WORKPLACE LAW
Getting on with it – The pragmatic, solution focused approach of the SAET in resolving disputes MICHAEL ESPOSITO
T
he use of alternative dispute resolution (ADR) to resolve disputes has been particularly embraced in the South Australian Employment Tribunal (SAET). According to President of the SAET, Justice Steven Dolphin, members of the SAET understand the culture of industrial relations and workers compensation and appreciate that compromise is often the best way for the parties achieve most of what they want out of their litigation. “The costs of litigation, in terms of time, expense and personal stress, can be alleviated, if parties are prepared to compromise and reach agreement about the outcome of the litigation,” Justice Dolphin said. “I often say to litigants, ‘whilst you can afford to win this dispute, can you afford to lose?’” “A resolution that the parties voluntarily enter into themselves, is usually the best and most enduring way to finalise the litigation.” Conciliation Conferences Conciliation is compulsory under s (43) of the South Australian Employment Tribunal Act. Conciliation conferences take place at the outset of the litigation and is are conducted by Commissioners, who are not judicial officers but are nationally accredited mediators. Conciliations conferences are subject to a six-week time limit, a deliberately strict timeframe to ensure parties move quickly to gather relevant evidence. A Commissioner holds an Initial Directions Hearing (IDH) to assess what is needed for Conciliation to take place, such as further evidence or medical reports. About two thirds of disputes in the SAET are resolved at the conciliation conference stage. The remaining third are heard by Presidential members (judges and magistrates of the SAET). “Conciliation is very successful at resolving disputes as the Commissioners are very skilled in ADR techniques and
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for the most part the practitioners and parties appreciate that resolving the dispute early is often the best way to proceed,” Justice Dolphin said. Hearings and Determinations ADR been a feature of industrial disputes and workers compensation for decades, and as such all Presidential members have all twice had experience in ADR as practitioners. Disputes are case-managed by Presidential members using modern judicial case management methods. In colloquial terms, these methods aim to instil a culture of “getting on with it”, by using a hands-on approach ensure that the parties are conducting their litigation quickly and efficiently. When a case is referred to a Presidential member, a Commissioner will provide a written Assessment and Recommendations document to the parties. That document often advises parties as to the strengths and weaknesses of their case and can recommend ways to resolve the case. The Presidential member will then assess the case and advise on matters such as whether the case should it be listed for hearing straight away, if more evidence needed, or if parties are properly focussed on the correct legal approach. “Presidential members take an active role in the litigation and do not passively just allow cases to meander through to hearing;” Justice Dophin said. “If a party wishes to rely on any particular evidence, they must persuade the Presidential member that it is relevant to the issues in dispute.” “Presidential members will often question the need to either call a witness or cross-examine any particular witness if the evidence of that witness is uncontroversial. If evidence has not been arranged on a relevant topic, a Presidential member will often enquire why not,
SAET President, Justice Steven Dolphin and ask which party should obtain that evidence.” President Justice Dolphin said that assessments from Presidential members are usually very much appreciated by the parties as they give parties a clear sense of the trajectory of their case. If a case is particularly unmeritorious, for example lacking in jurisdiction, a Presidential member will often hear arguments as to why that case should not be struck out or dismissed. Such issues are to be heard and determined at an early stage of the proceedings to avoid prolonging potential unmeritorious litigation. At the appropriate time a Presidential member may conduct a Settlement Conference to assist the parties to resolve their differences. Judicial settlement conferences usually take between 1-3 hours. In settlement conferences, Presidential members generally get involved in exchanges of settlement offers, and provide assessments on the merits of parties’ cases.
