What an employment lawyer can help with, for workers and businesses

If you have been dismissed

The first question is which system you are in. Most employees of companies are covered by the Fair Work Act 2009 (Cth). In Western Australia, employees of sole traders, partnerships and some trusts, WA public sector employees and, since 1 January 2023, WA local government employees are in the state system under the Industrial Relations Act 1979 (WA) instead.

In the national system, an unfair dismissal claim asks whether the dismissal was harsh, unjust or unreasonable, looking at the reason for it and how it was carried out. A general protections claim asks whether you were dismissed for a prohibited reason, such as making a complaint about your employment, being temporarily absent because of illness or injury, or a protected attribute. Both must be lodged within 21 days of the dismissal; a WA state system unfair dismissal claim must be lodged within 28 days.

A lawyer can advise whether a claim is available, prepare the application, and represent you at conciliation, in settlement negotiations and at a hearing. Advice on the terms of a proposed settlement agreement, including any release of other claims, is also common.

Other problems during employment

A worker who is being bullied can apply to the Fair Work Commission for an order to stop the bullying while they are still working there, and since 6 March 2023 a worker can also apply for an order to stop sexual harassment. Adverse action because of a protected attribute, such as race, sex, age, disability, pregnancy, family or carer's responsibilities, gender identity or being subject to family and domestic violence, can found a general protections claim, and federal and WA anti-discrimination laws give separate routes.

Advice is also often sought on a new employment contract (notice, probation, confidentiality and restraint clauses), on a performance improvement plan, on responding to allegations or a stand down, on underpayments and overpayments, on entitlements under the National Employment Standards, an award or an enterprise agreement, and on whether a redundancy is genuine and the redundancy pay is correct.

For businesses

Employers commonly seek help drafting employment contracts and workplace policies, including protection of confidential information and reasonable restraints. Before a termination, advice on a fair process can reduce the risk of a claim; after one, a lawyer can prepare the response and represent the business at conciliation and hearing.

Other common work includes designing a fair performance management process, investigating complaints of bullying, harassment or misconduct, planning a restructure with the consultation an award or agreement requires, working out which award applies and what it requires, and managing an employee's long absence through illness or injury. Since 13 December 2022 employers have also had a positive duty under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate sexual harassment, as far as possible.

Getting advice early

Many of these issues turn on short deadlines or on steps taken early, such as how allegations are answered or how a restructure is consulted on. If something at work is going wrong, it is worth getting advice before you act rather than after.