A short message from one of our employment lawyers, Philip Heaven.
Employment law can be baffling. It’s almost like walking into a maze and soon becoming lost and confused.
If you phone, email or Skype, or can find your way to Glen Waverley in the eastern suburbs of Melbourne, you will find accredited business law specialists and expert employment lawyers to lend you a helping hand.
To provide practical solutions and sound legal advice on any employment or workplace issues, your solicitors will be David Sharrock, Mitchell Zadow, Philip Heaven, or Rachel Dickson.
In the meantime, here’s some useful information to find your way through the employment law maze:
- Unfair dismissal is the most common action which can be taken by an employee if their employment has been ended harshly, unjustly and unreasonably. The employee has 21 days to apply to the Fair Work Commission for compensation or reinstatement. The employer has 7 days to respond after being served with the application.
- A small business employer (under 15 employees and whether full-time, part-time or casual) might better resist a claim for unfair dismissal if they have followed the Small Business Fair Dismissal Code
- A constructive dismissal can lead to an unfair dismissal claim even though the employee has resigned and not actually been dismissed. This happens when the employee is given little or no alternative but to resign. Effectively, the employer has contrived a situation which becomes intolerable or unacceptable to the employee. A resignation in such circumstances can be deemed an unfair dismissal.
- An unfair dismissal claim can still be made in a genuine case of redundancy if the process is poorly handled. The exit process for redundancy must be carefully undertaken to ensure procedural fairness in selecting an employee for redundancy, considering whether there are suitable alternative positions, offering outplacement support, and the like.
- Summary dismissal happens without any notice or payment in lieu of notice when the employee has been involved in serious misconduct in the workplace such that it is unreasonable for employment to continue (for example: theft, assault, violence or threat of violence, refusal to follow proper instructions, conduct endangering others or harming the employer’s reputation, intoxication at work and other serious matters). In such circumstances, the process of dismissal must be handled carefully in order to oppose any unfair dismissal claim.
- If employment is to end because of a genuine redundancy, meaning an employee’s position is no longer needed to be filled by anyone else, a redundancy payment might then be made in certain circumstances. Click here for more information. A calculator is here. However, payment for redundancy is not always necessary ie with most ‘small business’ employers (under 15 employees), if employment has been for less than 12 months, or if employment is casual.
- In instances of bullying which results in dismissal from employment or in a forced resignation, the employee, whether bully or victim, may well have a claim against the employer for unfair dismissal or for adverse action.
- In instances of discrimination which results in dismissal from employment or in a forced resignation, the employee, whether victim or perpetrator, may well have a claim against the employer for unfair dismissal or adverse action or a claim under equal opportunity laws.
- Sharrock Pitman Legal will work hard for you with all your employment or workplace issues to deliver the result you need.
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The regulatory regime for workplaces in Australia primarily comprises:
Fair Work Australia:
Equal Opportunity and Discrimination:
OH & S:
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When engaging workers, there are various possibilities:
- Modern awards cover most industries and occupations and provide minimum wages and conditions. These awards can be found on the Fair Work Commission website.
- Enterprise agreements or other registered workplace agreements might apply in a particular workplace instead of a modern award. For more information, visit this page.
- Employment contracts or letters of employment are individually drawn for senior employees or for those whose wages and conditions are more rewarding than the minimum. You can find more information here.
- There are 10 National Employment Standards which are compulsory, minimum standards of benefit to all employees. They can be found on this page on the FairWork Australia site. A copy must be provided to employees at the commencement of their employment.
- Casual employees are best to have casual employment contracts or casual letters of employment to provide proof that the arrangement is and remains legally casual. More detailed information about casual employees can be found here.
- Independent contractors must be engaged on a written contract basis and be a genuine, legally compliant contract for services. The consequences of sham arrangements in order to avoid employee entitlements are horrendous! To help you decide whether an individual is an employee or a contractor, here’s a fact sheet.
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- Every workplace should have a comprehensive set of policies detailing employer obligations and employee rights. As solicitors, we believe in proactive help for employers so they might avoid legal problems from happening. As solicitors, we draft policy documents that are customised to your needs and your industry so as to improve workplaces all round and to protect against claims.
- Policies might usefully cover complaints, discipline, social media, emails, website access, phone calls, harassment, bullying, workplace discrimination, leave, occupational health and safety, unique risk management issues, emergency procedures, and termination of employment.
- An anti-bullying policy is essential for any workplace. An employee (or contractor) is bullied when someone acts unreasonably toward them on repeated occasions and such behaviour puts their health and safety at risk. Click here for more information about bullying.
- Employees must not be dismissed from their employment harshly, unjustly or unreasonably. A specific policy should be in place to ensure that the processes for discipline of employees, performance management and dismissal from employment are fair and transparent.
- Similarly, the circumstances of and process for making an employee redundant should also be set out in a policy. It is essential that the position in the workplace be no longer required for commercial reason rather than the particular employee being fired. The whole redundancy process must be genuine and be conducted objectively, fairly and reasonably, failing which an employee could contend they had been unfairly dismissed.
- In the workplace, employees have a right to work without unwelcome sexual behaviour (whether physical, verbal or written) such as could be expected to make them feel offended, humiliated or intimidated. Detail can be found here. A written policy is essential, as employers are under a positive duty to eliminate such behaviour proactively rather than to just respond to complaints. In failing to have a policy or to enforce a policy or to mishandle a complaint, employers can be made liable alongside the actual perpetrator of the sexual harassment. Compensation is increasing.
- Similarly, an employee cannot be victimised in a workplace. That is, no-one can punish or threaten to punish an employee for merely exercising their legal rights or taking action about their work or workplace. A policy is essential. You can find more information here.
- Fundamentally, all employees (and contractors) have certain ‘protected attributes’ and employers (and head contractors) must not take any ‘adverse action’ against employees (and contractors) which cause detriment in respect to such attributes.
All employees (and contractors) are protected:
- when exercising a workplace right (for example: seeking an entitlement, or making an enquiry or instigating a complaint)
- when involved with a union or participating in industrial activities
- when discriminated against unlawfully (for example: on the basis of race, disability, religion, pregnancy, age and the like) or
- when negotiating individual arrangements.
With these protected rights, employers (or head contractors) must not:
- take adverse action (for example: by dismissing an employee, ending a contract for services or discriminating)
- coerce someone not to exercise a workplace right, for example
- make any false or misleading representation about the employee or contractor’s workplace rights, for example, or
- exert any undue influence or pressure on an employee to change their conditions of employment or job description to their detriment.
More information about general protections and adverse action.
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- Whether between employer/employee or between employee/employee, the best means of resolving any workplace dispute is by mediation. As solicitors, we can readily take matters to a Commission, Court or Tribunal. However, to save legal costs and to avoid the uncertainty of any contested hearing, the better way is mediation. This requires a skilled and qualified mediator to facilitate discussions, with the disputing parties to devise their own solutions. We have a nationally accredited mediator on our team who can assist with mediation and help avoid the expense, trouble and uncertainty of contested legal proceedings.
- In a broader sense, industrial action can involve strikes, work bans, productivity interference or a lockout. Such action will be either protected or unprotected. Protected industrial action can happen during the course of enterprise bargaining and is advisable to avoid adverse legal consequences such as damages claims and the like.
- If an employee’s protected rights are being infringed by an employer during the course of their employment but their employment is ongoing, then complaint can be made to the Fair Work Ombudsman or an application for adverse action can be made to the Fair Work Commission seeking compensation and/or orders.
- In instances of bullying, the legal consequences can be severe for the bully and the employer. There may be actions for breach of health and safety laws, Work Cover laws, the Fair Work law, as well as proceedings for breach of a duty of care in negligence or for breach of the contract of employment. If the bullying amounts to a crime, a police prosecution may result. Complaints about bullying can be made to the authorities and damages sought.
- In cases of sexual harassment or discrimination, the legal consequences can also be severe for the perpetrator and the employer. Complaints can be made to the Fair Work Commission for compensation and orders about future conduct if there has been adverse action. Alternatively, complaint can be made to the Victorian Equal Opportunity and Human Rights Commission which will convene a Conciliation and then, if the complaint is not resolved, it can be determined by the Victorian Civil and Administrative Tribunal.
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When it comes to employment law, we are:
On Your Side
Here is what some of our very satisfied clients with employment and workplace issues have said:
“Given the difficult situation, my lawyer was empathetic, thorough and prompt which helped me immensely. Thanks!”
“Very happy with advice and options given and no pressure. I decided how much work needed to be done. My lawyer was excellent support. My final outcome was exactly what I wanted.”
“Prompt service and feeling cared for.”
“Just a comment on how impressed I was with the outstanding service I received when my lawyer assisted me with my employment law issue. My lawyer helped me immediately and I cannot comment enough on the professionalism demonstrated.”
Can we help with your employment law issues?
More about Workplace Issues from our Reading Room
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Has it come time for you to terminate someone’s employment? Do so with great care otherwise you could be exposing yourself to a costly and time consuming unfair dismissal claim. Terminating for serious misconduct Serious misconduct by an employee is conduct that is considered to be serious enough to justify ...
26 May 2017
Sometimes referred to as “adverse action”, General Protections are provisions in the Fair Work Act 2009 (Cth) which protect employees (including prospective employees and in some instances independent contractors) from having adverse action taken against them for the exercise, or threatened exercise, of a Protected Attribute. A Protected Attribute can ...