Possible outcomes of a general protections – dismissal case

Even after an employee applies to us, they can continue to discuss the case with their employer. Sometimes the 2 sides resolve the issue and reach their own settlement before the conference with us.

We recommend that both sides sign the written agreement and keep a copy.

The employee should tell us if they reach a private agreement.

At a conference, we try to resolve disputes by helping both sides discuss the issues and options. The sides often reach agreement by the end of the conference discussion.

If the parties agree

If the parties agree to a settlement:

• the Commission Member or staff 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 Commission Member or staff 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’).

In more than 40% of agreements, the average compensation is less than $4,000. It is less than $10,000 in 75% of cases.

If the parties do not agree

A Commission Member issues a certificate to the employer and employee. This confirms the parties could not settle or resolve the dispute.

The Member usually considers relevant objections before they issue the certificate.

Once the employee has the certificate, they have 14 days to decide to:

• apply for arbitration, if the employer agrees
• take the case to a federal court.

The Member may think the employee is unlikely to win their case if they continue to arbitration or to a court. The Member must say in the certificate if they believe the employee does not have a reasonable chance ('prospect') of success.

About arbitration

It is possible, but rare, for cases to continue to arbitration. In arbitration, the Member makes a final decision on the case.

Both sides must tell the Commission that they agree to arbitration. Use Form F8B to notify the Commission. Both sides must sign the form before you submit it.

The Member may decide compensation is the right outcome. This may include money for non-financial loss, such as hurt, humiliation and distress. The Member must see evidence that the employer’s action caused the non-financial loss.

Not all general protections cases result in compensation.

The Member's decision is final ('binding'). Either side may decide to appeal the decision.