Unfair Dismissal

You may have been unfairly dismissed if you have been dismissed from your job in a manner that was:

  • Harsh;
  • Unjust; or
  • Unreasonable

If you are an employee who was covered by the national workplace relations system you may be able to make an unfair dismissal claim if you have been terminated by your employer, or you have been forced to resign from your position by your employer.

In order to be eligible to claim for unfair dismissal you must have engaged for the relevant minimum employment period, and meet one of the following criteria:

  • Be covered by an award; or
  • Be covered by a registered agreement; or
  • Have an annual wage which is less than the high-income threshold

As of 1 July 2019 the high-income threshold is $148,700.

 

Redundancy

A worker may be made redundant when an employer decides either that:

  • An employee’s job is no longer required to be done by anyone; or
  • An employee’s job is terminated because their employer becomes either insolvent or bankrupt.

Redundancies may occur for many reasons including a business restructuring, relocating, closing down, poor business performance or as a result of the introduction of new technologies. A genuine redundancy may occur when a person’s job is no longer needed and the employer has followed the appropriate consultation requirements.

A redundancy may not be genuine if a person’s job is still required to be done by someone, an employer has not followed the relevant requirements to consult with the employees about the redundancy or the employer could have reasonably given the employee another job.

 

Bullying and Harassment

Bullying and harassment may occur in the workplace if an individual or group of individuals act unreasonably towards a worker or a particular group of workers, or alternatively if the behaviour of an individual or group of individuals creates a risk to health and safety.

Behaviour that is unreasonable will depend on the circumstances but may include threats, intimidation, victimisation, or humiliation.

Examples of bullying and harassment may include:

    • Aggressive behaviour;
    • Jokes and/or teasing;
    • Excluding an individual or group;
    • Peer pressure; and/or
    • Unreasonable work demands.

 

Employment Contracts

An employment contact is a contract which sets out the terms and conditions of employment and are between an employer and an employee.

Although employment agreements can be verbal, they are often in writing and you should always retain a copy of any agreements that you enter in to for your records.

It is important to note that it is not legal for an employment contract to provide a worker less than the minimum entitlements set out in either the National Employment Standards, or the relevant award, enterprise agreement or registered agreement which applies to your employment.

Adero Law can provide advice relating to the minimum legal requirements for an employment contract as well as advice relating to any terms and conditions that may be including in your contract.

 

Discrimination

Unlawful workplace discrimination occurs when adverse action is taken against an employee or potential employee by an employer as a result of a protected attribute. There attributes may include:

  • Race;
  • Colour;
  • Gender;
  • Sexual orientation;
  • Age;
  • A disability;
  • Marital status;
  • Carer or family responsibilities;
  • Pregnancy;
  • Religion;
  • Political opinion; and
  • Nationality or social origin.

Adverse action that might be taken by an employer against an employee as a result of a protected attribute may include doing, threatening, or organising:

    • For an employee to be dismissed;
    • Detrimentally altering an employee’s position;
    • Discriminating between one and other employees;
    • Refusing employment for a prospective employee; or
    • Discriminating in the terms and conditions in an offer of employment to a potential employee.

 

‘Wage theft’ and Underpayment

The term ‘wage theft’ refers to the practice of employers underpaying workers. This occurs when a worker receives less than they are entitled to under a relevant award, enterprise agreement or registered agreement which applies to their employment.

‘Wage theft’ may include underpayment of wages, penalty rates, superannuation, overtime, commissions, or entitlements such as carers, sick and annual leave. In some circumstances it may also include an employer either forcing an employee to repay money that has been earned after it has been paid or alternatively, by making unauthorised deductions from the worker’s pay.

 

Sham Contracting

Sham Contracting may occur when a worker is engaged by an employer as an independent contractor when they are in fact an employee.

Some employers will attempt to engage employees incorrectly as independent contractors in order to avoid obligations relating to employee entitlements. When this occurs, it is known as “sham contracting”.

Sometime misclassification can occur by mistake resulting in an employer not providing the employee with their minimum entitlements and other employer obligations.

An employer also much not:

    • misrepresent that an actual or proposed employment relationship is in fact an independent contracting arrangement;
    • dismiss or threaten to dismiss an employee in order to engage them to perform the same or substantially same work as an independent contractor; and
    • knowingly make a false statement in an attempt to either persuade or influence an employee to become an independent contractor.

 

 

High Income Employees

According to the Fair Work Act 2009 (Cth) (FWA) a high-income employee is someone whose employment salary on a pro-rata basis is equal to or above the high-income threshold (as of 1 July 2019 the high-income threshold is $148,700) inclusive of non-monetary benefits such as a company car or a work phone, but not including superannuation or bonuses.

Claims for unfair dismissal in the FWA unfortunately preclude high income earners from protection. However, unlike unfair dismissal provisions a high-income earner may be able to bring a claim for general protections under the FWA or a claim for wrongful termination.

Instead of an unfair dismissal claim which alleges that a person was dismissed harshly, unjustly or unreasonably, a general protections application requires an employee to show that they have had adverse action taken against them due to:

  • Their workplace rights;
  • Temporary absence for injury or illness; or
  • Discrimination against them.

A high-income earner may also be able to bring a claim in the Victorian Equal Opportunity and Human Rights Commission. Alternatively, a high income earner may have a claim for breach of contract.

 

Performance Management

Workplaces should establish effective performance management systems to manage underperformance. Underperformance in the workplace may include:

  • Unsatisfactory work performance;
  • Non-compliance with policies, rules and procedures;
  • Unacceptable behaviour; or
  • Disruptive or negative behaviour.

When reasonable management action is taken in the workplace in will not constitute bullying as long as it is carried out in a reasonable manner. However, if a staff members performance is managed in a manner which is not reasonable, it could amount to bullying.