Employment Law

About Employment Law

Every workplace issue is different. Conflicts at work arise from a wide range of reasons.

For each problem that an employee encounters there may be 1 or more potential legal responses such as:

  1. Fight a decision internally;

  2. Make a worker’s compensation claim;

  3. Make a Fair Work Commission application to stop bullying and harassment or challenge unfair dismissal;

  4. Seek and take a voluntary redundancy;

  5. Make an application to the Human Rights Commission in relation to provable discrimination.

  6. Make a Federal Court Application for a breach of the general protection provisions; or

  7. Make a Public Interest Disclosure. In addition, quite often there will be different actions running concurrently.

The first decision about what you are going to do is the most important decision that you will make, and the easiest to get wrong! Each step that you take will impact the other steps available down the track. If you rush into one particular pathway without first seeking advice, you may miss out on taking a different approach which may have resulted in a better outcome. For example, did you know that in certain cases you can lodge an application in the Fair Work Commission for an unfair dismissal for a demotion or if you have had no choice but to resign (known as constructive dismissal)? In certain circumstances, casual staff can equally lodge these types of applications.

At Lander & Co we undertake retainers in the Fair Work jurisdiction. We have assisted many clients who are the subject of Code of Conduct investigations, or dismissals. As a small practice, at Lander & Co Katie Hrobelko, David Lander or Saara Bowen will take carriage of your matter so that you will not need to explain your circumstances to different lawyers.

We pride ourselves on getting to know and understand our clients well obtaining a global appreciation of their circumstances. The benefit of this approach is that we undertake our work with an overall strategy and consider how each step we take will impact any other aspects of your life and pocket.

Steps in the Most Common Employment Law Disputes

1

Determination of whether you are able to make an application

Unfortunately, not all employees may lodge a claim for unfair dismissal and the size of your employer, your status (i.e. casual or permanent), how much you earn and the time that you have been employed are relevant to whether you can lodge an application.

2

Lodge application

You have 21 days from the date that the dismissal takes effect to lodge the application.  This is a very strict deadline and will only be extended in very rare circumstances.

3

Prepare Case

Both sides then begin to prepare their case.  The employer will provide a statement in response to the Application.  If the employer raises an objection to the jurisdiction of the Tribunal to hear the matter a jurisdiction conference may be held and this question will need to be determined before the matter can proceed.

4

Conciliation conference

The parties meet for a conference with a Fair Work Commission Conciliator, usually by telephone to try to reach a resolution.

5

Arbitration conference/hearing

An arbitration conference or hearing is held before a Fair Work Commission Member to determine whether the dismissal was unfair. The Member makes a binding decision.

6

Appeal

If you are aggrieved with the decision made by the Commission (other than the decision of a Full Bench Expert Panel), you may appeal the decision with the permission of the Commission.   There is no automatic right to appeal.  There is a strict time limit of 21 days from the date of the issue of the decision to lodge an appeal which can only be extended in extremely rare circumstances.  You will only be able to appeal the decision if it is in the public interest and there is a significant error or fact or an error of law

Group 87

Appealing a decision of FWC to Federal Court

Parties who do not agree with the outcome of an appeal heard by the Fair Work Commission may apply to the Federal Court of Australia for a judicial review but only in extremely limited circumstances.

1

Issue to note

General Protections claims are a very specialised area of law and are designed to prevent employers from taking adverse action against employees for exercising workplace rights or for an unlawful reason.

2

Issue to note

You do not need to have been dismissed to lodge such a claim, the legal requirement is that adverse action has been taken by your employer for a proscribed reason.

3

Issue to note

We strongly recommend that you seek legal advice if considering this type of claim because there are important decisions to be made such as whether to lodge the claim in the Federal Circuit Court of Australia or in the Commission and a number of factors which impinge upon this important decision.

4

Issue to note

General protections dismissal disputes cannot be heard by a court without the parties first having a conference at the Commission unless the case is one that does not involve dismissal: see here for more information https://www.fwc.gov.au/disputes-at-work/general-protections-unlawful-actions#field-content-9-heading

5

Issue to note

Not all people are eligible to lodge general protections claims.

6

Issue to note

An application to deal with a general protection dismissal dispute must be lodged by the employee within 21 calendar days after the day the dismissal took effect and the timeframe will only be extended in exceptional circumstances.

Group 87

Issue to note

The 21 calendar day time limit does not apply to general protections applications that do not involve a dismissal. Applications, where the employee has not been dismissed, can be lodged up to six years from the day the alleged contravention occurred.

Group 88

Issue to note

The process that follows the making of the application is different depending on whether your claim involves a dismissal or not.

1

Application Lodged

Employees who work for a constitutionally covered employer can lodge an application for a stop bullying order with the Fair Work Commission. It is important to remember that not all conduct is classed as bullying in a legal sense, the behaviour must be repeated and unreasonable and must create a risk to health and safety to be classed as bullying. You can only lodge an application for a stop bullying order if you still work for the employer.

2

Employer notified

After the Fair Work Commission has confirmed that your application is complete, it will be served on your employer who will be provided with a chance to respond.

3

Matter Assigned

The Commission then creates a report and assigns your application in most cases for a mediation although in certain cases directly for a preliminary conference. If your matter resolves at mediation the application is discontinued, if not it is referred for a preliminary conference to prepare for hearing.

4

Conference/Hearing

Your matter will be dealt with by conference or hearing, depending on which is considered preferable in your case. If your application is unsuccessful the application is dismissed. If your application is successful orders will be issued by the Tribunal to prevent bullying. These orders might include orders to take certain actions or refrain from certain actions. It is important to know that the orders will not include an amount for damages or compensation. That is not the purpose of these orders. The orders will no longer apply if your employment ceases.

5

Appeal to the Full Bench

Appeals can only be lodged with the permission of the commission. You have only 21 days to appeal. Permission will only be given if it is considered to be in the public interest to grant the appeal, for an error of law or an error of fact that the decision was contrary to the overwhelming weight of the evidence.

6

Appealing decision of FWC to Federal Court

Parties who do not agree with the outcome of an appeal heard by the Fair Work Commission may apply to the Federal Court of Australia for a judicial review but only in extremely limited circumstances.

At Lander & Co we also consider and advise as appropriate on the non legal but usually important employment factors that everyone advisedly needs to weigh-the cost-benefits, the emotional and health impacts, the time taken to conclude litigation, the prospects of maintaining employer-employee working relations and the impact of litigation on family and partners.