Step by step guide – Going to Conciliation

The conciliator will telephone you on the number you have given to the Fair Work Commission (the Commission). Make sure that you can be reached on that number at the time you arranged and that your telephone is charged.

You should be in a place where you can have a private conversation without being interrupted. You might need to arrange childcare, put pets outside and turn off other telephones to make sure you can talk without being distracted.

The conciliation will last for 90 minutes or more. Make sure you have set aside that time

The usual process is:

1. The conciliator phones all the people involved, including any representatives.
2. The conciliator explains the process and the role of the conciliator. They will ask the parties to agree to some ground rules (for example that no one will interrupt or talk over each other).
3. The conciliator will ask you to talk about what happened and what your application is about. If you made the application, you are called 'the applicant'.
4. Your employer (the respondent) will then give their version of what happened and explain their response. If your employer says that your are not eligible to make an unfair dismissal application, the conciliator will ask your employer to explain why. A representative may speak for your employer or both your employer and their representative may speak.
5. The conciliator may ask you and your employer some questions and discuss the case with both of you.
6. The conciliator will have a private session talking to each party separately (usually starting with you).
7. The conciliator will help you and your employer to agree on a way to end the dispute. The conciliator may go back and forth between you and your employer or may bring everyone back together to talk.
8. If you come to an agreement, the conciliator can help you to put this into writing (often called 'Terms of Settlement').

Here are some suggestions for how to communicate during conciliation:

• Explain things clearly and simply.
  Try to explain what happened in a clear order. A chronology (list of what happened in date order) may help with this. For information on how to prepare a chronology, see How to write a chronology, in Unfair Dismissal.  To see what a chronology could look like, see Sample - Chronology.
• Talk about the things that you have decided are important. 
  When it is your time to talk, focus on the issues you have decided are important. Don't get sidetracked by things that happened a long time ago and are not part of why you were dismissed. 
  
• Try to keep calm. 
  People will hear and understand you better if you stay calm. Sometimes this can be difficult if you or your employer are discussing your employment history and performance. If you are getting upset or feel angry, you can ask the conciliator for a break. 
  
• Be understanding if the other party gets upset. 
  Everyone finds disagreements difficult. Treat everyone else the way you would like to be treated. 
  
• Listen carefully. 
  Listen carefully to what the employer says. This is your chance to hear their side of the story. Listen carefully to the conciliator. They may give you helpful information about your case and how you could settle it. You may want to take notes (or ask your support person to take notes). 
  
• Ask questions 
  If you don't understand something, or you are not sure if you have understood, wait until the person speaking has finished and then ask a question. If you are worried you will forget your question, write it down. 
  
• Wait your turn to talk. 
  The conciliator's job is to make sure everyone gets a chance to talk. You will have a chance to say the things you want to say after the other party or the conciliator has finished speaking.

If you and your employer can agree about how to end the dispute, the conciliator will suggest you put this agreement in writing. You can either use a Deed of Release or a Terms of Agreement.

The Commission may provide you with a Terms of Agreement document to complete and sign. Sometimes your employer may ask to use a Deed of Release instead of Terms of Settlement/Agreement. A Deed of Release is another type of legal document that sets out how you will end the dispute. For more information, see D​eeds of release.

The Terms of Agreement or Deed of Release will usually settle all claims between you and your employer. Before you sign anything, you should be sure that you are not owed any other money or entitlements by your employer. For example, annual leave payments, underpaid wages, long service leave or money for injury claims. If you are owed money or are considering making a claim about an injury, it is possible to write a settlement agreement that only settles the dismissal claim and leaves you the option of making other claims.

You should get legal advice before signing Terms of Agreement or a Deed of Release so that you understand how it will affect you. You should also get advice about whether the Terms of Agreement or Deed of Release will affect your rights to make other claims.

• Sample: Deed of Release.

Once an agreement has been made and both sides have done what they agreed to do, you should file a Notice of Discontinuance. This tells the Commission that you do not want to continue with your application. The Commission usually refunds your application fee if your case settles before a hearing.

You should not file a Notice of Discontinuance (a form that closes your case) with the Commission until your employer has done what they agreed to do in the settlement agreement (for example, paid you the agreed settlement amount).

If your employer does not do what it agreed to in the agreement, it is possible to take steps to enforce the agreement. For more information, see Enforcing agreements, in Unfair Dismissal

If you do not come to an agreement, the next step is to have a hearing.

For more information, see the Hearing, in Unfair Dismissal.