- April 10, 2024
- Posted by: legaleseblogger
- Category: Related News
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## Situation Overview
I am currently facing a legal battle with my former employer after being terminated and filing a claim for unfair dismissal with the FWC. Despite my former employer receiving my claim, they have not yet prepared their response prior to conciliation. However, I recently received notice that they have now submitted a Form F53 and have hired a paid legal representative to defend them. This has raised concerns for me, as my former employer has a history of being petty and malicious, especially during my termination. Additionally, the company is small with only around 20 employees, and my claim involves a substantial amount of $47,500.
## Potential Challenges and Concerns
Given the behavior of my former employer, I am worried that they may attempt to intimidate me or even file a counterclaim against me. The fact that they have hired a legal representative to defend them further adds to my apprehensions. While their defense has not mentioned any counterclaim yet, it does contain unpleasant accusations and even outright lies. Despite this, I am trying to remain positive and hopeful that the situation will not escalate any further.
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****** just grabbed a
Hopefully the lawyer is competent. They’re the best kind to deal with.
I know people love to crap on lawyers but you’re in a better position dealing with a lawyer because they’re less likely to be petty.
They can also advise their client on prospects and that may help you.
Good luck.
It’s a small company and they likely won’t have in-house legal. With a claim of nearly $50k at stake they would be silly not to engage outside legal assistance.
FW work in terms of weeks’ Pay. The average payout is a about 8ish weeks. Unless it’s very very damning, no one gets near the maximum which is 26 weeks. Does that change your view?
$47,500?
What for exactly?
Are you represented?
A person requires the permission of the FWC to be represented in a matter before the commission member. You could challenge that on many grounds and request the FWC decline permission.
You have the details of the lawyer. You could reach out and have a without prejudice discussion with their lawyer prior to the conference to see if settlement is on the table, and also to advise if this goes to conference/hearing you would challenge their request to be represented.
Very standard practice to get a lawyer involved… HR law is complex and different to running payroll, most smaller private companies don’t have a HR consultant on the books, so when something like this happens they get a consultant in.
The claim for $47,500 is your claim. The company has the right to put forward their own version of events. The lawyer on their side will be working with the payroll and accounts people to identify what records there area and what obligations were met. Just because you say you are owed that doesn’t mean you are right. And doesn’t mean that you are wrong.
Don’t see an offer to settle as anything other than a reasonable attempt to resolve this before it goes to court. Courts view this favourably – courts hate having to argue this shit through, so if someone in good faith says “Yeah, you are right, we screwed up, here’s a payment of $$$$ to make this right, please sign this agreement” then they are trying to make amends. Your lawyer should advise you what happens if you settle like this – if it’s a fair amount, and that an NDA or no counter claim/no further recourse statement is very normal. Why settle something with a cheque if a person can come and drag you through the courts again?
Going to court will cost the company a serious chunk of change. You aren’t likely to have large amounts of your own costs (if you engage a lawyer) covered in teh settlement either. Often companies will settle if the amounts are smaller than you’ve quoted here because it’s just cheaper than dealing with court. It will be a ‘no admission of guilt‘ style of settlement then usually too.
Will they try to counter claim? Well it’s a different legal matter if they do. Depending what their argument is… if you stole their customer and supplier lists, set up a competing company with the name spelt one letter different, and set fire to their server room on the way out you probably will face a range of legal actions. But if you left with reasonable notice, didn’t do any corporate sabotage on the way out, gave notices in the legally proper way, returned equipment, and didn‘t shit in the farewell cake mix… what claim will they have against you anyway? If they are going to say “He didn’t work the full hours he claims” then that’s about your $47k claim, not a counter claim. If they say “He stole $10k in pencils” then that’s a civil matter and they will need to establish separate court proceedings for it. I wouldn’t worry about this issue to be frank, unless you’ve done something they can really use against you, and is valued at more than $20k or so.
Most managers or HR don’t know how to fight this, so they’ll employ a pro…. Rarely ends well for you though, if you get a settlement offer that isn’t terrible take it and run (especially if they cover your lawyer)
OP you really need to speak to an employment lawyer for advice.
You can contest representation and you should. There’s factors to consider but you would ultimately be relying on that you’re self represented. There’s a few determinations on this but sadly most Commissioner’s are likely to grant leave to appear because it makes the process easy as opposed to a cowboy employer doing the representation.
If you were successful in your claim, the FWC uses the Sprigg formula to determine compensation. Unless you have been employed for 20 years without blemish and the dismissal was either harsh, unjust or unreasonable – you are not getting 26 weeks. Average is about 6 to 8 weeks and even much lower in some industries.
You will be pressured to settle before arbitration. Either in the first Conciliation or the member assisted conciliation which usually (but not always) happens before arbitration.
Arbitration also means a public decision. Any employer who googles your name could see this. Even if you win, you probably don’t want that out there. If you’re nearing the end of your working life you might not care. If you’re younger, use caution with this.
You will be tied into a deed and if it’s the standard FWC deed you can’t bring further claims against the employer.
If you are alleging sexual harassment go through the human rights commission. Not sure what state you are in but QLD has vicarious liability for employers. If you were injured as a result of the conduct, speak to a lawyer about a common law injury claim.
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I’ve had experience with this on the employer side. Honestly it depends on the personality of the executive – sometimes they’ll pay way more in legal fees to screw you out of principle than it would cost to pay you out. Sometimes they just want it over and done with, so they’re happy to pay you to go away. But engaging a lawyer is very normal. They will definitely want to defend their position.
been on both sides actually.
It doesnt mean much if they are represented. No more worried than any other time.
They should hire a lawyer that’s just being competent imho. It doesn’t mean you need to interpret it negatively
Hopefully as well you kept written records of what you are owed, knowing they are likely to be petty.
Good Luck.
How do you justify $47,500? What does it consist of?
That’s a lot of money and you’d be well advised to at least seek legal advice. You could find yourself up for their legal costs under certain circumstances.
The absence of a counterclaim indicated that they are not seeking recompense for you? It sounds like they consider your dismissal not to be unfair and that’s what they’ve set out.
Your claim is for $47,500 what is this for? If you are just claiming the cap with no proof good luck. Make an offer to settle for a reasonable amount and it wont be worth them hiring a lawyer as it will cost more than u are asking. Also FWC will view favourably that you have put out the olive branch to settle. Otherwise expect them to lie about you casting doubt on your claim.
You need to have proof of what you are claiming.