Employment Law/Unfair Dismissal FAQs
Author(s):LAC Lawyers
Publish Date: April 23, 2008
Welcome to the LAC Lawyers Employment Law Frequently Asked Questions page. We have put together some questions that we are asked by potential clients about issues relating to Employment Law and Unfair Dismissal. For ease of reference the FAQs have been split into two sections, feel free to browse as you wish through the following sections:
- FAQs whilst Employed
- FAQs relating to isses of Dismissal, Discrimination and Post-Employment
For Further information on our Employment Law and Unfair Dismissal please visit our Employment Law & Unfair Dismissal services page
Frequently Asked Questions relating to issues whilst Employed
Q. Can I bring an unlawful discrimination claim as I have family responsibilities and my employer for whom I have worked for the last six years will not adjust my working hours to accommodate some of my needs allowing me to properly care for my children?
A. There have been a growing body of cases in this area which support the view that employers should try to accommodate the needs of both male and female carers and a failure to do so may lead to a claim for compensation.
Q. I currently work for a large retail chain and have been suspended from work pending a full investigation for dishonesty. Can you help?
A. Obviously you are in serious trouble and need independent legal advice. Suffice to say where this occurs an employee is entitled to a proper and complete investigation of the circumstances of the matter involving them. If this is not done then they can fall back on the law to protect them either for a breach of procedural fairness or a breach of their contract of employment amongst others.
Q. During the course of my employment I took a substantial amount of money from the company which has now been discovered and they have called me in for interview saying that all they really want to know what happened and they will not lay any criminal charges. What should I do?
A. The matter is a serious one and you need to invest in proper legal advice and representation. The employer has a number of options as they would want to solve the problem. They want to know how you manipulated their system to obtain money or credit so they can avoid it happening again. Once they have finalised their investigations they will call the police but before this occurs they will terminate your services and attempt to have you pay back all or some of the money. If you are prosecuted you can except to receive a custodial sentence.
Q. One of the senior partners of the practice for whom I work is sending me obscene emails. What should I do?
A. Most professional practices have some form of email policy which would circumscribe this type of behaviour. Even if they don’t then these unwanted emails would certainly amount to sexual harassment for which you can take action. If you have already approached the person concerned and they have failed to respond then report it to the appropriate person in the practice and if this doesn’t get a result then retain a legal practitioner and seek compensation.
Q. Approximately two years ago I joined a car dealership which is rather old-fashioned in the manner in which it transacts business between the finance and sales departments. An insurance provider suggested to the management that I was not doing my job properly and as a result I have been reprimanded being held responsible for the poor performance of my area which is ludicrous as the sales for this year in my area are the same as last year when the market was booming. What should I do?
A. As both departments have not been integrated it is hard to see how you could be blamed for this situation, particularly as the downturn was in new car sales and not insurance products which are performing in line with the previous year. It seems that your department must be more effective this year than last as you must be converting more deals this year to maintain last year’s figures. Irrespective you need someone to intercede on your behalf with your employer to cogently put your point of view and if they are unaccepting of this and your services terminated then you should proceed against them for unfair dismissal and look at what reasonable prospects you may have of proceeding against the insurer for defamation.
Q. I have been with the company as a permanent-casual in excess of 10 years and am wondering whether or not I can make an application to become a permanent employee?
A. Yes. Any employed person who has been working continuously and systematically for an employer for either 6 or 12 months is a deemed permanent employee and all that has to be done is to make application to the employer to convert your status. If anything negative transpires approach a lawyer to enforce your rights.
Q. Following the introduction of Workchoices earlier this year although I work for a company having less than 100 employees do I still have any remedies left?
A. Yes. You are entitled to bring an action against your employer where there has either been a breach of an express or implied term of your contract of employment.
Q. Although the company for whom I am working is not meeting budget the area in which I work has exceeded budget but I am being put under increasing pressure to improve output?
A. All employers have managerial prerogative but where this is unreasonably exceeded and this has been raised with them, this can constitute a breach of your contract of employment. The particular circumstances which apply are extremely important in assessing the extent to which an employee has an available remedy.
Q. My boss came to me and asked me to admit someone to our computer network without the property authorisation. I refused to comply and ever since I have been singled out by him and serially abused, ignored and made to feel unwelcome. Is there anything I can do?
A. Yes. It appears that you are being harassed and bullied and as a result you can seek redress from your employer.
Q. I have been working with the same company for in excess of 10 years and recently a new manager was appointed to my department. He has been riding everyone but particularly myself as it appears he wishes to make changes and bring in his own supporters. I am under stress and my health has deteriorated as a result. What should I do?
A. If you are under-performing then you should address the performance issues as quickly as possible otherwise the manager may terminate your services for any of a number of reasons including poor performance or operational considerations. If it be that you are being ridden and performance-managed in an endeavour to either get you to resign or be terminated then there are a range of things you can do. They include everything from unfair dismissal to suing for breach of contract, including breach of implied terms, which are extremely important in this context. Bullying and harassment should not be forgotten and if there is any hint of some form of actionable discrimination then this should be pursued also.
Q. I am currently working for a very intense person who is overbearing and difficult who constantly threatens and swears at everyone yelling at them and standing over them unfairly pushing them to do as much work as possible. What should I do in the circumstances?
A. Given the type of work environment it is obvious you have a right to proceed against your employer for bullying and harassment. Not only are you able to do this under the general law but if it is having an impact on you there may be issues associated with the Occupational Health and Safety Act as well.
Q. I work for a government department and believe they are trying to get rid of me saying that my size interferes with my ability to carry out my work. I feel uncomfortable, as I believe I am being set up and the union is also involved. What can I do in these circumstances?
A. As you know with all government departments there are fixed procedures which need to be followed and if they are not issues such as the lack of procedural fairness will arise. In all of these cases it is important to find out what your employer is planning and should they invite you to attend a meeting to discuss your future then make a request of them that you be allowed to bring a support person with you, preferably your solicitor. Normally this would be agreed to and it is a far better way to proceed as your employer will have at least two people in the room when you are interviewed. Government departments normally follow a very lengthy process before an employee’s services are terminated.
Q. I am having a number of issues with my boss at work due to his behaviour as he frequently swears, writes threatening emails, bullies, sets unreasonable deadlines and is trying to performance-manage me out of the operation. What can I do?
A. Obviously if you have been with your employer for some years and provided your earlier performance is in contra-distinction to what he is now saying then you would have a number of legal remedies available to you. It is essential in cases like this to make sure that you do everything possible to acquit at work to avoid criticism. Remember you can retain a solicitor to intercede with your employer and if this does not work then pursue your legal remedies.
Q. This year I went to an office function and become a little untidy. Whilst I was taking photographs a girl lent over in front of me and I took a shot of her cleavage. After sobering up I suddenly realised there could be issues and I discovered that one of the persons to whom I had sent all the photographs including the one of the girl, had circulated this to everybody in the office. What should I do?
A. The first thing is to go and apologise to the girl and make sure there is no ill will between you. Next you should explain to your employer what your circumstances are and apologise to them for any inconvenience or problems that might result. Provided this works there should be no complaints of sexual harassment and the matter should die a natural death. If the matter escalates then you may be in trouble for serious and wilful misconduct and your services terminated.
Frequently Asked Questions relating to issues of Dismissal, Discrimination and Post-Employment
Q. I am currently off on workers’ compensation and have been dismissed. Am I entitled to bring an Unfair Dismissal claim?
A. In these circumstances you may be entitled to bring an unfair termination claim or a disability discrimination claim. Independent legal advice needs to be obtained because there are a number of multi-jurisdictional issues which have to be considered which are tied up with awards, workplace agreements, certified agreements and contracts of employment to name but a few.
Q. I have recently been made redundant by my employer and my job has been split up between a number of persons the principal parts of it being given to a much junior employee. Is there anything I can do?
A. Where the job no longer exists and it has been split up amongst the individuals as indicated it appears to be a genuine redundancy.
Q. I have been asked to resign by the company for which I work. Can they do so without giving me a warning?
A. It depends upon the circumstances but if it were for serious and wilful misconduct the answer is Yes.
Q. I have recently left my current employer and he has retained my bonus. Can he do this?
A. A bonus may be of a discretionary or non-discretionary nature. He is normally governed by your contract of employment. It may depend on reaching certain KPIs and other requirements. Obviously where a bonus is denied on insufficient grounds you should seek legal advice.
Q. I recently left my employer and they have not paid my outstanding entitlements including holidays. When I investigated the matter I found that there was also some outstanding superannuation. Can you help me?
A. Yes. You have a number of statutory entitlements which include holiday pay which is specifically protected by statute. The same applies to superannuation and where your employer fails to pay it then he can be held accountable at law. In your circumstances retain a legal representative to ensure that you obtain the monies owing to you.
Q. I have been working for a company for a number of years and have not taken any holidays until recently. Whilst I was off the managing director attempted to contact me. Upon my return to work he terminated my services for being uncontactable whilst away. Can he do this and are you able to assist?
A. Yes. Sometimes it may be essential for your employer to contact you whilst you are on leave but this does not appear to be the case in these circumstances. For your employer to have dismissed you for serious and wilful misconduct by not making yourself available whilst on annual leave is both unfair and unreasonable. Obviously there are a number of remedies available to you and we are more than willing to assist you by either having yourself reinstated or obtaining compensation and/or damages.
Q. My services were recently dispensed with allegedly due to the downturn in business which I do not believe as the number of orders received show it has increased and new staff have been put on. What I have noticed is that I am the oldest member of staff and everybody else who is being hired is in their 20s and of a particular ethnic background. Can you help me?
A. Yes. It appears to be a case of both age and racial discrimination given that everybody else employed by them are in their 20s and of a particular ethnic background.
Q. Recently I was retrenched and given one month’s pay in lieu of notice together with my current month’s salary. Unfortunately I was not paid for my annual leave or my current bonus which it vested and my unvested bonus which is now due and payable. What should I do?
A. You are entitled to take action to recover these outstanding monies, the only issue may be in regard to the current bonus which was not vested at the time your services were terminated.
Q. Yesterday I called my employer and told him I would not be into work as I was sick and had a medical certificate. When I went to work today my services were terminated. Is there anything you can do for me?
A. Yes. Obviously it appears to be a case of wrongful termination and you are entitled to approach the Commission with a remedy in these circumstances which may involve either reinstatement or compensation.
Q. I have recently been approached by my former employer’s solicitor to reconfirm the restraint of trade clause which I signed whilst I was in their employ. Should I do so and does it prevent me from obtaining employment with another employer in the same or similar industry? What can you do to help me?
A. We would need to review the contract of employment with your former employer to check on the restraint of trade clause. We would then need to see whether it required notice or otherwise where you are contemplating joining another employer in a similar field. Once this is determined the question becomes what was the nature and extent of your role and whether it is sufficiently similar to the work that you were doing previously and whether you are taking with you any important intellectual property of your former employer on which the restraint of trade clause could operate. The validity of restraint of trade clauses depends upon reasonableness and all the factors associated with it need to be considered before you can be property advised.
Q. I approached my employer asking could I take leave without pay and they asked me to resign on the basis that when I returned all I had to do was reapply for my old position and it would be given back to me. I did this and on my return I put in my job application and other applicants were successful and I was refused. Can my employer do this?
A. No, as any employer who does this is contractually bound to fulfil the terms and conditions of the verbal contract entered into with their employee and if they fail to do so it is enforceable.
Q. I was recently fired for serious and wilful misconduct because my employer thought I had taken stock without paying or accounting for it. What should I do?
A. If you have been summarily dismissed and your employer has refused to allow you to explain the situation either thoroughly or at all then you are entitled to take action against him/her either for unfair dismissal if available or breach of contract.
Q. Recently I applied for a job and after the second interview was told by the recruitment agency that I had it. Subsequently I received a telephone call stating that they needed to carry out a criminal record check and I advised them of a minor transgression which had been dealt with by the court not leading to conviction. After this things got out of control and the agency told me that my application was unacceptable to their client and I should look elsewhere for employment. What should I do in the circumstances?
A. Obviously the agency offered you a job which you accepted and they badly handled the matter when explaining this to their client such that the problem is theirs, not yours. In these circumstances you are entitled to take action but the question becomes whether this will prove to be cost effective and will the amount to be obtained either as compensation or damages be sufficient in the circumstances.
Q. I was formerly employed by a company which has gone into liquidation owing me approximately $12,000 in unpaid wages. Is there anything I can do about this?
A. The best thing you can do would be to approach GEERS and see whether you are entitled to some form of compensation from them. Of course they will require proof of your entitlements and the best way to do this is to furnish them with whatever pay slips you currently hold. If you have lost or destroyed these documents then you will need to approach GEERS as to what other forms of proof they will accept to validate your entitlements.
Q. Since the Federal Government introduced Workchoices I am really confused as to whether there are remedies apart from the Workchoices legislation?
A. Most people are aware that provided you are working for a constitutional corporation the landscape for unfair dismissal claims has changed markedly. If you work for a company which has less than 100 employees then unfair dismissal is no longer an option for you whereas where you are working for a company with more than 100 employees then you are entitled to bring an action for unfair dismissal or unlawful termination provided you are a full time employee. In addition claims which can be made include breach of contract, breach of the Trade Practices Act, misrepresentation and anti-discrimination.
Q. I was hired by an accountancy firm and terminated without notice without any reason given for my dismissal. Do I have any right of recourse?
A. Yes. Generally speaking the courts take an extremely poor view of someone being terminated without just cause and where no reason has been supplied. Obviously you need to see a lawyer to make sure your position is fully protected.
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Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email
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