Unfair dismissal cases self evidently involve the making of an allegation or allegations against an employer. Assuming for the moment that the employer, called a respondent (not a defendant) in unfair dismissal cases in the Fair Work Commission or one of the State industrial relations systems, is correctly named and identified by the employee bringing the claim (which is not always the case), the respondent has some important and immediate strategic and tactical decisions to make.
The first is to identify whether the claim raises any jurisdictional issues which might be capable of rendering the claim incompetent. These include but are not by any means limited to whether the person making the claim is actually an employee rather than having some other legal status, such as being a contractor or has some other status which jurisdictionally disqualifies the claim such as length of service or level of wage or salary.
Although the large city law firms almost always have specialist industrial relations practitioners, and there are small boutique law firms which specialize in employment law too, most Australian lawyers have no experience in or knowledge of Australia’s employment laws, which are State and federal and often involve complex jurisdictional points of law.
In my practice of employment law undertaken over many decades, I have faced many lawyers, both when I have been and when I have not been a practising lawyer (see the About tab of my website) who frankly should not be representing employers or employees in these cases and in contrast of course some non lawyers, for example employees of employer federations, who are very experienced and who are worthy, credible and wily opponents.
Secondly, it is critical for the employer named in an unfair dismissal case to strike a strategy which is cost effective, mitigates the risk of running a disastrous defence, and is tactically sensible and moderately safe. This latter strategy should involve many components such as consciousness of the potential disastrous effect on workplace morale with other employees, perhaps many, watching the employers’ actions very carefully including how the employer responds, what strategy it adopts when defending the claim and what support it may need from its staff to defend the claim.
It is wise for an employer sued for unfair dismissal to gain a comprehensive insight into and management over these issues early. In my experience, this requires subtle and wise counsel form the employer’s legal advisers to manage these aspects of an unfair dismissal case.
And then there are the hard, cold forensic issues which emerge during the management of an unfair dismissal case. Should an endeavour me made to settle the case? What are the implications on staff morale of a company defending a case and losing? What are the credibility, credit and evidentiary issues thrown up by litigation of the case. What are the potential costs of winning and losing? What are the risks of losing? Should the employer play hardball? What are the implications of doing so on other staff? What are the risks of the credibility issues? And so forth.
The reality is that all too often the human resources staff of the employer have vested interests in pursuing a particular outcome, irrespective of the strategic and tactical implications of doing so, and sometimes too being blind to possible outcomes given conflicts and vested interests. And what is the potential for catastrophic and irretrievable damage to be done to the later case management of a case headed for hearing by errors made early on?
Of course not all unfair dismissal cases are defended when they should have been settled, and there are plenty of unfair dismissal cases which are settled when that was not in the objective interests of the employer, but there are enough of each of them to raise very serious flags as to how an unfair dismissal claim is handled in its early stages. Furthermore, strategic and tactical errors made early on are very, very difficult to recover from.