Employment Lawyers Working For You
At Next Legal & Conveyancing, our experienced employment lawyers can assist both employees and employers with a range of employment law matters.
If you are an employee, you have 21 days from the date of termination to commence general protection or unfair dismissal proceedings and so it is important to seek our advice as soon as possible. It’s important to speak with our employment lawyers as soon as possible.
Our areas of expertise include:
- Unfair Dismissal
- General Protection (Adverse action)
- Workplace Bullying
- Other employment matters.
Section 385 of the Fair Work Act provides that someone has been unfairly dismissed if the dismissal was:
- Harsh, unjust or unreasonable
- Was not consistent with the Small Business Dismissal Code (for small businesses) or
- Was not a case of genuine redundancy.
When is an Employee protected from Unfair Dismissal?
- They have completed the minimum period of employment being 6 months –
- They earn less than the high-income threshold which is currently $148,700 per annum – or
- A modern award covers your employment – or
- An enterprise agreement applies to their employment.
It is not an unfair dismissal if it was:
- A genuine redundancy; or
- Consistent with the Small Business Fair Dismissal Code (for Small businesses)
Remedies include reinstatement or compensation.
The General Protection provisions are set out in Part 3-1 of the Fair Work Act 2009 (Cth) (“Fair Work Act”). Under the Fair Work Act, employers are prohibited from taking adverse action against an employee because the employee exercises a workplace right or takes industrial action.
The Fair Work Act protects against discriminatory treatment on the basis of protected attributes and sham arrangements.
What is Adverse Action?
Some common examples of adverse actions include dismissing an employee, prejudicing an employee, injuring an employee, altering the position of an employee or discriminating against an employee.
The adverse action must be because of a “prohibited reason” and the causal link behind the adverse action and the reason or basis for the adverse action is paramount. Unless the adverse action was for a “prohibited” reason there will be no breach of the general protections provisions.
Example: An employee inquires with his or her employer regarding the reduction in their hours which is inconsistent with their employment contract (exercising a workplace right to receive and be paid for the contracted number of hours). The Employer decides to dismiss the employee (adverse action) because they have inquired about reducing their hours.
Example: Female employee has mentioned to staff that she and her partner have been trying to fall pregnant. The Employer reduces the employee’s hours from full-time hours to 20 hours a week (adverse action) in response to her intention to start a family and potentially take maternity leave (workplace right to take maternity leave).
If an employee can successfully establish their case that an employer has breached the general protections provision, the employee may be entitled to remedies in the Fair Work Commission (FWC) or the Federal Circuit Court (FCC). Remedies include reinstatement, orders to address continuity of employment or lost remuneration or compensation. Compensation can include non-economic loss such as hurt, humiliation and distress where there is a causal connection between the contravention and the loss.
The team at Next Legal & Conveyancing can guide you through defending or making a claim. Our experienced employment solicitors can assist you through the legal process to ensure you obtain the best possible outcome.
Bullying & Harassment
Section 789FD(1) of the Fair Work Act provides the definition of workplace bullying which includes when:
- An individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers at work -and
- The behaviour creates a risk to health and safety
Reasonable management conducted in a reasonable manner does not constitute bullying or harassment
If you are still employed, we can assist you by advising you in respect of the most appropriate strategies to re-create a safe and healthy work environment for you.
Let us help you by:
- Taking instructions and advising you on the prospects of success of making or defending a claim
- Negotiating on your behalf to reach settlement to a change in workplace conditions
- Drafting and filing your application or response
- Corresponding with the Fair Work Commission, Court or parties and their legal representatives as required – and
- Representing you at conciliation, at court mentions or at hearings.
Did you know?
- You can only change the terms of an employment contract if you have reserved the right to do so or have the other parties agreement or consent. Any changes must be agreed by both parties.
- Employees may have minimum entitlements under the modern award.
- Foreign corporations conducting business in Australia must be registered.
- An employment contract exists once a potential employee accepts an unconditional offer of employment, which may be before their employment starts.
- You can make a job offer subject to successful completion of a probationary period. A probation period of three to six months is common.
Ready to speak to our expert employment lawyers? Contact us to set up an appointment and get the process started. From our Newcastle base, we act for local clients, as well as those in the Greater Hunter Region and throughout New South Wales and Queensland, and across the globe.