Employment Law Litigation

Employment law litigation involves disputes between employers and employees. This encompasses a wide range of issues, from workplace discrimination and harassment to wage disputes and unfair dismissal. Many employment law disputes are resolved at the Fair Work Commission (FWC), but other employment litigation is heard in the federal courts, state courts, and the Australian Human Rights Commission (AHRC).

Legislative framework for employment litigation

The laws that govern employment litigation in Australia are made up of federal, state and territory legislation and precedents from the common law (that is, previous employment case law). The chief federal legislation governing employment litigation in Australia is the Fair Work Act 2009 (and the Fair Work Regulations 2009). Other federal laws, such as the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 provide further protection for employees against harassment and discrimination. Additionally, there are state and territory laws that prohibit discrimination against workers with protected attributes or those who exercise workplace rights.

Adjudication bodies for employment litigation

The Fair Work Act established the Fair Work Commission (FWC) to play a crucial role in resolving employment disputes, such as unfair dismissal and adverse action claims. The FWC provides an avenue for resolving disputes outside the normal court systems, which can be swifter and more cost-effective.

Other employment disputes must be resolved through court litigation. This generally begins with a complaint to a relevant body, such as the AHRC for a discrimination claim. Even in such cases, the parties often attempt to reach a resolution or settlement through mediation or conciliation outside the courtroom. If the matter is not resolved through alternative dispute resolution, it may proceed to a hearing or trial, where the parties will present evidence and the court will render a decision and order remedies to any wronged parties.  

Common types of employment litigation

In Australia, unfair dismissal claims are an increasingly more common form of employment litigation. If an employee is terminated in a manner that they consider harsh, unjust, or unreasonable, they can file an unfair dismissal claim with the FWC. In order to make this claim, the employee must have been employed for a minimum of six months (or 12 months for small businesses). The FWC assesses whether a claim is justified, considering whether the employer had a valid reason for dismissal and displayed procedural fairness during the termination.

Adverse action claims arise when a worker alleges that their employer treated them unfavourably because of a protected attribute (such as sexual orientation or race) or because they exercised a workplace right (such as making a complaint about safety concerns). The Fair Work Act provides employees with broad protections against adverse action, with the onus on the employer to prove that the unfavourable treatment was not taken for a prohibited reason.

Workplace discrimination and harassment cases are also significant areas of employment litigation. As employers have a legal obligation to prevent discrimination and harassment in the workplace, employees can bring litigation against employers who fail to discharge this duty. Workers can bring claims under one of the anti-discrimination laws if they believe they were discriminated against because of a protected attribute such as race, sex, disability, or age. Harassment claims typically involve behaviours that create a hostile work environment.

Other common employment litigation involves claims of underpayment, non-payment of wages or inaccurate classification of employees. The Fair Work Ombudsman (FWO) oversees compliance with wage laws and can take enforcement action against an employer who violates these laws.

There are often discernible trends in employment litigation related to the broader socio-economic context and world events. Astute employers remain aware of these developments and implement robust policies and procedures proactively to mitigate the risk of related employment litigation. For instance, in recent years, trends in employment litigation have included a sharp rise in claims related to mental health and workplace bullying, a surge in litigation relating to remote work arrangements, and the emergence of claims concerning workplace vaccine directives.

Reducing the risk of employment litigation

Employers can take steps to minimise the risk of employment litigation by introducing:

• employment contracts that create clear expectations about employee roles, responsibilities, and terms of employment;
• workplace policies that comprehensively cover areas such as harassment, discrimination, bullying, and grievance procedures;
• regular training for managers and employees on workplace rights and obligations, particularly on harassment and discrimination;
• fair and legal processes for any workplace investigations, disciplinary actions, or dismissals; and
• prompt resolution of any disputes or complaints.

The employment law solicitors at Go To Court can navigate this complex legal landscape to help employers meet their obligations and employees understand their workplace rights. Our solicitors regularly act for clients on matters before the tribunals, and state and federal courts. Some cases require aggressive litigation, while other matters can be successfully negotiated without the expense of protracted litigation. Contact Go To Court Lawyers on 1300 636 846 for any assistance with employment litigation.