DO I NEED AN EMPLOYMENT LAWYER?
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment law before acting or relying on any of its content.
A question that clients, or prospective clients, have asked me frequently in legal practice is “Do I need an employment lawyer?” for my employment dispute. It may seem a little odd for a client to ask a barrister or solicitor whether they need his or her services. Indeed, some may say that there is bound to be an element of bias in any answer that the lawyer gives. Nonetheless, it is an important question and what follows is my attempt to answer the question, objectively and dispassionately.
The answer to this question is “it depends”. It really depends upon whether you retain an effective employment lawyer. It is trite to say but if the employment lawyer you engage lacks professionalism – and provides substandard advice and advocacy – it may well be the case that you will be better placed representing yourself.
From my perspective, an effective employment lawyer can bring a number of benefits (and disadvantages). These include:
(1) An effective employment lawyer knows, and fights vigorously for, your legal rights.
(2) An effective employment lawyer is discrete. They understand the importance of tact and confidentiality, especially with regard to sensitive personal or company information.
(3) An effective employment lawyer is able to isolate and focus on the issues at the heart of the dispute rather than those that are likely to unnecessarily elongate the matter or aggravate the other side. He or she can also save you time and money by not pursuing arguments which are destined to fail.
(4) An effective employment lawyer understands the theory and the practice of law and knows how to customise it to your case. This is especially crucial in the convoluted, ever-changing and complex area of employment law.
(5) A lawyer is able to assess your matter and inform you:
Whether you have a viable cause of action. Understandably, clients can become emotionally invested in their matter to point that they cannot determine whether their complaint has merit. An effective lawyer is able to sort through any confusion and provide competent and relevant advice.
Whether the other side has a defence or adequate explanation for the complained conduct. Often clients concentrate on their own claim and fail to consider what the other side has to say. Considering your opponent’s point can provide you with a new perspective on your case, or an opportunity to resolve the matter early if it appears that their position has some merit.
(6) An effective employment lawyer readily understands relevant legislation. Knowing the right step to take, and the time permitted in which to do so, can often be the difference between success and failure.
(7) An effective employment lawyer will assist you in collating evidence and material supportive of your case and putting it to the other side in an effective and convincing matter.
(8) Experience matters – as clichéd as it sounds, if you had a serious medical issue you would probably go to the doctor. Similarly, if you have a serious workplace legal problem it is probably a good idea to seek out a lawyer.
(1) The chief downside cited when engaging an employment lawyer is the cost involved. While it is accepted that engaging a lawyer can be an expensive exercise, the costs need to be kept in perspective. For example, if you stand to lose your career or livelihood because of an employment dispute then the financial outlay may be warranted. If the expense of having a lawyer on your employment matter is too much then consider approaching LawAccess, Legal Aid or a Community Legal Centre. There are some excellent pro bono and reduced fee legal services that can be found with a bit of research.
(2) Passion. Sometimes passion can be a good thing and it is likely that your lawyer may not be a passionate about your case as you are. After all, it is you as an affected part in any employment dispute that is likely to be the one that has the most to lose or gain from any legal determination or outcome. However, too much passion – absent a strategy and an ability to look at your legal problem objectively – can be a serious liability.
Can I represent myself in an employment matter?
The right to self-representation exists for all legal matters, including employment law matters. For example, in a breach of employment contract dispute, both parties are entitled to represent themselves in court. However, it is important to recognise that self-represented litigants are typically faced with considerable challenges when they enter the court process without engaging lawyers to advocate for them.
Our legal system is an adversarial one in which the court has a passive role. The parties or their legal advocates are required to argue their case before the court. Self-represented litigants therefore face the difficult tasks of both understanding and presenting all relevant material to the court. A lack of understanding of the law that applies to an employment law matter can be a significant first hurdle to overcome. For example, amendments to legislation such as the Fair Work Act may be relevant to your case. Next there is the challenge of effectively communicating the information to the court clearly and concisely and in a way that complies with the rules of evidence.
The court system is laden with complex rules and processes which will likely be foreign to people representing themselves. Court etiquette and court orders may be difficult to understand. The level of emotional investment that self-represented litigants will have in their case also needs to be considered. A lack of emotional objectivity can have the effect of clouding a person’s judgement and impede their ability to argue their employment matter successfully.
The difficulties for self-represented litigants tend to be amplified in situations where the opposing party has engaged professional legal representation. This often creates an uneven playing field. Take, for example, an unfairly-dismissed former employee going up against a large organisation. And because the legal system is an adversarial one, the court’s ability to assist self-represented litigants is often limited.
It is not surprising then that studies demonstrate that self-represented litigants are less likely to be successful than litigants who have obtained professional legal representation (54% dismissed compared with 31%). They are also more likely to discontinue (24% compared with 20%) and be ordered to pay costs (68% compared with 38%) (Source: Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the Administrative Appeals Tribunal: A Research Note, Paper presented to the Sixteenth Annual AIJA Annual Conference Melbourne, 4-6 September, 1998).
Unfortunately, the New South Wales Bar Association’s Duty Barrister Schemes are not typically available for employment law matters, having been introduced to particular Local Courts to help people who cannot afford a lawyer, who do not qualify for legal aid and who have a matter before the court on the day. However the NSW Bar Association does have a Legal Assistance Referral Scheme (LARS) which may be able to be utilized by unrepresented litigants.
Community Legal Centres can also be a great source of assistance and it is recommended that you use Google to find such a centre in your local area. Universities, too, sometimes have schemes that can be accessed by those who cannot afford a lawyer.
If your attempts to obtain Legal Aid or other reduced fee services are unsuccessful, you may wish to consider legal publications such as the Law Handbook and Legal Information Access Centre at the State Library of New South Wales.
In South Australia, you may wish to consider seeking assisatnce from Justice Net.
By Sebastian De Brennan, Barrister, email: firstname.lastname@example.org