{"id":934,"date":"2018-07-24T05:11:34","date_gmt":"2018-07-24T05:11:34","guid":{"rendered":"http:\/\/workplaceculturematters.com.au\/?p=934"},"modified":"2018-07-24T10:51:28","modified_gmt":"2018-07-24T10:51:28","slug":"no-win-no-fee-the-seven-must-ask-questions","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=934","title":{"rendered":"No Win, No Fee: The seven must-ask questions for Employee litigants"},"content":{"rendered":"

With the growing proliferation of \u2018no win no fee\u2019 and contingency based employment litigation agents, it\u2019s easy to presume that this as a positive move for \u2018access to justice\u2019 for employees. \u00a0But sadly, an undercurrent within this trend is having the opposite effect.<\/span><\/p>\n

<\/p>\n

Never look a gift horse in the mouth \u2013 right? Sadly, it\u2019s not that simple. When the \u2018gift horse\u2019 makes promises that seem a little too good to be true, with the assurance that you can \u2018<\/span>pay me later\u2019<\/span><\/i>, I think it\u2019s a good idea to check its teeth before diving all of the way into its mouth. \u00a0<\/span><\/p>\n

Employees have one shot at challenging their dismissal, and this is generally an action that has to be taken within 21 days. When the arrangement involves signing your entire cause of action over to an unregistered agent, with no recourse against them, and no hope ever getting it back or having another go, there are a couple of key considerations that are worth exploring before signing on the dotted line. \u00a0<\/span><\/p>\n

    \n
  1. What are the costs if you do win?<\/b>
    \nThis is an important question. Contingency arrangements have traditionally only been sustainable in legal contexts where the prospects of at least some type of compensation can be assessed before accepting the engagement in the first place (personal injury and wills &\u00a0estates being the classic examples). \u00a0In employment litigation, there are no guarantees of anything. So the awkward question then becomes, how do these lawyers or agents afford their business overheads? How do they still have flashy cars and private school fees? Even an expert \u2018<\/span>no win no fee<\/span><\/i>\u2019 practitioner would have to budget for losing at least some of the time. \u00a0The reality is that those clients that win pay more to make up for the clients that lose. Check the fee arrangements in some detail before you get too excited about the potential savings. \u00a0<\/span><\/li>\n
  2. What is your maximum compensation?<\/b>
    \nIt pays to do some research on what your likely compensation will be if you are successful, and in particular, what is a typical settlement amount prior to your case being litigated at a hearing. \u00a0This information is readily available via google, and is important to establish before signing over your only cause of action. In the Unfair Dismissal jurisdiction, 26 weeks\u2019 wages is the maximum possible under the<\/span> Fair Work Act 2009<\/span><\/i> (Cth). \u00a0Typically, this amount is only ordered by the Fair Work Commission following a determined hearing, and only in the most serious of cases, involving aggravated \u2018unfairness\u2019 to a long serving employee. \u00a0Typical settlement amounts reached prior to a hearing, during a conciliation conference can be anywhere from 2 to 10 weeks\u2019 pay depending on the income and circumstances. Many employers will arrive at the conciliation determined not to make any financial offer, but willing to consider other things such as re-characterising the dismissal as a resignation, or offering a statement of service. \u00a0These things may have value in the circumstances, but being tied to a \u2018<\/span>no win no fee<\/span><\/i>\u2019 arrangement may take them off the table until such time as they are no longer worth the paper they are written on. \u00a0<\/span><\/li>\n
  3. How does this potential compensation compare to the fees being charged at the various stages of matters?
    \n<\/b>Typically,<\/span> the bare minimum costs of<\/span> professional representation all the way to an unfair dismissal arbitration at the Fair Work Commission will be somewhere between $15,000 and $20,000. As a general rule, the legal costs of parties are almost never awarded against the other party in unfair dismissal, which means even if you win, you don\u2019t get your costs back. \u00a0As a rule of thumb, therefore, employees earning less than $60,000, with less than five years\u2019 service, will rarely break even if they win.<\/span><\/b><\/b> <\/p>\n

    If you are quoted a fixed amount, such as $4,000 up to and including the conciliation, then compare this to an amount equal to 6 to 10 weeks\u2019 pay, because this is about as far as most employers will go in a conciliation. \u00a0If this compensation amount is less than the fees you have been quoted, there is a good chance you will walk away with nothing, and you will have lost your chance at the cause of action, and signed away all the compensation you were given to a paid representative. In this situation, many of these lawyers and agents will suddenly seem a lot less interested in helping you achieve \u2018justice\u2019 than they originally were when they took you on.\"Money<\/a><\/li>\n

  4. How much control will you have over settlement?
    \n<\/b>If a settlement offer is made, you need to consider how much control will you retain. \u00a0Has the \u2018no win no fee\u2019 practitioner committed to seeing your case through all the way if you are not happy with settlement options? \u00a0Or can they force you to settle in a situation where they end up getting paid and you get nothing? Perhaps even worse, are they able to discontinue representation if things are heading south, but still charge you? \u00a0Or if it all gets too stressful and you want to stop the claim, can you walk away, or will they still charge you? Read this fine print carefully. There are often hidden costs in this type of arrangement.<\/span><\/li>\n
  5. What happens with settlement amounts?
    \n<\/b>Who will the settlement amounts be paid to? \u00a0Have you signed over your entitlement to receive the funds? \u00a0This is an important consideration in situations where you achieve a result of sorts, but you wish to challenge your legal fees. \u00a0If settlement funds are paid directly to your agent, you will lose practically any opportunity to challenge the fees that you are subsequently charged. \u00a0This is especially the case in relation to non-lawyer paid agents, who are not governed by the Legal Professional Uniform Law 2015.<\/span><\/li>\n
  6. Is the person you are using a registered legal practitioner?<\/b>
    \nIf everything else above checks out, this is extremely important. \u00a0This is not because lawyers are necessarily better or more knowledgeable than non-lawyer agents (although in truth we are). \u00a0The reason this is important is two-fold. Firstly, when you are represented by a lawyer, all of your discussions are subject to professional legal privilege. \u00a0Secondly, solicitors and barristers are subject to a number of obligations under statute, common law, and equity. The most important of these, is that legal professionals have obligations to only act in the best interests of their client. \u00a0If these obligations are breached, there are systems in place where you can complain, and that lawyer can be disciplined by its regulatory body. Within the profession, these obligations are taken very seriously, both by practitioners and regulators alike. \u00a0Non-lawyer paid agents are not subject to the same obligations. Some of them are talented and ethical professionals, some of them are not. But you won\u2019t know until afterwards, and there is no regulatory body to assist you if it goes wrong.<\/span><\/strong><\/li>\n
  7. Consider representing yourself.
    \n<\/b>The unfair dismissal jurisdiction is set up for self-represented litigants. \u00a0The tribunal members are extremely patient and helpful with self-represented parties, and much less patient with paid agents. \u00a0Permission is needed for legal representation at the Commission. If you are a self-represented, then often your employer may not get permission to be represented by a lawyer. \u00a0Even if they do get permission, the Commissioner will make sure that the hearing is conducted as fairly and informally as possible. An agent may have some tricks up their sleeve to achieve a slightly better outcome for you, but it is often not likely to be commercially viable once his or her fees are paid. \u00a0Very often, you may be better to go it alone. <\/span><\/li>\n<\/ol>\n

    There is no such thing as a free ride when it comes to employment litigation. \u00a0With the pool of compensation already low, in a time of life where every penny counts, consider your options carefully before signing away your case on a \u2018no win no fee\u2019 promise.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

    With the growing proliferation of \u2018no win no fee\u2019 and contingency based employment litigation agents, it\u2019s easy to presume that this as a positive move for \u2018access to justice\u2019 for employees. \u00a0But sadly, an undercurrent within this trend is having the opposite effect.<\/p>\n","protected":false},"author":1,"featured_media":935,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[14,156,158,157],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/934"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=934"}],"version-history":[{"count":2,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/934\/revisions"}],"predecessor-version":[{"id":938,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/934\/revisions\/938"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/935"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=934"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=934"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=934"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}