Resolving Disputes Out of Court Having canvassed the range of legal claims that may be brought against an employer following a termination of employment, it is important to note that most dismissal disputes are not determined by a tribunal. Many are resolved before litigation is commenced, while those that are litigated are often resolved prior to hearing. Resolving disputes out of court can be a significant cost-saving exercise for both parties and can overcome the delay that generally accompanies litigation. (a) Disputes can reach the stage when neither party is apparently willing to compromise. If a disgruntled employee or ex-employee has engaged a lawyer or if legal advisers are involved through a union assisting the employee, then a common way of pushing matters along is to have a letter foreshadowing legal action sent to the employer. Employers may react to such letters by seeking legal advice, which will be appropriate in most circumstances. Despite threats of litigation, there is usually scope for the matter to be settled through careful negotiations. Employers who wish to engage in such negotiations without using legal representation will need to be careful that they do not prejudice their position if litigation is later commenced. Records of all correspondence and telephone conversations should be kept and any settlement offers should be made on a without prejudice• basis. Following the Fair Work reforms, lawyers are likely to have a reduced role in unfair dismissal proceedings. Under s 596 of the FW Act, parties can only be represented by a lawyer with FWA’s permission, which may only be granted if it would: Enable the matter to be dealt with more efficiently (taking into account the complexity of the matter) Be unfair not to allow representation because the party is unable to represent itself effectively, or Be unfair not to allow representation (taking into account fairness between the parties). Unlike under the WR Act, the consent of the parties is not relevant to whether legal representation will be permitted. The legislation explains that the kind the circumstances in which FWA might grant permission for representation include: Where the party is from a non-English speaking background or has reading or writing difficulties, or Where the party is a small business without any specialist human resources staff and the employee is being represented by a union. However, no permission is required if the lawyer is the party’s employee (for example. Many large organizations have legally-qualified in-house counsel•) or if he or she works for a union or an employer association. (b)Once the prospect of legal proceeding is real, the parties often take on a more determined approach to settling disputes. Parties should keep in mind that extensive involvement of legal advisers may present a significant additional cost, which may reduce the amount of any benefit going to the claimant. Disagreements about facts are often difficult to resolve. Generally, questions of legal entitlement are less difficult.
The prospect of legal proceedings should also force the parties to define the issues carefully. This exercise, in itself, can be very helpful in resolving disputes. Parties may realize that the dispute is really only over a few relatively minor matters. If parties are unlikely to win a dispute, they should carefully consider the value of compromise, taking the issues the issues of delay and cost into account. http://www.perthemploymentlawyers.com.au/