When things go wrong in an employment relationship and the employment contract is terminated, it can be difficult to understand the employment law which may be applicable. It is important to understand the relevant process. Our solicitors set out here the first steps of the process for both Unfair Dismissal Claims and claims that employers have taken adverse action against an employee (such as terminating employment) exercising a work place right.
As a first step, the disgruntled employee must make an application to the Fair Work Commission using the appropriate form. The application must specify the claim of the employee (such as if the employee is claiming they were unfairly dismissed). There are strict time limitations for commencing applications so you should get legal advice or our lawyers as soon as the incident arises so rights are not lost.
The employer should be cautious of the time limitations and ensure an appropriate response is lodged and served. Again, specific forms need to be used. It is essential that the employer protects its rights when completing the response because this document may be used in future litigation or court proceedings such as Federal Circuit Court applications.
Provided parties consent, the Fair Work Commission will hold a conciliation conference. This is a conference specifically for the purposes of assisting the ex-employee and the employer reach a negotiated solution.
It is highly recommended that you have a solicitor represent you at the conciliation conference. The presence of legal representation can assist you to protect your rights and also increase the chances of reaching a negotiated outcome- and therefore avoid further litigation and the cost, time, stress and unknowns involved in that.
In order to confirm the exact terms of any settlement reached, it is also important to document the agreement in a Deed of Settlement. A Deed should be carefully drafted by solicitors and the specific terms will need to be agreed between parties.
Aitken Whyte Lawyers can assist you in handling and managing a Fair Work Commission application including drafting any Deed as well as any ongoing dispute and litigation should the matter not settle at the conference. Obtaining legal advice before taking any steps is highly recommended.