Determinative conferences and hearings in sexual harassment disputes

If an application for an order to stop sexual harassment in connection with work has been made, the Commission may hold a determinative conference or hearing to decide the application. This might occur after a Member conference or before, depending on the issues involved in the case.

Consent arbitration between an applicant and respondent may also occur in a determinative conference or hearing. See Sexual harassment disputes that are not resolved.

If a Member holds a determinative conference or hearing they will consider matters such as whether:

• the applicant is eligible to apply to the Commission
• an aggrieved person has been sexually harassed in connection with work 
• (if an application for orders to stop sexual harassment) whether there is a risk that the aggrieved person will continue to be sexually harassed in connection with work .

Determinative conferences are less formal than hearings but still involve the Commission considering evidence submitted by each of the parties and making decisions. 

Determinative conferences are usually held in private and are limited to the parties involved in the dispute.  Representatives and support persons may also be permitted to attend a determinative conference. A determinative conference is different to an informal Member conference. Even though it is generally held in private, a determinative conference is recorded and transcript may be produced.

The Commission will publish its reasons for decision after a determinative conference on the Commission’s website (including the names of the parties, details of the allegations made against individuals and relevant witness evidence) unless a confidentiality order has been made.

A hearing is a more formal process than a determinative conference and involves the Commission hearing evidence from the people involved in the case, including witnesses, and making a decision. The Commission may inform itself in relation to a matter before it as it sees fit.

The Commission will only conduct a hearing if it considers it appropriate to do so. A hearing is usually open to the public and anyone can attend, unless a confidentiality order has been made.  This includes media and any other member of the public with an interest in the dispute.

After a hearing, a Member will make a decision. It usually takes between 5 and 12 weeks for the Commission to decide a case. If you need an urgent decision, you can ask the Commission for a quick (expedited*) hearing.

The Member’s decision will be published on the Commission’s website, unless a confidentiality order has been made.

The Commission will give the date and time of the determinative conference or hearing to everyone involved in the case. Attending and participating in a determinative conference or hearing is usually required by everyone who is a party in the case as well as any witnesses who have made a statement in the case. A witness statement may not be accepted by the Commission if the witness is not available to answer questions at the determinative conference or hearing.

You can ask to change the time or date of a determinative conference or hearing by contacting us in writing. You should ask us as early as possible before the scheduled date. You need an important reason to change (‘adjourn’) to a different day or time.

You must send a copy of your request to the other people in the case.  If it contains sensitive personal information, contact us about keeping the case confidential before you send the request. We may not agree to a request for an adjournment.

The Commission will also send the parties information about what they need to do to prepare for the determinative conference or hearing. This is usually in the form of ‘Directions’. This might include making a witness statement or preparing an outline of submissions and sending it to the Commission and the other people involved in the case by a fixed date and time. See Preparing for unfair dismissal hearings and conferences in the unfair dismissal benchbook for more information.

You can prepare for determinative conference or hearing by reading and printing out all the documents in the case. Make sure you bring them with you to the determinative conference or hearing.

Watch this video to learn about Representing yourself at a determinative conference or hearing (YouTube video).