The truth is that not every workplace dispute or complaint has a neat legal solution. Most of the time there will be no government agency to solve the problem so it is necessary to consider private legal action. It is wise to consider the best option for a particular dispute or complaint before launching into legal action. There can be a significant price to pay for failure to do so.

Let’s take termination of employment. Sacked employees are able to commence a statutory unfair dismissal claim in the Fair Work Commission (FWC) unless a statutory exclusion applies. But the maximum remedy is limited to reinstatement and/or up to 6 months pay as compensation for loss of income. It may be superficially attractive to instead commence a Fair Work Act breach of general protections claim as there is a reverse onus on the employer and no cap on remedy. However, this type of claim is usually neither quick, cheap, simple or certain in outcome. If a FWC conference does not resolve the general protections claim then it will usually be necessary to undertake a judicial process in the Federal Circuit and Family Court (FCFOA) or the Federal Court (FCA) which can take years and leave an applicant open to costs orders if they lose.

Workplace bullying and sexual harassment cases can be dealt with by applying to the FWC for “stop” orders AND/OR the Fair Work Act general protections regime OR making complaint to a state discrimination/human rights commission and then tribunal OR the federal human rights commission and then the FCFOA or FCA AND/OR a workers compensation claim. Each of these avenues has its pros and cons. There is no direct avenue to make a claim for compensation for workplace bullying, with the workers compensation injury system being the closest. Reasonable management action taken in a reasonable way is not workplace bullying. Discrimination law is also deceptively complex, often relying on artificial comparators. Got that?

Wage claims can be pursued through the FCFOA or FCA OR the small claims process in the FCFOA for amounts under $20,000 for some but not all entitlements. Some state industrial commissions can now deal with Fair Work Act claims by private sector employees OR claims can be made in state civil courts. Some courts have simplified processes and rules for smaller claims. Some of these avenues allow lawyers as of right and may award costs to the losing party (but this does not mean “all” costs) and some have a general self representation and own costs rule. Still with us?

But not every dispute or complaint has a clear avenue like the above (yes, that is tongue in cheek). A dispute about being able to take annual leave for instance (a National Employment Standard right) at a particular time will not generally be able to be dealt with by the Fair Work Commission unless there is an industrial award or enterprise agreement dispute process which allows it (and this is not usual). Even then, award dispute processes do not generally allow for compulsory arbitration, only conciliation. If an enterprise agreement applies, it is necessary to consider whether it allows for arbitration.  Disputes about decisions to reject workplace flexibility requests or extension of parental leave applications may be able to be dealt with by the Fair Work Commission but only if agreed in a contract of employment or enterprise agreement and only in relation to the existence of reasonable business grounds for the decision.  Many employment complaints revolve around alleged improper performance management. But unless an enterprise agreement or contract of employment or policy allows it, there is generally no avenue to challenge unfair performance management unless it amounts to workplace bullying or a breach of general protections rights. There is often no enforceable right to procedural fairness of itself.

What happens if you commence a particular type of claim and then realise you have made the wrong choice? It may not be possible or easy to stop one claim and start another. A time limit may have passed and you may face an application for costs in discontinuing a current claim. Practical issues also need to be considered. The Fair Work Commission can be a daunting place even though it is one of the most lay person friendly jurisdictions that exist. Courts where lawyers have automatic rights of appearance are another ballgame altogether. The likelihood of a positive outcome (whatever that may be) needs to be weighed up against the time, cost, emotional investment and prospects of success of action. Injustice is no guarantee of early success and it is never wise to gamble on the other side caving in without “going to court”. You may have a long time to regret a hasty or ill considered decision.

The lesson is to carefully consider your options and weigh your prospects of success against the various costs involved before commencing legal action. This will pay dividends in the long run, even if the ultimate decision is only a limited form of litigation or no litigation at all. As much as you try, square pegs are difficult to fit into round holes. Please contact us if you would like any further information or help.