By David Bates

Around 15,000 unfair dismissal applications are filed against employers in the Fair Work Commission (FWC) each year. Once a claim is lodged, the employer is required to file a written response, and is then invited to take part in a telephone-based conciliation.

Too many employers take part in the conciliation without fully understanding what’s at stake. They arrive unprepared, and most (around 85%) end up agreeing to pay the employee a few thousand dollars of ‘go-away money’.

Here are some key things you need to know about unfair dismissal conciliations:

1. You don’t need to take part. Conciliations are voluntary, and you can ask the Commission to allocate the case directly to a Commissioner for arbitration if you prefer. This is a very good strategy if the employee wasn’t eligible to lodge the claim in the first place.

2. That’s right: matters are listed for conciliation even if the employee isn’t even eligible to lodge an unfair dismissal claim! For example, employees who have not completed the applicable ‘minimum employment period’ at the time of termination are not protected from unfair dismissal. In businesses with fewer than 15 employees, the minimum employment period is 12 months. In all other businesses, it’s six months.

3. The conciliation call – coupled with the written response you file in advance – represents your best opportunity to convince your ex-employee that their claim is bound to fail. You should put your best case forward with confidence and conviction. Be sure to challenge each and every one of the employee’s accusations and ‘set the record straight’.

4. The conference will be managed by an FWC-appointed conciliator, not a Commissioner. The conciliator cannot give legal advice, but they can explain the relative strengths and weaknesses of each side’s case. The best possible outcome for the employer is to have the conciliator explain to the ex-employee that their claim is very weak.

5. Remain calm, polite, and courteous. Your ex-employee is likely to say things that will make your blood boil, but don’t interrupt them and don’t ‘huff and puff’. You’ll get your turn to speak and - if you’ve stopped yourself from interrupting your ex-employee - a good conciliator will ensure the ex-employee isn’t allowed to interrupt you.

6. Don’t ‘settle’ unless you think it’s the best option. Too many employers agree to the employee’s first demand for payment, or agree to settle when they shouldn’t. Carefully weight up all your options before you commit to a settlement.

One final thing to note: you can appoint a representative if you prefer. He or she can speak on your behalf and can be a lawyer, paid agent, or anyone else you choose. Sometimes the cost of engaging an experienced advocate is well worth the investment.