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The Importance of Representation for an Unfair Dismissal

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unfairly dismissed

Have you been recently dismissed, discriminated against or harassed? Unsure what to do but think you would like to make a claim with Fair Work? It could be beneficial for you to seek advice and/or representation through a paid agent or lawyer. To have a confidential discussion about possible representation or to seek advice regarding your unique circumstances, please give A Whole New Approach a free call on 1800 333 666.

A representative is an individual who acts on a party’s behalf. This could be a lawyer, a paid agent, an employee or employer organisation or someone else. A Whole New Approach, an independent body of workplace advisors and paid agents, we have run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards, VCAT and Tribunals. We are experienced to draft the claims and applications on your behalf to a Federal Court standard, run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide realistic advice in regards to the prospects of your case. We are so confident in our ability, the majority of our cases are run on a no-win, no-fee basis. This means we are happy to carry the risk and run your case until you decide you are satisfied with the resolution.

When running a dispute or claim in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals, you have the option of representing yourself or seeking representation through paid agents such as A Whole New Approach. The various commissions, boards and tribunals support self-represented individuals but they will not always have your best interests in regards to settling your matter. When a claim is brought to these various jurisdictions, their job is to resolve the matter, whether you are happy with the outcome or not. This is why representatives, lawyers and paid agents can assist you as they will argue your case to the best of their ability in order to get you the outcome you deserve.

If this is not convincing, take a look at the statistics and procedures of each jurisdiction when deciding whether you should obtain a representative for your claim.

Fair Work Commission

How we work with Fair Work.

A Whole New Approach deals closely with the Fair Work Commission, as we lodge unfair dismissal and general protections applications on a daily basis on behalf of our clients. These applications are set down for a conciliation conference, in which the parties attempt to come to a resolution before the matter is referred for a formal hearing and determination.

When lodging an unfair dismissal application, our specialist staff understands the test under the Fair Work Act 2009 (Cth) and drafts the claim to demonstrate why the dismissal is harsh, unjust or unreasonable. In regards to lodging a General Protections application, our team understands this narrow provision of legislation and when drafting our applications, we clearly demonstrate the link between the exercise of workplace rights and an employer’s adverse action. It is a common issue at the Fair Work Commission in that those who are not eligible to lodge an Unfair Dismissal application, lodge a General Protections Application and continue to use the term “unfair” in their argument. Unfair Dismissal Applications are often disguised as General Protections Applications but these have different tests under the Fair Work Act 2009 (Cth), which our experienced team knows. By drafting your claim correctly from the beginning, it shows that you understand the legislation, how the Respondent has contravened these provisions and thus when negotiating a settlement or remedy, the Commission and the opposing party will take your case more seriously and be more inclined to settle.

Expected standards at Fair Work hearings.

When appearing at the Fair Work Commission, there are standards to be aware of in regards to the conduct of all people attending a hearing or conference at the Commission. The standards are in place to assist the Commission in providing fair hearings for all parties. Providing fair hearings involves allowing all parties to put their case forward, and to have their case determined impartially and according to law. The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants. When you have a representative, they will guide you as to what these standards are and this will indicate to the Commission and the opposing party that you are taking the matter seriously. In order to argue the best possible outcome, applicants need to seize both the moral and legal high ground in the way they carry themselves during these conferences and hearings.

Fair Work Commissions role.

It is also important to note that the Fair Work Commission is an independent government body and so they are impartial. This means that the agents of the Fair Work Commission, such as conciliators or Deputy Presidents, are not on the employee’s side. They provide even handed advice to both employers and employees. If you engage a representative, they will address the merits of your claim, the Respondent’s arguments and provide you with the best advice on how your case can be best handled.

When the matter is listed for a conciliation conference, representatives make need to seek leave, or permission, to appear on an Applicant’s behalf, depending on the Application. In most cases, representatives are allowed to appear on behalf of the Applicant as the Commission understands that the Applicant unfamiliar with these types of proceedings. The Applicant would be going up against large companies and corporations who have more knowledge about the requirements and procedures under the Fair Work Act 2009 (Cth). In addition, most claims have a great deal of complexity in regards to the issues involved and so your representative will assist you in outlining the relevant argument for your particular application in order to “make your case” and convince the other side to settle.

In the Fair Work Commission 2018-19 Annual Report, 13,928 Unfair Dismissal applications were lodged. Of these 13,928 applications, 78 percent were (a total of 8,161) were resolved at the conciliation conference with the assistance of the Commission staff during conciliation. However, in order to settle these matters for an outcome an Applicant rightfully deserves, a representative’s expertise in negotiating are of high importance. A Whole New Approach staff are master negotiators and use a range of arguments to drive the best possible settlement for our clients. The outcomes of these conciliations included monetary payments and non-monetary items (such as a Statement of Service or Resignation) for 50 percent of these claims. In 26 percent of cases, there were monetary payments only and in 18 percent of cases, there were non-monetary items only.

The process.

Our team also understands when employees are eligible to make an application and remind those enquiring about our services, of the strict 21 days to lodge an application. This means if you have been terminated, do not waste time dwelling on your termination but instead contact A Whole New Approach and enquire whether you have grounds to lodge an unfair dismissal application.

If a matter does not settle at conciliation and depending on other factors, our expert team at A Whole New Approach can guide you as to what the next best option is. If an unfair dismissal application is not resolved at the conciliation conference, the matter referred to arbitration, in which the matter is determined by a Commission member. However, in claims where there are additional issues at hand, such as whether there is discrimination or sexual harassment, we often discontinue the matter at the Fair Work Commission and lodge an application to Anti-Discrimination Commissions, Boards or Tribunals. Again, these applications are primarily run on a no-win, no-fee basis and so we pursue the matter as far as we need to before you are offered a resolution you deem fair and just, given the circumstances.

Anti-Discrimination Commissions, Boards or Tribunals

A Whole New Approach lodges discrimination complaints in various jurisdictions around Australia to Anti-Discrimination Commissions, Boards or Tribunals. Our expert team has lodged thousands of applications of discrimination and sexual harassment to these jurisdictions and continue representing our clients. Although these Anti-Discrimination Commissions, Boards and Tribunals have measures in place for self-represented individuals, statistics show that applications with representatives have a higher settlement rate all together. For instance, the 2018-19 Annual Report for the Anti-Discrimination Board of New South Wales indicates that only 19.1 percent of cases settle at or after conciliation and only 7.5 percent of cases settle prior to conciliation. This means that there is a total settlement rate of 26.6 percent. A total of 14.6 percent of cases that are resolved at the Anti-Discrimination Board of New South Wales, these are referred to the New South Wales Civil and Administrative Tribunals.

A Whole New Approach Settlements

If you feel that you have been unfairly dismissed, discriminated against or harassed, you deserve to take action against the unlawful treatment you have endured. However, as things have not worked in your favour so far, it is difficult to see how a person would be successful at taking on their previous employer in these disputes.

A Whole New Approach statistics indicate that a high majority of our cases settle either at the Fair Work Commission or if lodged to the Anti-Discrimination Commissions, Boards or Tribunals, a large majority will settle at this stage. Regardless of where we lodge the Application, our 20 years’ experience and master negotiating skills mean we can assist you in improving these statistics and ensuring you obtain a settlement. In order to discuss potential applications, please give us a free call on 1800 333 666.

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