If an employee has brought a claim, such as an unfair dismissal or general protections claim, employers are faced with the decision of attempting to defend the claim themselves or getting an expert lawyer involved. Often, the decision which led to the claim was personally made by a senior leader in the business and that person wants to defend themself as a matter of pride, or the business becomes of the view that, if an employee can represent themselves, then they can represent themselves too.

Self-represented employers commonly find themselves having ‘bit off more than they can chew’ and experience difficulties in defending a claim. In this article we explore the common difficulties faced and errors made by self-represented employers in the Fair Work Commission (Commission).

Not identifying the issues

Every case ultimately turns on its facts. It is up to both the employee and the employer to put the relevant facts before the Commission. Simply, if the facts aren’t presented, they won’t be considered.

Self-represented employers often fall into the trap of being distracted by irrelevant or non-issues in an attempt to paint the employee in a bad light and the employer is a good light. This will often lead to employers failing to address the real issues that a Commission member will consider. For example, if a case concerns an unfair dismissal, a member 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 all the things they view they’ve done to benefit the employee 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 mount a defence that disproves this.

Not articulating the issues

In the same vein as not identifying the issues, even if an employer identifies the issues of a claim if they cannot properly present their case, then they will likely be unsuccessful. Submissions need to address the issues, and the 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 ammo, but not being able to load and fire the gun.

Employers need to be aware of how to present and argue their case. If an employer can merely only state what occurred, 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 willing to compromise

A final pitfall is letting emotions getting in the way of being able to reasonably resolve a case. Even the best cases may benefit from a compromise. A case that goes to final hearing will ultimately result in a public decision displaying the names of the business and employees involved, and what occurred.

Self-represented employers, particularly small businesses, often suffer from being unable to put aside that the decision made may have been wrong or that it may be in the businesses best interests to compromise (either from a financial or reputational view).

Employers should be aware that settling a claim does not involve admitting liability, and ultimately saves the time, stress, and cost of having to run a claim all the way to a hearing and then awaiting a decision.

Conclusion

At the end of the day, self-represented employers run the risk of being in an arena they don’t have experience with and 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 7358 245).