Defending The Business From Claims
Employment-related claims can be a significant challenge for businesses. At our law firm, we have extensive experience in employment law litigation and can help your business defend against a range of claims. In this article, we will discuss some of the various claims we have dealt with and how we can assist your business.
Unfair Dismissal Claims
If an employee believes they have been unfairly dismissed, they can lodge a claim with the Fair Work Commission. The maximum compensation the employee can receive is six months' salary or $81,000, whichever is lower. This amount is changed every year.
We can help your business prepare the Fair Work Commission response documents, which set out the business's defense to a claim and the reasons why the dismissal was not unfair. We will also help you gather the relevant evidence to support your case.
Unfair dismissal claims often require compulsory mediation called a conciliation. We can represent your business in this conciliation to give you better chances of settling the claim with the employee and avoiding a protracted legal battle.
If we can settle your claim or if your claim settles, we will help repair and negotiate a settlement deed. A settlement deed ensures that the employee will not have another opportunity to pursue legal action, i.e., go after the business for something else.
Some claims cannot be released in a settlement deed, but they are limited, usually to unpaid superannuation or workers' compensation claims.
If the claim cannot settle, we can represent your business at the hearing. This is where your witnesses are called, your evidence is presented, and the Commission will hear your side of the story as well as the employee's side and make a decision.
General Protections Claims
A general protections claim involves an allegation that the employee was dismissed or unfavorably treated at work due to a prohibited reason.
There are limited reasons for which an employee may take action, including:
- Making a complaint about their employment.
- Making inquiries about their employment.
- Being a member of a union.
- Facing discriminatory factors such as race, gender, or sexuality.
- Exercising a workplace right, such as taking annual leave or requesting parental leave.
- Participating in workplace processes, such as filing a bullying complaint or lodging a complaint with the Fair Work Ombudsman.
Employees have the right to be protected against retaliatory action under law called adverse action in relation to these rights. Under the law, the main question is whether the business took action against the employee due to these protected rights or for other reasons, such as inadequate job performance, misconduct, or the employee's inability to meet the inherent requirements of the job. Determining the reason behind an employee’s dismissal or unfavourable treatment at work is often the main concern in a general protections claim.
The employee will allege that they were treated unfavorably because of their protected rights. The business will often allege that the employee's dismissal or other factors had nothing to do with the protected rights. We will help you prepare your claim and put forward your best case. As with unfair dismissal claims, general protections claims go through a mediation process known as conciliation. We can also assist and represent your business in the negotiation to increase your chances of settling the claim.
If a settlement is not reached at the Fair Work Commission stage, the employee's claim can either advance to the Federal Circuit and Family Court of Australia or return to the Fair Work Commission in cases where the parties have agreed to arbitration. If the claim proceeds to the Federal Circuit and Family Court of Australia, the Perth Registry will normally require the parties to attend a compulsive mediation, e.g., a second mediation.
If the claim doesn't settle at that stage, then it normally proceeds to trial. We can represent your business at the trial stage should negotiations be unsuccessful. If negotiations are successful, we will help prepare a settlement deed to ensure that the employee does not make further claims against the business.
Sometimes employees allege that they are owed certain entitlements under the award, but there may be a dispute on whether they have been paid or whether they are owed.
An employee who alleges they have been bullied at work can make a claim to the Fair Work Commission to seek an order to stop bullying.
An employee may allege that a business has breached a term of an enterprise agreement, a modern award, or the Fair Work Act and therefore seek a pecuniary penalty against the business. Pecuniary penalties are fines imposed against the business both to punish the business for breaching its employment obligation and also deter others from doing similar acts. It's also important to note that individuals within the business such as managers, directors, human resource professional owners who were involved in the contravention can also be liable as an accessory.
A pecuniary penalty is not just limited to the corporate entity; it can also extend to the individuals that run it. We can help defend businesses against these pecuniary penalty claims and give advice in relation to the risks and the penalty claims.
The amount of the penalty is determined on a case-by-case basis and depends on a number of factors such as:
The seriousness of the contravention
Whether the contravention was intentional or accidental
Whether the contravention has been fixed
If there have been past contraventions
The steps taken to prevent future contravention
Whether the employees that have been affected are particularly vulnerable such as those with a disability, younger workers, mature workers, or those with temporary working rights or challenges speaking English
The size of the business
The level of human resource expertise the business had
Fair Work Ombudsman Prosecutions
We have worked on matters where the Fair Work Ombudsman has sought penalties to be imposed against a business. We usually recommend that you get legal assistance well before the stage of the Fair Work Ombudsman making the decision to prosecute. However, if it can't be avoided, we can assess the ombudsman's claim, the risks for the business and assist you to try to get the best outcome possible in the circumstances.
At MKI Legal, we have extensive experience in employment law litigation and can help your business defend against a range of claims. We can assist your business in preparing the necessary documents, gathering evidence, and representing your business in mediation or trial. Contact us today to discuss your employment law needs.