“A stitch in time saves nine”. “There’s never time to do it right but there’s always time to do it over”. Wise sayings. We have recently had a number of enquiries which go along the lines of “I’ve just had my conference in the Fair Work Commission and it didn’t settle. I’d now like to get legal representation and advice”. Or sometimes “I’ve got a hearing in the Federal Circuit Court in a month – can you help?”. Most people, whether employees or employers, are usually stunned when you give an estimate of legal representation costs to take a matter to hearing, and that is without considering the issue of permission for representation in the Fair Work Commission. Many applicants are also surprised to learn that the scope for “no win, no fee” work can also be very limited.
The President of the Fair Work Commission has made it clear on several occasions now that the increased workload of the Commission means that efficiencies will have to found – see Fair Work Commission conferences: Do your homework!. The immediate effect is that conferences in breach of general protections matters will now only be about whether a matter can be settled, not the merits of the application, and are likely to be limited to 15-20 minutes. These changes are likely to flow through to unfair dismissal and other claims. This means that employees and employers have to be well prepared to make the most of the conference. Otherwise, they will find themselves having to commence or defend proceedings in the Federal Circuit Court, a process that can take over a year and result in legal costs into six figures. Another statistic provided by the Fair Work Commission is that the majority of breach of general protections rights cases that do not settle at conference are not pursued further by applicants. Which rather begs the question of what was the point in commencing the application in the first place? To make the applicant feel better? Or simply to have a go?
Applicants can find themselves in trouble if they decide the case is getting too hard and withdraw when the other party has incurred significant cost and trouble in defending the case. In our view, if legal proceedings are to go past the conference stage, a commitment should be made to pursue those proceedings (assuming they have merit) to the bitter end. Otherwise, there can be a significant risk of costs orders being made which can result in financial ruin. Much of the unnecessary time, effort, emotional distress and financial investment in legal proceedings can be avoided if legal advice is obtained before commencing an application in the Fair Work Commission or other courts and tribunals. Yes, legal advice is expensive but we think it is worthwhile getting the advice of an experienced legal practitioner not only about the technical availability of legal avenues but also obtaining some preliminary assessment of merits, potential outcomes and the effort likely to be involved.
Apart from paying a private lawyer for advice, initial advice can sometimes be obtained from the Fair Work Commission’s Workplace Advice Service or from a community legal centre – see Community Legal Centres Queensland. Union members should ask their union for assistance. State law societies can be consulted for their lists of accredited specialist practitioners – eg, see Queensland Law Society. Word of mouth can be useful as can “googling” but caution should be exercised. The reality is that there are very few situations where a “white knight” is going to step in and run a case for you. There may be other alternatives to traditional full legal representation though. At least in Fair Work Commission or minor claim proceedings, strategic advice and assistance with preparation of documents can be available at a more affordable rate (although the cost can still be significant). Our view however is that it will be rare that a self represented party should act for themselves in court proceedings which usually involve potential exposure to costs orders whether it is the Federal Court, Federal Circuit Court or a state civil court. The law is getting more complex and legal cases are about the law, not purely about justice.
AI is increasingly helpful but can be quite misleading at time and the veracity of AI information always needs to be double checked. The courts are increasingly wary of court documents prepared by or with the assistance of AI. There have been a number of cases recently where AI has created false case citations and authorities. And ultimately, AI is not going to stand up in court and argue your case for you.
This principle of obtaining legal advice early does not just apply to legal proceedings. We commonly also give advice to employees with long running histories of workplace bullying or other grievances which have not been resolved. Or long running internal disputes which sometimes result in “show cause” disciplinary proceedings against employees leaving employees with few options. These situations are usually more difficult to resolve than if advice had been obtained early. And employers sometimes present with difficult employees who have not been managed well and looking for “shortcut” solutions which increasingly don’t exist.
In short, knowledge of the legal framework, avenues to address issues and advice about practical aspects is best obtained before issues start to spiral towards litigation. Please contact us if you would like further information or help.