If an unfair dismissal case settles at conciliation, the outcome can be whatever you and the other party agree to.
If a case proceeds to a conference or hearing and the dismissal is found to be unfair, the only possible remedies are:
- compensation for lost wages (must not be more than 26 weeks’ pay).
Conciliation settlement agreements
If you choose to participate in conciliation, a Commission Conciliator will hold discussions between the employee and the employer to reach an agreed settlement. Most applications for unfair dismissal remedy settle at conciliation.
The conciliations are private, and the settlements may include:
- reinstatement (getting the job back)
- continuity (an order that it should be as though the dismissal did not take place)
- monetary settlement (eg lost pay or compensation)
- a statement of service (stating how long the employee worked for the employer and what they did)
- payment of owed entitlements
- an apology
- a non-disparagement agreement (where neither party can bad-mouth the other).
Remedies at conferences & hearings
If the application is not resolved at conciliation, the case will proceed to a conference or hearing before a Commission Member.
The Member who hears the case will consider all of the factors listed below. If they are then satisfied that the employee was unfairly dismissed, they may order:
- reinstatement (getting the job back), together with continuity of service and lost pay, taking into account what the employee was likely to have earned, or
- compensation for lost wages (must not be more than 26 weeks' pay, and cannot include compensation for shock, distress or humiliation).
In considering the application, the Member must take into account:
- whether or not there was a valid reason for the dismissal related to the employee's capacity or conduct
- whether or not the employee was notified of that reason
- whether or not they were given an opportunity to respond to that reason
- any unreasonable refusal by the employer to allow the employee a support person present to assist at any discussions relating to the dismissal
- if the dismissal related to unsatisfactory performance, whether or not the employee had been warned about that unsatisfactory performance before they were dismissed
- the degree to which the size of the employer's enterprise would be likely to affect the procedures followed when the employee wasdismissed
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise affected the procedures followed when the employee was dismissed, and
- any other matters that the Commission considers relevant.
Results & outcomes
The Commission reports annually on unfair dismissal results and outcomes in our annual report. The annual report, which is tabled in the Australian Parliament each year, is the official statistical record of Commission activities.
Unfair dismissal results data for 2018–19 is located in Tables D1 to D9 of Appendix D: Tables and figures reference data.
Reports from previous years are available from the Annual Reports page.
It is important to note that this information cannot be used to predict the outcome of any particular matter, as the facts and circumstances of each case will be different.