Frequently Asked Questions About Employment Law

Unfair dismissal has occurred if your dismissal is found to have been unreasonable harsh or unjust. In order to be covered by unfair dismissal laws, an employee must have worked for the employer for a minimum period of time (one year for a small business and six months for businesses that employ 15 or more employees). An employee must also earn less than $129,300 per year (adjusted each year) and not be working as a contractor in order to be protected. Unfair dismissal applications must be lodged with the Fair Work Commission within 21 days of the dismissal occurring. It is recommended that you seek legal advice as soon as possible if you intend to make a claim.

Redundancy may occur if the operating environment of an enterprise has changed to the point where the employer no longer requires your position to be filled. Genuine redundancies often come about as a result of restructuring operations and other management initiatives. By law, employers must notify affected employees about the redundancy as soon as possible.

Genuine redundancies are often accompanied by a one-off payment that is proportionate to the employee’s length of service. These include:

1. That the business no longer requires the person’s job to be performed by anyone because of changes in operational requirements.
2. The business must consult with any employees who are covered by a modern award or enterprise agreement (as per the relevant consultation provision);
3. It must not have been reasonable in the circumstances for the person to be redeployed with the business or an associated entity.

In some cases, employers may seek to dismiss an employee instead of making them redundant in order to avoid paying redundancy entitlements.

Employers are not able to terminate an employee’s employment without giving them written notice of the date of termination. This notice may be delivered personally or sent to the affected employee’s last known address.

The amount of notice required differs depending on the length of an employee’s service. Generally, the requirements for giving notice are as follows:

For employees with a period of continuous service equalling not more than one year – one week’s notice is required;

• If the period of service is more than one year but less than three years – two weeks’ notice is required;
• More than three years but less than five years of continuous service – three weeks’ notice is required;
• More than five years of continuous service – four weeks’ notice is required.

The above notice requirements do not apply to casual employees or independent contractors/subcontractors. 

An employee is someone that is hired by an employer to perform a role that is set out in an employment contract. Employment contracts theoretically go on forever, unless terminated by either party. An independent contractor or subcontractor on the other hand essentially hires out their services for a certain period of time based on an individually negotiated contract with another business or entity.

Contractors are often able to negotiate their own pay and conditions, however, some laws that apply to employees do not apply to contractors. For example, a contractor may potentially have their employment terminated within a day under the terms of their contract, whereas an employee would be protected by legislation enforcing minimum notice periods etc.

Contractors are also responsible for paying their own taxes and Superannuation. Beware of Sham Contracts or changes in arrangements as to control.

Workplace bullying occurs in workplaces across all industries and professions, and it can have a significant impact on a workplace by reducing the health and safety prospects of those employees.

Bullying usually constitutes repeated, negative behaviour that is directed towards an employee or group of employees. The behaviour is usually targeted, whether directly or indirectly, and this is what makes it so destructive.

There are many laws that protect employees from workplace bullying, and WorkSafe Victoria actively responds to bullying claims in an effort to minimise the damage they may cause to a workplace’s health and safety environment.

Workplace bullying may also constitute discrimination if a victim is being targeted due to the fact that they possess a certain attribute or characteristic, however, the two do not always align.

If you believe that your employer may have breached your employment rights, you should seek legal advice as soon as possible. Our firm specialises in employment law and will be able to provide you with a detailed description of your case and how it is likely to play out in court. Claims made with the Fair Work Commission need to be filed within a certain time period (21 Days), so if you are having any doubts at all, seek legal advice as soon as possible.

Section 524 of the Fair Work Act 2009 enables an Employer to stand down employees in certain circumstances:

1. Industrial Action (other than that arranged by the Employer);
2. Breakdown of machinery or equipment, if the employer cannot reasonably be held responsible;
3. A stoppage of work for any cause which the employer cannot reasonably be held responsible.

When an employee cannot be usefully employed because of one of the circumstances listed above. Usefully employed means that an employer is able to obtain some benefit or value of work that could be performed by an employee then the employer would not be able to stand down the employee.

No, the Employer is not required to make payments to the employee in that period. (Unless directed by law)

Yes, an employee will continue to accrue entitlements under the National Employment Standards as well as any entitlement to public holidays.

No, an Employer cannot force you, but this may result in a stand down or redundancy if the business structure needs to change. In some circumstances, employers can require you to take leave if your leave is excessive.

1. Redundancy pay as calculated on the time the employee has been employed;
2. Notice
3. Any accrued annual leave and Long Service Leave.

Your employer should consult you for procedural fairness, but in some circumstances, this could be waved.

You need to check the terms of the Agreement or Contract as it may have terms in relation to stand down and seek advice. Considerations for NES & awards need to be considered.

No. An employee is not taken to be stood down during a period when the employee is taking paid or unpaid leave that is authorised by the employer; or is otherwise authorised to be absent from his or her employment.

No, you are protected under the Workers Compensation Act 1987. However, after 26 weeks an Employer can terminate your employment if you are unable to return to pre injury employment. Your weekly entitlements should continue through the Insurer, if eligible.