Representation in unfair dismissal cases

Representation in unfair dismissal cases in the Fair Work Commission (and also in the State tribunals which have retained unfair dismissal jurisdictions) is of critical importance to the outcome. The Fair Work Commission does not publish statistics which identify the proportion of cases which are won or lost with professional representation and those which are won and lost by unrepresented parties, which is a great shame because it is a matter of public interest.

My experience, based upon decades of representing  both employers and employees, is that applicants in unfair dismissal cases who are represented by lawyers  or competent professional agents have a very significantly higher success rate than unrepresented parties. This news will presumably come as no surprise to anyone, and is entirely consistent with the very nature of the adversarial process which applies to such cases, the conversations I have had with Fair Work Commission personnel, and the inherent logic of the proposition.

Of course nothing is for free. Except medical treatment in Australia, because of Medicare. It is also possible to insure against most everyday risks, including vet bills, hospital treatment, funeral expenses and so forth. It is even the fact that some business insurance includes cover for representation in unfair dismissal cases.

But there is no meaningful free representation available for applicants in unfair dismissal cases. Every now and again I come across an applicant in an unfair dismissal case who is represented by a union, but that is rare. Indeed it is not uncommon for me to be contacted by an applicant who asks me to take over his or her representation from a union because the union is half hearted in its support, particularly where the case involves conflict between union members.

Similarly, membership of a federation of employers may provide rights to representation for an employer in an unfair dismissal case, but small to medium employers cannot in the main afford the cost of membership.

So what representation is available to applicants who do not have a right of representation?

Lawyers

There are many very fine employment lawyers in Australia. Nevertheless the proportion of the legal profession which competently practise in unfair dismissal cases is very small. Furthermore, as a general rule, most law firms will only accept instructions from employers or from employees, but  not both. Nevertheless there are many lawyers who will accept instructions for a matter in the Fair Work Commission with no experience and at significant cost. It is not difficult to find the good ones, but it does require some homework. I recommend several sources of assessment.

  1. Web sites; check the law firm’s web site. A careful analysis will usually reveal whether the firm has experience and competence in this field, particularly in the site’s blogs or posts.
  2. Law Societies; most State law societies have registers of firms which specialize in particular fields.
  3. Contact law firms and ask for a quote and references to cases in which they have been involved together with the links to the Fair Work Commission’s web site which publishes the outcomes of those cases. You can read the decisions.
  4. Obtain a quote.

No win-no fee lawyers

There are several lawyers and law firms in Australia who advertise no win no fee arrangements on the internet. I have no reason to doubt the obvious attraction of this product to applicants in unfair dismissal cases and I have very little knowledge of how the products work. In 2017 I did out of curiosity telephone a lawyer who works on the East Coast of Australia who was advertising a very attractive no win no fee unfair dismissal product and (to my discomfort) I anonymously acted out the role of a recently dismissed employee looking to pursue an unfair dismissal case. Unfortunately, upon a close analysis the no win no fee product did involve upfront fixed fees (more than my fixed fees!) PLUS a large percentage of any compensation obtained at conciliation or arbitration.

Legal Aid

I am unaware of any State which provides legal aid for unfair dismissal cases. In Western Australia there is an entity which is called the Employment Law Centre, which I understand is funded by the Western Australian government to provide legal advice and representation in employment law matters. The work which the Centre undertakes is highly regarded but not a week goes by without someone advising me that the Centre does not answer its telephones and that they “ring out”.

Fair Work Ombudsman and Fair Work Commission

The FWO does not involve itself in unfair dismissal matters. The Commission does have staff who will provide very basic advice about how to lodge documents with it, but it does not otherwise offer advice or representation in unfair dismissal matters.

Fair Work Legal Advice

This is a business which I own. I have a range of fixed fees for employment law advice and representation. I represent both employees and employers. Please refer to the About and Fees tabs of my web site.