Unfair dismissal claims: The difference between hard bargaining and pushing your luck

The general rule in matters before the Fair Work Commission is that parties must bear their own costs.¹ This is designed to free parties from the risk of having to pay the costs of an opposing party. The downside is that it can be more difficult to reach a quick commercial settlement with an applicant before or during conciliation, because the applicant has nothing to lose by refusing an offer and trying their luck for a better outcome at hearing. For this reason, it's in employers' best interests—and insurers covering employers under employment practices liability insurance (EPL) claims—to try to resolve unfair dismissal claims at the conciliation stage, by providing reasonable settlement offers and also engaging in hard bargaining with the applicant (as the conciliation process demands).