Losing your job is incredibly stressful. Facing a formal conciliation can feel confusing and intimidating. This guide is designed to change that. We’ll demystify the process and give you a clear, actionable plan to fight for the fair outcome you deserve.
The stakes are real – but so are your chances of success. Around 78% of unfair dismissal cases resolve successfully at conciliation, and with proper preparation, you can be among them. Whether you’re seeking compensation, reinstatement, or simply want your record set straight, this comprehensive guide will equip you with everything you need to know.
What are the Outcomes of Conciliation?
Let’s be clear from the start: conciliation is a negotiation, not a court battle. The conciliator is neutral, they’re not there to judge who’s right or wrong, but to help you and your former employer find common ground. Think of them as a skilled facilitator whose job is to guide the conversation toward a resolution that works for everyone.
The beauty of conciliation lies in its flexibility. Unlike a formal hearing where outcomes are strictly controlled by law, conciliation allows for any outcome both parties agree to. Here are the main outcomes you can achieve:
Financial Compensation
This is the most common outcome, with the median settlement sitting at $8,704. However, don’t let that average fool you, settlements range from 1 week’s wage or up to the lower of either half of the employee’s annual wage or the compensation cap, which is $91,550 for dismissals occurring on or after July 1, 2025. (Compensation cap | Fair Work Commission)
Your compensation will depend on factors like:
- Length of your employment
- Your salary level
- How unfair the dismissal was
- Your efforts to find new work
- The strength of your case
Job Reinstatement
Getting your job back is possible, though it’s quite rare in practice. Most people don’t actually want to return after being unfairly dismissed – and for good reason. The employment relationship often needs to be salvageable for this to work. However, if you genuinely want your position back and the working relationship can be repaired, reinstatement remains an option.
A Written Apology
Sometimes acknowledgment of wrongdoing matters more than money. A sincere written apology can be incredibly valuable, especially when combined with other remedies. It validates your experience and can provide the closure you need to move forward.
However, it is unlikely that an employer will offer this.
A Neutral Statement of Service / Reference
Unfortunately, where there has been a dismissal, a reference is not often accepted as a settlement item in an unfair dismissal negotiation.
However, a statement of service is very commonly negotiated. It is a one page document which outlines your role, responsibilities, and period of employment. It is purely factual and contains neutral language. Depending on what you negotiate, you may wish for the statement of service to say that you resigned instead of being dismissed.
Having the Dismissal Reclassified as a Resignation
This might be the most valuable non-monetary outcome you can achieve. Converting your termination to a resignation is extremely common in settlements and removes the stigma of being “fired” from your employment record. Future employers will see that you resigned rather than were dismissed.
How to Prepare for Conciliation
Success loves preparation. Here’s your 4-step battle plan that will put you in the strongest possible position.
Step 1: Gather Your Arsenal (Evidence)
Documentation is your best friend in conciliation. You need to build a comprehensive file that tells your story clearly and supports your case. Here’s what to collect:
Essential Documents:
- Your employment contract and job description
- Performance reviews and any commendations
- Email correspondence about your performance or conduct
- The dismissal letter and any related communications
- Pay slips from your last few months
- Any disciplinary warnings or improvement plans
- Evidence of the process (or lack thereof) leading to your dismissal
- Records of your attempts to find new employment
Your Evidence Gathering Checklist:
- Chronological timeline of events leading to dismissal
- Screenshots of relevant emails or messages
- Names and contact details of potential witnesses
- Documentation of any workplace policies that weren’t followed
- Records of any discrimination or unfair treatment
- Evidence of your good work performance
Remember, you need to be prepared to reference these documents during the conciliation, so organise them logically and know where to find specific information quickly.
Step 2: Calculate Your Target (Settlement Goal)
Please note that in almost all cases, 6 months is not a viable or realistic goal. Even though in the unfair dismissal jurisdiction the compensation cap is 6 months, settlement amounts vary wildly, but 75% of cases settle for under $10,000.
You need to walk into conciliation knowing exactly what you want to achieve. Here’s how to calculate your realistic target:
Financial Losses to Consider:
- Lost wages from termination to now.
- Notice pay you should have received (if you did not receive it).
The Sprigg Formula (used by Fair Work Commission for compensation calculations):
- Estimate what you would have earned if not dismissed
- Deduct any money earned since dismissal
- Consider contingencies (like likelihood of finding work)
- Account for taxation implications
Your Settlement Goal Worksheet:
- Ideal outcome: What would make you completely satisfied?
- Realistic target: What’s reasonable given your circumstances?
- Minimum acceptable: What’s the lowest you’d accept to avoid a hearing?
- Non-monetary priorities: Statement of service? Apology? Reference?
Other considerations:
In unfair dismissal cases, you cannot ask for hurt, distress and humiliation compensation.
If your case goes to hearing, the details of your dismissal will become public. Therefore, consider the minimum acceptable seriously.
Step 3: Craft Your Story (Opening Statement)
Your opening statement is crucial, it’s often the first time your employer hears your full perspective. This isn’t about attacking your former employer; it’s about clearly explaining why your dismissal was unfair and what you want to achieve.
The 3-Part Opening Statement Template:
Part 1: The Facts (What Happened)
- Brief overview of your employment (role, duration, performance)
- Chronological sequence of events leading to dismissal
- Key procedural failures or unfair treatment
- How the dismissal affected you personally and professionally
Part 2: The Unfairness (Why It Matters)
- Focus on whether there was a valid reason for the dismissal and procedural fairness.
- Specific ways the dismissal was harsh, unjust, or unreasonable
- Workplace policies or procedures that weren’t followed
- Lack of warnings, investigation, or opportunity to respond
- Disproportionate punishment for any alleged issues
Unfortunately, unfair dismissal cases are not about feelings, there are about facts. Try to focus on the facts of the case and not why you feel it is unfair. It is this factor that most unrepresented employees fail in getting themselves a fair settlement.
Part 3: The Resolution (What You Want)
- Your preferred outcome (compensation, reinstatement, etc.)
- Why this resolution is reasonable and fair
- Your commitment to resolving the matter today if possible
Key Tips for Your Opening Statement:
- Keep it to 2-3 minutes when spoken aloud
- Stick to facts, not emotions (though acknowledge the impact)
- Be respectful but firm about the unfairness
- End on a forward-looking, solution-focused note
Step 4: Know Your Opponent
Understanding your former employer’s likely position will help you negotiate more effectively. Most employers want to resolve unfair dismissal claims quickly and quietly to avoid:
- Legal costs of defending a hearing
- Management time spent on the dispute
- Potential negative publicity
- Risk of a larger compensation order
- Disruption to remaining staff
Common Employer Positions:
- “The dismissal was fair and justified”
- “Proper processes were followed”
- “The employee’s performance/conduct warranted dismissal”
- “We’re willing to settle to avoid costs, but don’t admit wrongdoing”
Employer Pressure Points:
- Time and cost: Defending a hearing is expensive
- Certainty: Settlement provides closure and finality
- Reputation: Public hearings can damage their standing
- Precedent: They don’t want to encourage other claims
What to Expect at Conciliation
Here’s your play-by-play guide to conciliation day, so you know exactly what’s coming and can perform at your best.
The Room: Who Will Be There
Most conciliations happen by teleconference call without video, lasting up to 90 minutes. You’ll typically find:
On Your Side:
- You (the applicant)
- Your representative (lawyer, union official, or support person) if you have one
- Family member or friend for support (with permission)
On Their Side:
- Company representative (usually HR manager or senior manager)
- Their lawyer or employment advisor
- Sometimes the actual decision-maker who dismissed you
The Conciliator:
- Fair Work Commission staff member
- Trained in mediation and employment law
- Neutral facilitator (not a decision-maker)
- Cannot provide legal advice to either party
The Stages: What Happens When
1. Introductions & Ground Rules (First 10 minutes)
The conciliator will:
- Welcome everyone and confirm who’s participating
- Explain their role and the process
- Set ground rules (confidentiality, respectful behaviour, one person speaks at a time)
- Confirm everyone’s authority to settle the matter
- Address any procedural questions
What You Should Do:
- Confirm you can hear everyone clearly
- Have your documents organised and ready
- Take notes throughout the process
- Stay calm and professional
2. Opening Statements (Next 20-30 minutes)
You’ll go first as the applicant. This is your moment to present your case clearly and persuasively. Remember:
- Stick to your prepared 3-part structure
- Speak directly to your former employer, not just the conciliator
Be respectful but don’t downplay the unfairness
- Reference specific documents or evidence when relevant
After you speak, your employer will respond with their version of events. This can be difficult to hear, especially if they say things you disagree with. Stay calm and take notes, you’ll have opportunities to respond later.
Both parties are afforded the opportunity to speak without interruption.
3. Private Sessions (Caucus) – The Heart of Negotiation
This is where the real work happens. The conciliator will speak with each side privately, often going back and forth multiple times.
In your private session, the conciliator might:
- Test the strength of your case honestly
- Explore what outcomes you’d accept
- Help you understand the employer’s position
- Suggest negotiation strategies
- Reality-check your expectations
Be prepared to:
- Discuss your bottom line confidentially
- Consider compromise positions
- Respond to the employer’s offers
- Ask questions about their proposals
4. Reaching a Deal (or Not)
If successful, you’ll come back together to finalise terms. The conciliator or the employer’s solicitor may draft a settlement agreement covering:
- Any money to be paid (amount, timing, tax treatment)
- Non-monetary outcomes (references, apologies, etc.)
- Confidentiality and non-disparagement clauses
- Release of all claims related to your employment
- How to implement the agreement
Your Conciliation Day Dos & Don’ts Checklist
DOs:
- Arrive early and test your technology if it’s a phone/video call
- Bring all your documents organised in a logical order
- Listen actively to what the other side is saying
- Be prepared to negotiate – your first offer likely won’t be accepted
- Stay professional even if you hear things that upset you
- Ask questions if you don’t understand something
- Consider all offers seriously – some may be better than they first appear
- Take breaks if you need time to think or consult with supporters
DON’Ts:
- Don’t interrupt when others are speaking
- Don’t get emotional or angry – it undermines your credibility
- Don’t reject offers immediately – ask for time to consider
- Don’t agree to anything you don’t understand – seek clarification
- Don’t bad-mouth individuals – focus on the unfair process
- Don’t reveal your absolute bottom line early in negotiations
- Don’t drive during the conciliation – you need to focus completely
- Don’t sign anything on the spot – you usually get time to review
Is a Conciliation Settlement Binding?
Yes, absolutely. If you reach an agreement, you’ll be asked to sign a ‘Deed of Settlement’ or ‘Terms of Agreement’. This is a legally binding contract. Once signed, the matter is over – you can’t change your mind later or pursue the claim further.
Key elements of most settlement agreements:
- Payment terms: Exactly how much, when, and how it’s paid and taxed
- Release clauses: You agree not to sue for anything related to your employment
- Confidentiality: Neither party can discuss the terms publicly
- Non-disparagement: You both agree not to speak negatively about each other
- Implementation: Specific steps each party must take
- Enforcement: What happens if someone doesn’t honour the agreement
Before You Sign – Critical Checklist:
- Do you understand every clause and its implications?
- Are you satisfied with the compensation and other terms?
- Have you considered whether you’re owed other entitlements not covered?
- Do the confidentiality and non-disparagement clauses work for you?
- Are the payment terms acceptable (amount, timing, tax treatment)?
What Happens if a Matter Does Not Settle at Conciliation?
This is not a ‘loss’ – it’s the next step. The matter will continue onto the next phase.
Your options after failed conciliation:
- Proceed to a formal hearing – A Fair Work Commission member will hear evidence and make a binding decision
- Supplementary conference- if the parties are close to a settlement but ran out of time, the Fair Work Commission will likely set a time for a further conciliation
- Continue negotiating privately – Sometimes parties reach agreement after conciliation
- Withdraw your claim – If you decide the fight isn’t worth continuing
- Seek legal representation – If you weren’t represented before, now might be the time
Reality check about hearings:
- Only 2-3% of unfair dismissal claims proceed to formal hearings
- Hearings are more formal, time-consuming, stressful and published for the public
- You’ll need to present evidence and witnesses
- The outcome is entirely in the hands of the Commission member
- You might win nothing, or you might win more than the settlement offer
- Legal costs can mount up quickly
Your Next Step is Critical. Don’t Take it Alone.
If your conciliation didn’t resolve, or if you want to ensure you’re perfectly prepared to get the best possible outcome, the stakes are now higher. Navigating the next phase requires expert legal strategy.
The numbers don’t lie: While 78% of cases settle at conciliation, those that don’t face an uncertain future. Less than 1% of all unfair dismissal claims result in a formal judgment, and employee success rates at hearing vary significantly depending on case preparation and representation.
You’ve got three critical windows:
- Pre-conciliation: Get expert advice on your case strength and strategy
- Post-conciliation: Evaluate settlement offers and hearing prospects
- Pre-hearing: Professional representation becomes crucial for success
The investment in expert legal advice often pays for itself through better outcomes, whether that’s a higher settlement or avoiding a costly hearing you’re unlikely to win.
The reality is simple: Employment law is complex, Fair Work Commission procedures are technical, and employers usually have experienced legal teams. You shouldn’t face this alone.
Contact Fair Workplace Solutions. We’ve guided hundreds of Australians through successful unfair dismissal claims. Our experienced employment lawyers will:
- Assess your case strength honestly – not all dismissals are worth pursuing
- Calculate your realistic settlement range – know what you should be aiming for
- Identify your strongest arguments – focus on what matters most
- Develop your negotiation strategy – maximise your chances of success
- Prepare you for every scenario – conciliation, settlement, or hearing
- Discuss other options such as appeal if necessary
Don’t let uncertainty hold you back. Your future career and financial security are too important to leave to chance.
PLEASE NOTE: This article is not legal advice and is not intended to supplement or replace legal advice. The below is general information and should not be relied upon to determine your prospects of success. Each case varies according to your specific circumstances and therefore, it is recommended to seek legal advice specific to your matter.