Unfair dismissal lawyers help employees who have been unfairly dismissed, as well as represent employers who may need defending. The role of a lawyer in unfair dismissal claims is to get the best outcome for their client and take into account any potential risks.
In this article, our Director – Farrah Motley – talks about her experience as an employment lawyer. Farrah has worked defending employers as well as advising employees on their rights for over a decade. Farrah has handled many unfair dismissal cases. Both as an in-house counsel working for international companies and now as the Director of Prosper Law.
How does legal advice help with unfair dismissal claims?
Preventing stress and dragging out disputes
Let’s face it, employment disputes can be stressful, even for employers. Staff who are tasked with managing unfair dismissal matters often have to spend a lot of time managing the issue and preparing a response.
For employees, there is the pressure of the 21-day time limit that applies to making an application for unfair dismissal. And, in my experience, some employees can find it challenging to read an employer’s response to the application. It’s also difficult to have to mediate with their former employer.
When my team and I are managing unfair dismissal matters, we look at ways we can reduce stress. This might be as simple as letting our clients know what to expect. And that we are the buffer between our client and the other party.
Advising on the likelihood of success
Fair work legal advice is really important. There are some criteria that apply to unfair dismissal claims (including to defend them successfully). It might be obvious that some criteria have been met, but it may also be unclear if there is a valid unfair dismissal claim or whether it is likely that an employer has a good defence.
As an example, things can get complicated when it comes to casual employees. An unfair dismissal lawyer may need to consider whether the worker was employed on a regular and systematic basis, even though they were referred to as a ‘casual employee’.
I’ve also been involved in unfair dismissal claims where it was unclear whether the small business fair dismissal code applied. This was because the employer employed more than 15 staff but some of them were arguably not ’employees’.
Our team have some basic questions for our clients when they reach out about a claim for unfair dismissal. These questions enable us to quickly ascertain whether it is likely that the eligibility criteria have been met or if there was a valid reason for dismissal.
Drafting an unfair dismissal claim or response
Having a professional employment lawyer draft documents is important. Not least because employment law can be a ‘grey area’ in that there is not always a clear answer to a legal problem. Fair work lawyers can provide strategic advice on how to manage an application or response.
For example, when we draft unfair dismissal documents to send to the Fair Work Commission, we consider what arguments the other side is likely to raise.
We may also consider the ‘human factor’. This involves taking into account the approach, personality or potential pain points of the other side. For example, are they concerned about their reputation? Are they likely to have the financial resources to progress the matter? Does the unfair dismissal claim have a motive other than money?
These kinds of nuances can only be addressed through expert legal advice and legal representation. In my experience, it is this deeper understanding of the drivers behind certain behaviours and decisions that can make all the difference when it comes to unfair dismissal.
Providing representation at hearings and conferences
The Fair Work Act requires employment lawyers to seek the approval of the Commission to represent an employer or employee. Throughout my career, I have never experienced the Commission refuse to give their approval. However, I almost always need to request permission as a formality.
Historically, when an unfair dismissal claim proceeds to a conciliation conference, the conference is held by phone. However, it seems that Fair Work will soon require conciliation conferences to be carried out by video conference. In my view, this is sensible because neither party can hide behind the phone line. Further, it is easier to get a feel for what the other side might be thinking if you can see them.
Our employment lawyers take care to ensure we get clear instructions before a hearing or conference starts. This is because we may be asked last-minute questions or need to think on our feet. Providing representation at Fair Work conferences and hearings gives our clients the best chance of a favourable outcome. This is because we do this work for a living and we’re good at it.
Negotiating settlement outcomes
An unfair dismissal claim will end at some point. Whether it ends because:
- the unfair dismissal application is withdrawn
- a jurisdictional objection is upheld by the Commission or
- financial compensation is provided through a negotiated settlement
Experienced unfair dismissal lawyers will have a good sense of likely outcomes. More often than not, there is a reasonable expectation of a negotiated settlement.
This doesn’t necessarily mean compensation. It could mean an employee saying that they resigned from employment. For instance, rather than being dismissed unfairly, and/or receiving a statement of service. Or, the claim for unfair dismissal may result in the worker being reinstated to their role within a business.
Whatever the desired outcome is, our goal is to understand what our client’s preferred outcomes are. And we work hard to achieve those.
Frequently Asked Questions for Unfair Dismissal Lawyers
What is the minimum employment period?
To be eligible for unfair dismissal protection, an employee must generally have completed a minimum employment period. This minimum period is:
- 6 months of continuous service for employees of businesses with 15 or more employees.
- 12 months of continuous service for employees of businesses with fewer than 15 employees.
How much do fair work lawyers charge?
The cost of an unfair dismissal solicitor varies. Some employment law firms charge by the hour and you could expect to pay between $350 – $750 plus GST per hour.
When I founded Prosper Law, I wanted to move away from hourly rates because lawyers don’t like time recording and clients prefer to know how much their lawyer is going to charge. That’s why we provide fixed fee legal advice.
What is harsh, unjust or unreasonable?
A dismissal must (among other things) be harsh, unjust or unreasonable in order to be considered ‘unfair’ in the context of the Fair Work Act. Dismissal doesn’t need to be harsh, unjust and unreasonable – it just needs to be one of those things.
Can’t I just dismiss an employee who is underperforming?
I know you’re going to hate this, but it depends. If you’re a small business, there is more leniency around following processes before terminating an employment contract. But for larger businesses, it’s important that if an employee is underperforming, you try to genuinely help them improve their performance. Obviously, there is only so much you can do.
If you’ve tried and there has been no improvement or minimal improvement, then you might want to take a pragmatic view. Will the risk of legal repercussions in dismissing this staff member outweigh the long-term benefits to my business? If the answer is no – you might want to accept the risk and move to terminate the employee.