Hearing - Unfair dismissal
What is a hearing?
If you cannot come to an agreement at conciliation, the next step is a hearing. A hearing date will be set on a different day, usually several months after the conciliation has taken place. A hearing is where you and the employer each present your side of the story to the Fair Work Commission (the Commission) and ask it to make a decision about your case.
If your employer has claimed that you are not able to make an unfair dismissal application, and you were unable to resolve this issue at conciliation, there may be a separate 'jurisdictional hearing' about whether the Commission is able to consider your case. This may happen:
- before the main hearing
- at the same time as the main hearing, or
- 'on the papers', this means that you send documents to the Commission to consider and there is no face to face hearing
After the jurisdictional hearing, the Commission may:
- dismiss your application if you are not eligible to apply. For more information, see
Can you apply?
- decide that you are eligible to apply and continue with a hearing. The Commission may hear the case on the same day or on another day. In some cases, the Commission may give you and your employer some time to try and negotiate the case.
A jurisdictional hearing is run the same as any other type of hearing at the Commission.
If you or your employer are not happy with the decision made by the Commission, you may ask for the case to be stopped (called 'a stay of proceedings') and appeal the decision to the Full Bench (three members) of the Commission.
For more information, see After the case.
What happens at a hearing
At a hearing, you will be given a chance to present your evidence (including any witnesses). The employer will also have the chance to present their evidence. After this, a member of the Commission will make a decision in your case and make orders. If the hearing is a jurisdictional hearing, the orders will be about whether the Commission is able to consider your case. If you are at the final hearing, the orders will be about whether you were unfairly dismissed (and what should be done if you were). The orders made could include:
- An order that you be reinstated to your job
- An order that you are paid compensation.
The Commission will not make orders that the employer write you a reference or pay you other amounts of money they owe you (like underpaid wages). Orders are only about unfair dismissal. You would have to start a second case to get orders about unpaid wages.
Preparing for a hearing
Before the hearing you should start preparing your case. The Commission will send you:
- a Notice of Listing that tells you the date of the hearing
- instructions on what you must do before the hearing (for example, file witness statements by a certain date).
These instructions are called 'directions'. For more information, see
Step by step guide:
Preparing for the hearing
Presenting your case at the hearing
Before you go to the hearing, you need to understand how a hearing works and plan how you are going to present your case.
Step by step guide: Presenting your case at the hearing