Defending employee claims: Common pitfalls to avoid

Have you considered what your business would do if you faced an unfair dismissal or general protections claim? Would you attempt to defend the claim on your own, or opt to seek expert legal assistance? It can be tempting to defend a claim without help, with the hope of cutting costs or ‘sticking it’ to the employee directly. However, self-represented employers often find themselves overwhelmed by the process of the Fair Work Commission (Commission) and face subsequent difficulties in successfully presenting and winning their case.

In this article, we will explore the common mistakes made by self-represented employers in the Commission.

Not identifying the issues

The role of the Commission is to consider the facts presented to them and make a decision on that basis. If the Commission is not informed of relevant facts, they simply won’t be considered.

A common trap for self-represented employers to fall into is presenting too much, or irrelevant, information. Excessive information is often provided by employers in order to detail the relevant employee’s extensive conduct and performance history. While it is important to demonstrate this to an extent, self-represented employees can get lost in this story-telling and overload the Commission with irrelevant information.

This overloading can easily result in the Commission failing to consider relevant information, which can be debilitating to the employer’s case. For example, if a matter concerns an alleged unfair dismissal, a member of the Commission will want to know why the employee was dismissed and what process was undertaken. If an employer instead focuses on the employee’s character or the numerous errors they’ve made over the life of their employment – the employer is missing the issue.

Employers need to be aware of the claim that has been brought and what the employee needs to prove, so that they may prepare a fitting defense.

Not presenting a convincing case

In the same vein as not identifying the issues, if an employer cannot properly and convincingly utilise the relevant facts to defend the claim, then they will likely be unsuccessful. Submissions must address the issues and support the employer’s actions, and these submissions need to be supported by facts.

Self-represented employers often find themselves being able to say what happened, but not being able to argue why those facts disprove the employee’s case. This is akin to having a gun and ammunition, but not the ability to load and fire.

Employers need to be aware of how to present and argue their case. If an employer can merely only state what occurred, rather than what it proves about the claim, it will be hard to convince a decision maker of why they should decide in the employer’s favour.

Missing deadlines

A simple yet common mistake made by self-represented employers is missing filing deadlines. An easy way to get off-side with a Commission member is to not follow their orders.

If a Commission member issues directions which proscribe set dates and times material needs to be filed by, employers need to file material by those times.

Not being willing to compromise

A final pitfall is letting emotions get in the way of being able to reasonably resolve a case. Even the strongest cases may benefit from compromise. A case that goes to final hearing will ultimately result in a public decision, displaying the names of the business and employees involved, the details of related incidents and timeline, and the final outcome.

Self-represented employers, particularly small businesses, often suffer from being unable to accept that their treatment and management of the employee may not have been aligned with best practice standards, or that it may be in the business’ best interest to compromise (either from a financial or reputational point of view).

Employers should acknowledge that settling a claim does not have to involve admitting liability, and ultimately may save time, stress, and cost associated with managing a claim all the way to a hearing and decision.

Conclusion

At the end of the day, self-represented employers run the risk of being in an arena in which they have no experience, consequently becoming misguided in trying to run their own case. It is always recommended that you seek legal advice as soon as you become aware of a claim to assess your options.

If your business requires assistance with a claim, please do not hesitate to contact NRA’s Workplace Relations team for a confidential discussion on 1800 RETAIL (1800 738 245).