If there’s an area of law that has kept lawyers busy during the pandemic, it’s employment and litigation.

This month we meet Tom – an employment and commercial litigation specialist who set up his firm in 2018.

1. What are you best at i.e. your sweet spot?

I’m great at helping my clients deal with badly behaving employees. Raising performance issues, disciplining employees and terminating employment contracts can present a minefield of risk, and most of it is avoidable if the right steps are taken at the right time.

2. With all the COVID-19 changes on the employment front, what’s tripping up businesses the most?

A lot of businesses have stood their employees down without pay, citing the impact of COVID on the business as the reason. Most of these businesses do not have a legal right to do this. Others have unilaterally imposed pay reductions on staff which is obviously not lawful (though many more have done the right thing and sought consent to those arrangements before implementing them).

3. Any upcoming issues or key dates employers need to be on the lookout for?

The obvious one is the expiry of the current JobKeeper extension - 28 March 2021. It remains to be seen whether any further extension will be provided and if so, on what terms.

Once JobKeeper expires, I’m expecting a slew of redundancies.  

It isn’t pleasant to think about, but I expect that the downstream effect of this, combined with the expiry of some of the debtor protections that have been implemented during COVID (protections against evictions, longer default periods for bankruptcy notices, statutory demands) could be pretty drastic - evictions, bankruptcies, foreclosures, unemployment etc.

4. What about disputes generally – are litigants holding off or are cases coming back to life?

I haven’t felt any pinch yet - on the contrary the last few months have been the busiest since I opened the doors to my firm. That said, I suspect the economy is being artificially propped up by the various COVID relief measures that are in place at the moment, and that if a recession truly hits, my litigation practice might slow down. Litigation costs can be justified when you’ve got the cash, but not so much when you’re struggling to pay the power bills.

5. Are there any particular types of cases/issues looking like coming to the fore in 2020 and beyond?

The last 12 months have been really active as far as the development of employment law is concerned. There are all the COVID issues that I’ve talked about in brief above, but additionally there has been a great deal of meddling and movement in and around the application and enforcement of Awards (in particular, limiting the ability of certain businesses including law firms to pay certain employees ‘all inclusive’ salaries). 

There have been various changes/developments in the law that have made it more difficult/risky to engage a casual workforce. All of this is fresh and is going to result in litigation once it works its way through the courts or the Fair Work Commission.

The ever-increasing complexity of regulation of the employment relationship is a nightmare for my small business clients.  The likes of Commonwealth Bank and Qantas can afford in-house counsel and HR specialists to get everything right, but a family business with four employees has no chance.  Advising on this stuff is good for my practice but in my humble opinion it is an unfair burden on small business.

6. Just coming back to you – why did you set up your own firm?

I suppose it just felt like the right time. I was sufficiently confident in my skills, and sufficiently tired of working for other people.

7. What’s been a highlight (and one challenge) since setting up for yourself?

The big highlight is the morale boost that I’ve gotten from working for myself. I always knew academically that it would be more satisfying to be working on my own terms and for my own direct benefit rather than someone else’s, but the extent to which it has made a difference to how I feel about work is genuinely surprising. Put simply I could never go back to an employed role.

The challenge is the lack of resources relative to a larger firm, though to be honest this is more manageable now than it was when I first opened the doors. I’ve got an employed solicitor now, as well as a good network of contractors who can help out when necessary, so the flexibility that one gets from a larger workforce is slowly developing.

8. Do you have any tips for lawyers considering a similar career pivot to running their own firm? 

A lot of people seem to think that going out on your own is a big risk. It really isn’t. 

Huge upside if it works, minimal downside if it doesn’t (you can always go back into an employed role). If you feel like you aren’t really loving practice and you’re experienced enough to work without supervision, there is no reason at all not to give it a crack.

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Tom is available now to assist you on employment and commercial litigation matters – feel free to get in touch with us .