Employment law

Unfair dismissal

A dismissal can be unfair when an employer sacks or fires an employee without a valid reason, or without providing the employee with sufficient warning about performance issues and the chance to rectify those issues. While an employer is generally able to dismiss an employee for serious misconduct without warning, for less serious performance issues, an employer should provide the employee with:

warnings
the chance to rectify performance issues
a chance to respond to any allegations of misconduct or poor work performance.

There are other factors that can determine whether a dismissal is unfair or not.

To be eligible to apply for unfair dismissal, you must:

have been dismissed, or left with no choice but to resign
be covered by the National Employment System
earn less than the high income threshold ($129 000 as at. )
be a permanent employee or casual but with regular and systematic hours
have been employed for six months (where your employer has more than 15 staff) or one year ( for small businesses)

You must apply to the Fair Work Commission within 21 days from the date your dismissal took effect. This will usually be the last day you work, but in some cases it could be the day you were informed you were being dismissed (for example if you were on leave when you were dismissed).

If you think you have been unfairly dismissed, contact us to see how we can help you.

Adverse action and general protections

The Fair Work Act includes a number of protections that employees have in the workplace, called general protections. These include rights:

against discrimination
to take leave for illness or injury
to make a workplace complaint
to be involved in union activities
to flexible working arrangements (for some employees)
to inquire about a workplace right.

If you are dismissed or your employer ‘injures’ you in the workplace (for example, demotes you) because of one of these reasons, this is called adverse action, and under the Fair Work Act an employer cannot take adverse action against you in relation to any of the general protections.

If you think you have been dismissed in breach of a general protection, contact us to see how we can help you.

Bullying

If you are being bullied at work, you can apply to the Fair Work Commission. The Fair Work Commission must deal with the application within 14 days and can make orders aimed at stopping the bullying. The Fair Work Commission cannot make orders that you be paid compensation for the bullying, but any contravention of orders made can result in a penalty being imposed.

If you are being bullied at work, contact us to see how we can help you.

Wages and other entitlements

Awards, enterprise agreements, employment contracts and legislation dictate what pay and other entitlements an employee should receive from their employer. If you are being underpaid, or not being paid all your entitlements, you can complain to the Fair Work Ombudsman and/or make a claim against your employer.

Other than your wages, some things you may be entitled to include:

annual leave
long service leave
sick leave and carer’s leave
notice, or payment in lieu of notice, if you are dismissed
redundancy
parental leave.

You have six years from the day they were payable to you to claim unpaid wages or entitlements.

If you are not sure what you are entitled to, or if you think you are being underpaid, contact us to see how we can help you.

Other disputes

For many other issues, you may be able to make an application to the Fair Work Commission to deal with a dispute with your employer. Contact us to see how we can help you.

Where to find more information

If you want more information about your entitlements or want to make a complaint about underpayment, contact the Fair Work Ombudsman.

If you want to make an application for unfair dismissal, a general protections dismissal or dispute, or in relation to bullying, contact the Fair Work Commission.

For information, referrals and in some cases free legal advice, contact LawAccess.