Significant case where employer wins costs against unfair dismissal claimant

[Newshound]

Law firm Deacons report;

JimRoy Pty Ltd (JimRoy) was successful on Wednesday when the full bench of the AIRC confirmed that an applicant, and her representative, Gary Dircks (Dircks), were jointly and severably liable to pay the former employer’s party-party costs as a result of their unreasonable conduct in an unfair dismissal claim against JimRoy.

The decision is a significant win for employers who may be the subject of unfair dismissal claims where the former employee decides to pursue a claim that has little prospects of success.

Read the full article here on the Deacons web site

[Mark D]

I've come up against the Dircks brothers before in unfair dismissal cases. This is a great outcome!

[CHankins]

On this note, the new Fair work act has noted that there is a preference for the parties to represent themselves in unfair dismissal matters. I think the unions will still get their foot in, but it will be interesting to see if this changes matters for lawyers.

A lot of them detract from the negotiation process, they will often object to reinstatement (as they are often paid on a commission basis) even when it may be the best outcome, and at other times extend proceedings so that matters take more time, so that they can charge more, as this case seems to suggest.

[kevinh]

Originally Posted by CHankins

On this note, the new Fair work act has noted that there is a preference for the parties to represent themselves in unfair dismissal matters.

This is presumably aimed at reducing costs for both parties, but I'm not sure it is very fair. If the parties are obliged to represent themselves, the employer probably has a range of options as to which staff member could represent their organisation at a tribunal hearing, but the employee has no choice.

Also, the employee may be intmidated by the prospect of representing themself, particularly if English is their second language and/or if they are not very good at expressing themself. This could result in employees not making a complaint about a genuine unfair dismissal. Indeed it is likely that employees that are the most vulnerable to unfair treatment would be the least likely to defend their rights.

While the practice of lawyers "chasing ambulances" and tempting plaintiffs with a "no win, no fee" deal is undesireable and of concern to employers, I feel it is important that the system has balance, so that the most vulnerable people in the workforce are offered the greatest protection.

[CHankins]

Without detracting from my original commment, i also agree with you Kevin. A common sense approach would be to ascertain if their is an imbalance of industrial knowledge as a basis for allowing representation, or also as you mention, where English is limited.