Steven v Donutz4Dayz*

In an earlier blog Steven was dismissed from his employment with Donutz4Days. Steven turned to Turner Freeman Lawyers and this is what happened.

The Initial Consultation

Steven contacted Turner Freeman Lawyers and asked to meet with someone who specialised in unfair dismissal. He was booked in for a consultation within two business days of his enquiry and was sent a letter by email confirming the appointment.

Steven was asked to collect the following documents and have them available to him at the time of the appointment:

  1. His contract of employment;
  2. His enterprise agreement or industrial award;
  3. Copies of any correspondence between him and Donutz4Dayz relating to his performance, behaviour and termination from employment; and
  4. Medical certificates for any days he may have had off work while working there (more on this in a future blog!).

During the initial consultation Steven was asked to answer the following questions:

  1. When did he start working for Donnutz4Days;
  2. What was his title;
  3. How many hours did her work per week and whether this was a full-time, part-time or casual position;
  4. Whether he had even received any behaviour or performance management in the past, either formally or informally; and
  5. Whether he agreed with the allegations of bullying and harassment that had been made against him?

The solicitor that Steven spoke to confirmed that he had likely been unfairly dismissed. She reminded Steven that applications for an unfair dismissal remedy must be made within 21 calendar days of the dismissal taking effect.

She advised that he needed to make a claim by no later than 27 August 2021 or his application would be out of time.

Application and Response

Steven engaged Turner Freeman Lawyers to act on his behalf. His solicitor prepared the application for an unfair dismissal remedy and filed it in the Fair Work Commission on his behalf. She advised that Donutz4Dayz would have 7 days within which to respond to the application after they received it.  In many cases, it takes longer than 7 days and in some cases it is only provided on the morning of the Conciliation Conference.

When Steven’s solicitor received the response from the employer, she invited Steven to an appointment to discuss it. She also provided advice on the conciliation process and what Steven needed to do to prepare for it.

Preparing for the Conciliation Conference

Steven’s solicitor advised him that a Conciliation Conference would be conducted within 6-9 weeks of his application being filed in the Fair Work Commission. It was an opportunity to try and resolve the issues in dispute (ie. whether he had been unfairly dismissed or not). Steven would not have to speak during the Conciliation Conference except in private with his solicitor and maybe to the Conciliator. Steven was assured that anything he said to the Conciliator would be treated confidentially.

Steven’s solicitor advised him that at the start of the Conciliation Conference the Conciliator would welcome the parties to the call. They would ask whether the parties agreed to conduct the conference on a confidential and without prejudice basis. Steven had not heard the expression “without prejudice” before. His solicitor advised that if his matter went to trial, any settlement offers he had made could not be raised with the Fair Work Commission and could not be used against him to show he previously wanted to settle the matter.

The Conciliator would then ask Steven or his representative to set out his claim. Steven’s lawyer advised that she would do this on his behalf.  The Employer’s representative would then have an opportunity to respond.  This process of making submissions and responding would continue until a settlement was reached or until the 90 minute conference time had elapsed.

Steven’s solicitor advised him that he had an obligation to try and minimise his loss. The best way to do this was to apply for work and keep a record of every position applied for, when he applied for it and what response he received.  He should bring this record with him to the Conciliation Conference.

If Steven had any questions through the Conciliation Conference, he could tell his solicitor and she would arrange for them to speak privately.

Steven asked what a settlement would involve – what could he get out of the claim. His solicitor advised that the maximum amount of compensation he could receive was 26 weeks’ worth of pay. He could also be reinstated to his previous position.

Will the matter resolve or will it go to trial? Will Steven be reinstated or will he be compensated? Stay tuned for an update in Steven’s claim next month!