the Federal Circuit Court or FWC, they still couldn't charge you for their costs unless your case had zero chance of success. Do you have an okay case? If yes, no judge is going to make you pay their costs if you lost.

    Read up now on how any potential payout will be taxed. Why? Because there are lawful ways a settlement for damages is going to pay less tax than if you'd earned the money in the first place. You want to make sure as much as you can that your negotiated agreement is for an amount that is going to require the least amount of tax to be paid. Be proactive about this. Don't leave it up to their lawyer to unilaterally decide what they are going to tell the Tax Office.

    Remember to include an amount for superannuation as well as annual leave etc when you're deciding on your minimum acceptable amount.

    Have it agreed in any settlement, if you can, that your employer will give you a good written work reference and will agree to give good phone references. Have it specified in contract which senior employees are allowed to give out references. I don't mean it has to be your best buddy, I mean it puts a legal onus on the agreed senior employees to give you that good reference or risk you suing them for breach of contract. Having guaranteed good references from your employer is one of the major bonuses of legally binding settlements.
     
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  5. Rod

    Rod Lawyer
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    Taco has given good information. Though it is not a contract, it is a deed of settlement.
     
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  6. KidOctane

    KidOctane Active Member

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    Many Thanks again Taco

    So what I need to consider is that any additional compensation is to be treated as an eligible termination payment (with its favourable taxation treatment) against being paid as additional normal wages. Now if they do try to pay as wages then I should be asking for the applicable leave days as well as the super guarantee. ?? Interesting – how do you broach this subject at a conciliation meeting ?

    I am not that concerned about references ... with my specific situation
     
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