Exploring possible outcomes

If you come into a conciliation with just one position, it’s unlikely you’ll reach an agreement with the other side.

It’s more helpful to consider a range of options you would be willing to accept.

Be pragmatic, flexible and realistic, as resolution often involves compromise.

Click on the dial to explore possible outcomes.

If you come into a conciliation with just one position, it’s unlikely you’ll reach an agreement with the other side. It’s more helpful to consider a range of options you would be willing to accept. Be pragmatic, flexible and realistic, as resolution often involves compromise.

Click on the dial to explore possible outcomes.

Click to explore possible outcomes.

  • Reinstatement to work
  • Money or compensation
  • Resolving to move on
  • Protecting reputations
  • Other important issues

It is rare that the Commission decides that the employer must give the employee their job back.

If you’re considering offering or requesting a reinstatement to the workplace, it’s important to think about what may be involved, including whether any back pay will be paid.

You should also consider what a return to work would mean practically for both sides, including:

  • the impact on other team members
  • whether relationships have been affected by the dismissal or the time passed.

Payment of money is sometimes part of a settlement agreement, in a conciliation. If an amount is agreed to by the two sides, it tends to be around 4 weeks’ pay. This outcome takes around 5 weeks from when the application was lodged. The amount is taxed according to law and doesn’t attract a superannuation contribution.

It can be useful to think about what might happen if the matter doesn’t settle at conciliation, and a Commission Member later decides the dismissal was unfair:

  • the Commission Member might order compensation be paid to the employee, but this does not always happen
  • if they do order compensation, it tends to be around 6 weeks’ pay
  • this outcome generally takes months from the date the application is lodged, and will be published in a public decision on the Commission’s website
  • less than 1% of all applications result in an order for the maximum limit.

There are complex rules for calculating compensation. For example, a Commission Member may reduce the amount ordered if the employee earned any money after the dismissal — including any notice paid out, redundancy payments or workers compensation.

Is one of your goals to avoid the time, cost and effort of going to a formal conference or hearing?

Conciliation can help both sides achieve certainty over the outcome and resolve the matter quickly, without the need for a formal proceeding, long preparation, or a public decision — providing closure and allowing everyone to move on.

Most agreements include a release provision that prevents the employee from suing the employer again in relation to their employment or termination.

An employee may also decide to withdraw their application at any time before, during or after the conciliation. They may withdraw if the dispute is settled before or after the conciliation, if they decide to make a different application, or if they simply change their mind.

If the employee does decide to withdraw, the matter stops, and the Commission closes the case. We don’t publish a decision or order on our website if the case is closed before a Member decides whether the dismissal was unfair.

Both sides can agree to solutions that help protect their reputation like:

  • both sides agreeing not to publicly criticise or speak negatively about each other
  • no admissions being made of responsibility or liability on either side
  • the settlement agreement being confidential
  • agreeing for the termination to be considered a resignation
  • the employee receiving a statement of service.

Conciliation is not recorded, so there is no public record of the conciliation outcome or either side’s name.

One of the key benefits of conciliation is that you can agree to a wide range of non-financial outcomes that cannot be awarded in a hearing. Some common examples include:

  • changing the termination of employment to a resignation
  • a statement of service outlining basic information about the applicant's employment
  • an employment separation certificate
  • the return of property
  • an apology.

Each matter is different, and may resolve on terms unique to the dispute. Such outcomes may have significant value, despite not involving payment of money.