The process of making a claim in Australia alleging unfair dismissal by an employee varies depending upon which Australian employment tribunal has the power to hear the claim. In the case of most Australian employees this will be the national Fair Work Commission under the Fair Work Act. The Fair Work Commission has the power to deal with unfair (and some unlawful) dismissal claims involving “national system employers” and various federal statutory bodies.
All States have in varying degrees referred some or all of their industrial relations powers to the Commonwealth. Some States such as Western Australia have retained significant law making powers over industrial relations. Consequently the Western Australian Industrial Relations Commission has a busy unfair dismissal jurisdiction over State instrumentalities and sole traders.
Since there are very tight time limits which apply under Australia’s various unfair dismissal laws, and the issue of which employment tribunal has the power to deal with these claims can be factually and legally tricky, competent urgent legal advice might be required to get this right. It is relatively easy without legal advice to choose the wrong jurisdiction and to then learn that it is too late to launch a case in the proper venue.
None of the employment tribunals in Australia require legal representation to file and pursue an unfair dismissal case, but there are several reasons why it can be of powerful assistance and very good value.
All of the Australian tribunals which deal with unfair dismissal claims follow a reasonably similar process of conciliation and arbitration; shortly after the claim is filed the tribunal will conduct a compulsory conference with the employee and the employer, and their advisers, in an endeavour to resolve a settlement of the case without the need for it to be heard and determined as a defended case, which involves a contested adversarial process like the Australian civil courts. This can be very stressful, costly, legalistic, risky and in some respects problematic.
Competent legal advice and representation plays a very powerful role in these early stages of a case and is often the difference between a speedy and satisfactory resolution and a drawn out, stressful and problematic outcome.