EMPLOYMENT, FAIR WORK & DISCRIMINATION
All employees are protected within the workplace.
An employee has the right to bring a claim for compensation or reinstatement if they have been unfairly dismissed or their employment is terminated unlawfully. Employees may have a claim to recover amounts when they have been underpaid or not properly paid their wages and entitlements.
Federal and state legislation and common law rights operate to protect a worker’s rights to their wage, and all entitlements including annual leave, long service leave and redundancy awards. If an employer fails to pay these entitlements, an employee can bring an action in courts or tribunals to have these entitlements properly paid. SKLegal’s team of experienced employment and industrial relations and workplace lawyers have expertise across the broad spectrum of employment and industrial relations disputes and claims.
Underpayment, Wages, Entitlements and Employment Contracts
Wages, entitlements, salaries and employment payment rights are sourced from a variety of documents, such as employment contracts, industrial awards, enterprise agreements and legislation. Employment entitlements may include wages, casual loadings, penalty rates, annual leave, long service leave and redundancy payments and particular allowances under awards. Awards and minimum wage decisions provide the minimum remuneration for employees.
Contracts of employment, including accepted letters of offer, may also be of considerable importance in assessing or establishing claims an employee may have.
Modern Awards applied to Federal system employees since January 2010. State system employees also have rights under state awards and state industrial legislation. Underpayment claims may date back to prior to a particular award applying, meaning that the potential underpayment claim needs to be assessed across various instruments and at various times. Assessing claims for outstanding employment entitlements and the process of seeking proper payment may require particular understanding, experience and skill. Demands may be made and actions can be taken in court for outstanding employment entitlements.
Successfully ascertaining action to recover these deserved entitlements can be confusing and daunting, which is why we offer a initial consultation, with no cost or obligation, to help you understand your rights and the process for recovering unpaid money and entitlements.
Dismissals and Protections
The Fair Work Commission is a government tribunal that regulates a variety of industrial matters that arise in the workplace. Two of the main types of dismissal applications the Fair Work Commission deals with are unfair dismissal and dismissal where there has been a breach of the general protections.
The Fair Work Commission is a granted a power for ordering reinstatement in a job or compensation for employees who have been dismissed unfairly. The New South Wales Industrial Relations Commissions has somewhat relatable powers and processes.
An employee who cannot make an unfair dismissal claim may be able to make a general protections claim. We can assist in ascertaining rights in termination situations, as well as when there is no termination, but there is still a breach of an employee or prospective employee’s rights and adverse action.
An example of a dismissal that may be a breach of the Fair Work Act 2009 is a dismissal because an employee is temporarily absent from work due to illness or injury for which they provided a medical certificate.
General protections legislation is designed to protect an employee from their employer taking adverse action against them because the employee has exercised a workplace right, including initiating proceedings or making a complaint. Employees are allowed to make legitimate and reasonable enquiries and complaints about their workplace matters without facing adverse action. The legislated ‘General Protections’ are aimed at protecting the legitimate exercise of workplace rights. They are also aimed to protect against an employer taking adverse action against an employee because he or she has engaged in lawful industrial activity, such as belonging to or participating in a union, or because of his or her race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. These workplace protections operate in addition to anti-discrimination laws and exercising a particular right may be assisted with advice of an experienced employment or industrial relations lawyer.
An unfair dismissal claim must be brought within 21 days from the date of termination, unless a valid reason exists for the delay. If the breach of general protections by an employer involves dismissal of the employee, the employee has to apply within 21 days from to make an application for a general protections claim.
Assessing and preparing a claim early avoids timeframe problems. To speak with any of our employment or industrial relations lawyers please contact us.
Unfair Dismissal occurs when an employee is dismissed and the dismissal was harsh, unjust or unreasonable, and the dismissal was not a case of genuine redundancy.
A termination of employment may be a dismissal when an employee was forced to resign and had no real choice but to resign (sometimes referred to as Constructive Dismissal). Certain demotions may also amount to dismissal where there is a significant alteration to conditions and remuneration. We can assist in assessing these considerations in your circumstances.
A genuine redundancy requires a valid reason and will see the employee paid a redundancy amount if they are entitled to be paid redundancy. Redundancy entitlements under the National Employment Standards are available where the termination is at the initiative of the employer. We can assist in assessing if there is a genuine redundancy for the purpose of a dismissal or whether redundancy entitlements should be paid.
A dismissal will be found to be unfair when it is harsh, unjust or unreasonable. The Fair Work Commission considers the following when making such a determination:
• Whether a valid reason for dismissal was given;
• Whether the applicant was given an opportunity to respond;
• Whether the applicant was given prior warnings and the procedures leading to dismissal were fair; and
• The size of the business and the sophistication of their human resources department.
An unfairly dismissed employee may be entitled to be reinstated in their job or to an amount the Fair Work Commission may decide. A person who has been dismissed unfairly can seek reinstatement or compensation up to a maximum of 26 weeks’ pay.
A remedy for unfair dismissal will not be given if the employee has worked for less than six (6) months prior to the termination, or for one (1) year if the business employs less than 15 people. Unfair Dismissal does not usually occur in circumstances where the employee is not permanent and is employed for a specified period of time (a fixed term contract) or for a specified project. In some circumstances, there is a consideration as to whether there is a reasonable expectation that the employment would be ongoing.
If you feel that you have been discriminated against, particularly in your workplace, you may have a claim against the person who has acted in a discriminatory manner or against your employer. That claim could entitle you to compensation, an apology, a change to your working environment and/or many other options.
In some circumstances, persons can suffer an injury due to discrimination towards them. If this has happened to you, you may be entitled to compensation for the injury you have suffered.
If you feel that you have been discriminated against, please contact one of our friendly staff for an obligation-free, preliminary consultation.
Schofield King Lawyers has successfully run many employment claims. We make sure that you are aware of your rights to compensation and entitlements and then fight hard to make sure you are compensated fairly when you have been treated unfairly. We are always happy to provide you with initial advice without cost or obligation, so that you are aware of your rights and the process before any decisions are made.
Please see our News and Publications page for more information on dismissal, underpayment, employment law and industrial relations.
This is information is intended as a general overview guide of the subject matter and it is not intended as advice that should be relied on by the audience. The subject matter of the information may have been updated since posting.
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