There are various risks associated with filing your own Fair Work Commission application prior to seeking legal advice.
What if I submit the wrong claim?
There are numerous claims available under the Fair Work Act 2009 (Cth), namely unfair dismissal, general protections and an application for an order to stop bullying. There are nuances between each type of claim and their distinctions may be ascertained upon careful reading of the Fair Work Act 2009 (Cth).
If you make an application to the Fair Work Commission, however upon seeking legal advice, subsequently discover that a stronger claim could have been made, it may be possible to discontinue the current application and lodge another application, provided you lodge another application within 21 days of the termination of your employment. The current Fair Work Commission application filing fee is $68.00 and increases yearly.
If you are seeking to lodge an application outside of the 21 day time limitation, it is usually very difficult to establish grounds for seeking an additional time period.
For example, an employee has been refused an extension of time despite first lodging a general protections application outside of the 21 day time limitation period and then subsequently lodging the correct unfair dismissal application. The employee did not seek legal advice and experienced technological issues during submission: Craig Fitzpatrick v T S & D E Cowcher Farms Pty Limited t/a Derek Murray & Co [2015] FWC 3600.
Refer to Can I still lodge an application with the Fair Work Commission after 21 days if I have been negotiating with my employer?
What do I write in my claim?
Each claim requires certain criteria to be satisfied before the Fair Work Commission may find in your favour in the event of a determination. Each Fair Work Commission application form provides some guidance as to what information to provide.
However if you file your own Fair Work Commission application you bear the risk of providing insufficient and inaccurate information in your application to substantiate your claim, regardless of its merits.
What happens if I receive notice of a conference or conciliation?
Prior to any determination made by the Fair Work Commission you will be required to attend a telephone conciliation, in the case of an unfair dismissal application or a conference, in the case of a general protections application. This is an opportunity for you to negotiate and communicate with your employer in a relatively neutral way with the assistance of a conciliator or commissioner.
The rates of successful outcomes for a self-represented employee at conferences and conciliations vary depending on your relative bargaining positions and merits, primarily, whether your employer engages a legal representative or if a human resources representative attends.
If you attend the conference or conciliation without legal representation and no outcome is reached, there are various next steps available It is possible seek that the Commission deal with the dispute by arbitration or for a determination. It is also common to commence proceedings in the Federal Circuit Court. The Federal Circuit court application fee for unlawful termination of employment (general protections) is currently $68.00 and increases yearly.