WORKPLACE RIGHTS, DISMISSALS AND RESTRAINTS
Employee disputes and litigation. Protect your position.
- Experienced senior lawyers
- Clear pricing guidance
- National practice
UNDERSTANDING EMPLOYMENT DISPUTES
Your Guide
An employment dispute is a legal disagreement between an employer and an employee or former employee about dismissal, workplace rights, entitlements or post-employment obligations.
Employment disputes commonly arise from dismissal, employee breach and use of confidential information, adverse action, unpaid wages or entitlements, discrimination, bullying, workplace investigations and post-employment restraints. The correct cause of action and forum matter because the Fair Work Commission, the Federal Circuit and Family Court of Australia and the Federal Court have different powers and procedures.
Dismissal-related applications can carry strict time limits – generally 21 days from the date the dismissal takes effect. Early advice should identify the claim, preserve evidence, assess reinstatement or compensation options and determine whether negotiation, conciliation or litigation best protects the client’s position.
Jaswinder Says
The first strategic decision is not simply whether to protect your business or fight - it is choosing the right claim, forum and remedy before the deadline expires.
— Jaswinder (Jas) Sekhon · Director / Principal
How the Process Unfolds
FROM WORKPLACE EVENT TO RESOLUTION
Employment disputes often move quickly because dismissal applications have short statutory deadlines and early conciliation is common. The process differs according to whether the claim concerns unfair dismissal, general protections, entitlements, discrimination or restraint enforcement.
Evidence such as contracts, policies, emails, warnings, payroll records and decision-making notes should be preserved at the outset. Many matters resolve at conciliation; contested claims may require witness statements, document production, expert evidence or court proceedings. The pathway below is a planning guide and must be adjusted to the remedy sought, the forum and any urgent application.
Dismissal or workplace dispute
Identify the legal issue, preserve documents, calculate entitlements and assess urgent steps such as restraint or injunction advice.
Lodge the application
Choose the correct claim and forum, prepare the application and lodge within the applicable statutory time limit.
Conciliation
The Fair Work Commission or parties explore settlement, reinstatement, compensation, references, confidentiality and release terms.
Evidence & hearing preparation
Prepare witness evidence, submissions, document production and the legal theory required for arbitration or court.
How we instruct, brief and work with Barristers (Counsel) - our litigation strategy.
Hearing or negotiated outcome
The matter is determined, settled or converted into enforceable terms dealing with money, employment status and releases.
How we instruct, brief and work with Barristers (Counsel) - Our winning litigation strategy.
Remedy, enforcement or appeal
Implement orders or settlement, recover entitlements, enforce restraints or consider appeal and judicial review options.
How much does an employment dispute cost?
INDICATIVE CUMULATIVE COSTS AND TIME
The cost pathway depends on whether the matter resolves by direct negotiation, Fair Work Commission conciliation, Commission hearing or federal court litigation. Short limitation periods can compress the first stages, while contested evidence and multi-day hearings can extend the overall timetable.
Costs in the Fair Work Commission are not ordinarily awarded simply because a party wins, whereas court proceedings involve a different costs risk. A staged strategy should compare the value of the remedy with the time, disruption, reputational risk and legal spend required to obtain it.
| Initial Case Assessment | Conference, review of the key documents, advice on prospects and strategy, and a written estimate for the matter. The client decides whether to proceed. |
|---|---|
| Pre-Action Resolution | Letter of demand or response, without prejudice negotiation, and any pre-action procedures that are compulsory in the jurisdiction. A large share of matters resolve here. |
| Commencement / Defence | Originating process, statement of claim or defence, initial affidavits, counsel settling the pleadings, and the first directions hearing. |
| Discovery & Evidence Management | Discovery, subpoenas, lay and expert evidence, interlocutory applications and further directions. Usually the largest single increment in the matter. |
| Mediation / Conciliation | Position paper, brief to counsel, attendance at mediation or a court-ordered conference, and a settlement deed if the matter resolves. The last realistic off-ramp before hearing. |
| Trial Preparation & Hearing | Hearing preparation, brief to counsel on hearing, written submissions, the hearing days themselves, and judgment. |
| Costs Recovery / Enforcement | Costs argument, costs schedules and assessment, and enforcement of the judgment where required. Only reached by matters that run to judgment. |
| Inclusions and exclusions | These figures are our professional fees only. They exclude GST. They exclude barristers’ (counsel) fees, which are charged separately. And they exclude disbursements such as court filing fees, expert reports, mediator’s fees, transcript, process server and search costs, which vary widely between matters and are charged at cost. |
|---|---|
| Estimate, not a quote | These are indicative estimates for a matter of ordinary complexity. They are not quotes and they are not a costs disclosure. Before we start work we give every client a written costs disclosure and costs agreement under the Legal Profession Uniform Law (NSW), with an estimate specific to their matter. |
| How our estimates work | We scope each stage and estimate the hours it should take, and we work to that estimate. If something happens that will take the matter beyond it — an interlocutory application, a new party, a contested expert, disclosure that turns out to be far larger than expected — we tell you before the work is done, explain why, and give you a revised estimate. You will not receive an invoice that is the first you hear of it. |
| Cumulative, not per stage | Each figure is the total cost from the start of the matter to the end of that stage. A matter that resolves at Stage 2 costs the Stage 2 figure and nothing beyond it. Most matters resolve well before trial. |
| Barristers (counsel) | Most litigation involves a barrister. Counsel’s fees are charged separately and are not included in the figures above. We cannot give a single figure for them because they depend on the seniority the matter calls for and on which counsel is available when the work is needed — junior counsel, senior junior and senior counsel sit at very different rates. We identify the right counsel for your matter, obtain a fee estimate, and tell you what it will cost before we brief them. How We Use Barristers and Counsel |
| If you are unsuccessful you may pay the other side’s costs | In most civil litigation costs follow the event: an unsuccessful party is usually ordered to pay a portion of the successful party’s costs in addition to its own. Recovery on the ordinary basis is typically 60 to 70 per cent of the costs actually incurred, so even a successful party rarely recovers everything it has spent. You should budget for this before commencing proceedings. |
| Family law is different | In family law each party usually bears their own costs under s 117 of the Family Law Act 1975 (Cth), and costs orders are the exception rather than the rule. |
| What moves a matter to the top of the range | Urgent or interlocutory applications, multiple parties, cross claims, contested expert evidence, international elements, uncooperative disclosure, and appeals. We tell you as soon as we think your matter is heading above the range we gave you. |
Employment litigation should be budgeted against the value and type of remedy, the availability of reinstatement, the strength of documentary evidence, witness complexity and whether the dispute remains in the Commission or proceeds to court.
Indicative planning ranges only. Figures exclude GST and disbursements unless stated and must be confirmed in a matter-specific written estimate.
Videos, Guides and Articles
INSIGHTS AND PRACTICAL GUIDANCE
VIDEOS & GUIDES
Voluntary administration, liquidation and receivership
Who controls the company, what happens to claims and how creditor rights differ.
Voluntary administration, liquidation and receivership
Who controls the company, what happens to claims and how creditor rights differ.
ARTICLES
ASSET PROTECTION MOVES INTO THE MARRIAGE? GAMBLING & WASTEFUL SPOUSES.
1. What is the issue?
The issue is whether “addbacks” — assets wasted, spent, or hidden by one spouse — can
Court Intervention Held Necessary For General Dysphoria-Related Medical
Keywords: Family Law, Medical Procedures, Childhood gender
Full Court of Family Court Finds No Child Support Resulting Trust Favouring the
What is the Issue?
The case of Bass & Bass and Anor [2016] FamCAFC 64 (29 April 2016) was heard in
Protect your business or position before the employment deadline passes.
- Urgent unfair dismissal and general protections filings (21-day limit)
- Restraint-of-trade and confidential-information injunctions
- Fair Work Commission conciliation and hearing representation
Key terms defined
GLOSSARY - EMPLOYMENT LAW TERMS
Unfair dismissalharsh, unjust or unreasonable dismissal under the Fair Work Act 2009 (Cth)
General protections
(adverse action)a stalemate usually between 50/50 owners that stops the company being managed.
Genuine redundancyrole no longer required; consultation/redeployment met
Restraint of tradeenforceable only as reasonably necessary
Constructive
dismissalforced resignation treated as dismissal
Fair Work
Commission (FWC)national workplace tribunal.
Frequently Asked Questions
COMMON QUESTIONS
Employment claims are governed by short, strict deadlines. If you have been dismissed, the single most important thing to know is the 21-day rule. These answers explain the process from lodgement to appeal.
21 days from the day the dismissal takes effect. The same 21-day limit applies to a general protections dismissal application in the Fair Work Commission. The deadline is strict and late applications are only accepted in exceptional circumstances, so act immediately rather than waiting for a final pay slip or separation certificate.
Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable the focus is on fairness and process. General protections asks why you were treated badly: was it because you exercised a workplace right, made a complaint, have a protected attribute, or took part in union activity? General protections claims have no compensation cap and can cover conduct short of dismissal.
A Commission conciliator runs a confidential telephone conference with both sides, usually within a few weeks of the application. The conciliator does not decide who is right they test each side’s case privately and help you explore a settlement. Most matters resolve at this stage, commonly for a payment and an agreed statement of service.
Usually not. The starting position under the Fair Work Act 2009 (Cth) is that each party pays its own costs, even the winner. Costs are ordered only in limited cases for example where an application was made vexatiously or without reasonable cause, or where it should have been obvious it had no reasonable prospect of success.
Reinstatement is the primary remedy under the Fair Work Act, but it is rarely ordered in practice. Where reinstatement is inappropriate the Commission can award compensation for lost earnings, capped at the lesser of 26 weeks’ pay or half the high income threshold $95,050 for dismissals taking effect in 2026–27. Compensation cannot include an amount for hurt, distress or humiliation.
Sometimes. A restraint is void unless the employer shows it goes no further than is reasonably necessary to protect a legitimate business interest, such as confidential information or client connections. Courts look closely at how long it runs, how wide the geographic area is, and exactly what activities it bans.
Yes, through different pathways. Unpaid wages, leave and other entitlements can be recovered as a small claim in the Federal Circuit and Family Court or a state court, or with help from the Fair Work Ombudsman. Superannuation is enforced by the ATO, and since 1 January 2024 it is also a National Employment Standards entitlement, so underpaid super can be pursued under the Fair Work Act as well.
Keep everything, and do it now. That means your contract, position description, workplace policies, payslips, performance reviews, warnings, emails, text and chat messages, the termination letter, and your own dated notes of meetings. Write down who was present at key conversations while it is still fresh.
Only in exceptional circumstances. The Commission weighs the reason for the delay, when you first knew of the dismissal, any steps you took to dispute it, prejudice to the employer, the merits of the claim, and fairness compared with other employees. Being unwell or waiting for legal advice is usually not enough on its own.
Some decisions can. An appeal to a Full Bench of the Commission requires permission, which is granted only where it is in the public interest and for unfair dismissal you must also show significant error of fact. The deadline is short (generally 21 days). Separate judicial review may be available in the Federal Court.
Call 1300 343 560
