A conciliation is a discussion between the employee and employer (the ‘parties’). Two outcomes are possible at a conciliation. If it is successful, the parties reach an agreement. This happens in about 75% of cases.
1. Parties agree to a settlement
If the parties agree to a settlement:
- the conciliator writes the agreement with the 'terms of settlement' for the parties to sign OR
- the parties write the agreement themselves and sign it.
The settlement creates a legal contract between the parties.
If the conciliator writes the agreement, both sides should review it before they sign. It is important that they are satisfied it reflects their agreement.
The outcome can be whatever the parties agree to. Examples of settlements are:
- an apology
- the employer allows the employee to resign
- the employer gives the employee their job back (‘reinstatement’)
- the employee's employment continues as it did before (‘continuity of service’)
- the employer pays the entitlements they owe the employee
- financial settlement
- the employer provides a ‘statement of service’
- both parties agree to keep the details confidential and not criticise the other (‘non-disparagement agreement’)
- both parties agree, where the law allows, that they will not take any other actions against the other party (‘release agreement’).
After the settlement
After the parties reach an agreement, the case is closed. The parties need to:
- sign the terms and give each other a signed copy
- do what they said they would do in the agreement.
Employers and employees usually have a ‘cooling off’ period if they did not have a lawyer or paid agent at conciliation. This is for 3 business days after the conciliation discussion. During this time, either side can change their mind and opt out of the agreement.
If a party opts out of the agreement during the cooling off period, the employee may wish to continue with their claim. The case will continue to a formal hearing or conference.
2. Parties do not agree to a settlement
The conciliator tries to help the parties reach an agreement, but this is not always possible. If the parties do not settle, the case continues to a formal hearing or conference. Both parties need to prepare evidence so the Commission Member can make a decision about the case.