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When should an employee retain a lawyer?

Most employment disputes are not improved by the employee retaining a lawyer.

Legal representation is often expensive, and almost inevitably leads to a final breakdown of the employment relationship.  While lawyers can assist by providing background advice and drafting documents, overt participation will almost always destroy any possibility of ongoing employment.  Many processes in the Fair Work Commission are designed to exclude or minimise legal representation.  Further, because claims made under the Fair Work Act are generally not in a costs jurisdiction (meaning each party pays their own costs and cannot recover the costs from the other side) there is a danger that the legal costs will be more than any amount recovered.

There are, however, a few kinds of matters where legal representation may be warranted.  These include:

  • Disputes around restraints of trade.  These disputes are often complex, with employees potentially exposed to significant awards of damages if they are found to have breached a restraint of trade obligation (See for example this matter in which a former employee was ordered to pay $300,000 damages for breach of a restraint).
  • Disputes around significant unpaid wages, commissions or bonuses.  Unless the underpayment is more than about $25,000, legal representation is likely to consume most of the money recovered.  However, claims where there have been multiple employees underpaid on the same basis do often warrant legal assistance.
  • Disputes around sexual, racial, disability and other forms of discrimination.  This is true both for complainant’s (ie people who have been discriminated against or harassed), but also for those against whom allegations have been made.
  • Disputes around the termination of employment, including for unfair dismissal, adverse action, and a failure to provide adequate notice.
  • Disputes about registrations, licences and the like.  Money workers require a registration, licence or clearance to be able to work.  Without these ‘tickets’ the person cannot work in the area in which they are expert and qualified.

For other matters where smaller amounts of money are involved, or which, for example, involve workplace bullying or disciplinary proceedings legal representation is generally not warranted.  Trade unions can often provide excellent representation and support for members.

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