So you have been unfairly dismissed or had adverse action taken against you in breach of your workplace legal rights. Perhaps you have been discriminated against, bullied and harassed, underpaid or otherwise suffered unfair or unlawful treatment by your employer. You feel a burning sense of anger and injustice and want to take legal action to obtain compensation or other redress and the sooner the better. Well, not so fast. There is no such thing as a rolled gold, 100% certain, good as money in the bank legal case. And it is important to remember that having a good legal case is not always a guarantee of significant financial outcomes. You should carefully consider the following issues before commencing any form of legal action.
Are there any internal appeal avenues? Sometimes larger companies will have an internal review or appeal mechanism, usually in non dismissal situations, which is worth exploring. Just be aware this will not affect statutory time limits for legal action.
Will the authorities act? Sometimes it is better to see if a government agency will step in to address your situation, such as the Fair Work Ombudsman or WorkSafe. This is rare however and again, will not affect statutory time limits for private legal action.
Will the union help me? If you pay a union membership fee, then the union may be able to step in to help you or provide free legal advice and assistance. Unions can often provide leverage that you cannot.
What legal options are open? It is important to remember that there is usually no “one size fits all” approach to legal action. There are different legal avenues for different legal problems (which sometimes overlap) and it is necessary to see which one best fits your particular situation. It is usually inadvisable to launch multiple actions.
What are the time limits for legal action? Different legal avenues have different time limits. These are usually strict and can only be extended in exceptional circumstances.
What are the potential outcomes? Reinstatement is rare. Are you interested in non financial outcomes such as changing the termination to resignation? Compensation can be limited by statute in some jurisdictions, eg a 6 month loss of income maximum for unfair dismissal in the Fair Work Commission. Compensation for economic loss is usually limited to weeks or months rather than years. Damages for pain and suffering depend on the extent of the effects. Civil penalties may apply but are not always awarded.
How long is it going to take? Unfair dismissal claims in the Fair Work Commission may take around 4 – 6 months. General protections and discrimination claims can take up to 2 years or more to get to full hearing and other cases even longer.
Am I going to self represent or engage representation? Some jurisdictions encourage self representation and lawyers are not always permitted as of right. The most formidable opponent in litigation is the determined self represented person with nothing to lose. However, you will be working outside your comfort zone and self representation is inadvisable in the more complex jurisdictions.
What is it going to cost? Legal costs can be significant and often the general rule is that each party bears their own costs. No win no fee lawyers and advocates will usually a charge a premium and may place you under pressure to settle. Non lawyers are not subject to the same rules of professional conduct and insurance requirements as solicitors and barristers.
Do I have to go the whole way? Early conciliation is a feature of many legal avenues and it is possible to choose not to proceed further. A second round of mediation sometimes occurs before hearing. However, the temptation to take just one more step can lead you into trouble and a late decision to withdraw when the going gets tough can result in a costs order. Once past the initial conciliation stage (if applicable) it is important to make a decision whether to let it go or see it through to the bitter end.
Will the other side settle? Maybe, but when and for how much? Any early settlement will usually involve a significant compromise. Yes, settlements often occur at the door of the court but everyone has lost some skin to get to that point. You should never undertake significant litigation relying on a pre hearing settlement.
How is legal action going to affect my health and my family? You will be expected to remember every fact of the case, invest significant time and make decisions over a potentially extended period of time. All litigation carries an emotional cost and an opportunity cost. Are you in the right state of mind to be making important decisions? Do you really want to spend the next months and years involved in the minutiae of litigation for an uncertain outcome? It is also important to be conscious of the 7 stages of grief when considering litigation options. Your initial sense of injustice may subside as time goes on.
Am I doing it for the “principle”? If so, is your action going to make any difference? Leopards don’t usually change their spots and employers don’t often change their ways of working because of one case. Remember that claimants in test cases are not usually the persons who ultimately benefit.
The reality is that most legal options are a case of shutting the gate once the horse has bolted and are only partially successful in addressing a wrong. The decision to litigate is a personal one but it is important to consider the above issues before launching what may a time consuming, expensive and uncertain process.
These comments are primarily aimed at employees but apply to employers as well. Contact us if you would like any further information or help.