Workplace Law for Employees

 

What does JFMLAW do for employees?

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Have you been subject to a workplace complaint?

Being the subject of a workplace complaint, and subsequent investigation, can be a challenging period for any employee.

It is important to be aware of your rights as an employee when you are the subject of a complaint:

  1. That you are given an opportunity to respond to the complaint;
  2. That the investigation and complaint is kept confidential;
  3. That you are updated on the progress, status and timing of the investigation;
  4. For the investigation to be finalised in a prompt and timely manner;

Often a formal investigation will require a response from the employee. Drafting this response is an essential step in responding to an investigation.

It most cases, an employee who is put on leave during the period of the investigation will continue to be paid for the period of that investigation.

Do you believe you have an underpayment of wages claim?

Employees who are covered by a Modern Award are generally entitled to be paid an hourly or weekly rate for ordinary hours that they work, and a special penalty rate for any overtime hours that they work. Sometimes, employment contracts give you an annual salary instead. Most Modern Awards require various formal steps to be taken until this can be done. They also require you to be ‘better off overall’ by receiving your annual salary than you would have been had you received the hourly or weekly rates and penalty rates payable under the Modern Award.

If your employer is not paying you in accordance with your employment contract or you are being paid under the relevant award or your annual salary does not leave you “better off overall”, you may have been underpaid.

Many employment contracts give employees the opportunity to receive bonuses. These bonuses may take the form of extra money, shares or other benefits. Employment contracts often say that an employee will not always be entitled to a bonus and that the employer has a ‘discretion’ to pay them. While this is true, most employment contracts will be interpreted to require the employer to act reasonably when deciding whether or not to pay a bonus. This is particularly so where the bonus is linked to objectively verifiable performance metrics. If you have clearly met the criteria for a bonus, you may be entitled to it even if the employer exercises a discretion not to pay it to you.

Have you been bullied at work?

Workplace bullying is persistent unreasonable behaviour towards a worker or group of workers that causes a risk to health and safety. That is, it must:

  • Be persistent, in the sense that it happens repeatedly over a period of time.
  • Be unreasonable, in the sense that it is irrational, disproportionate or unfair.
  • Cause a risk to health and safety, including a risk of stress or anxiety.

It can include things like spreading malicious rumours, repeated harsh or unfair negative comments, and repeated failures to give an employee sufficient work that is adequate for his or her position. Management action which is reasonable, in the sense that it is fair, rational and proportionate, will not be bullying.

Many employers have an internal complaints policy which allows you to report bullying. If your employer has one, you should follow that policy. If not, you should write a letter to your employer which:

  • Describes in detail at least three situations in which you were bullied.
  • Describes how the bullying has made you feel and how it has affected your work.
  • Outlines what you want to achieve by making the complaint, such as a move to a different department, having the bully move to a different department, having a mediation with the bully, or having the bullying stop.

If the bully is the manager to whom you are required to make the complaint, you should send the complaint to another senior person in the organisation.

If your employer’s response is unsatisfactory, you may be able to commence proceedings at the Fair Work Commission for a Stop Bullying Order. You can commence these proceedings by filling in a Form F72, which can be downloaded from the Fair Work Commission’s website. You can use the details that you used in your complaint to help you prepare the application.

Do you need help to file an unfair dismissal claim or a general protections claim?

What is an unfair dismissal?

An unfair dismissal is a decision on the part of an employer to terminate an employee’s contract or force an employee to resign, in a ‘harsh, unjust or unreasonable’ manner.

For example:

  • There was no valid or well-founded reason for the termination.
  • The employee had not received any warnings prior to the termination, or had not been given an opportunity to respond to any such warnings.

You may consider commencing an unfair dismissal action if you:

  • Have been employed by the employer for at least six months, or at least 12 months in the case of a small business employer with fewer than 15 employees; and
  • Earn an amount that is under the high income threshold.

What is a wrongful termination?

A wrongful termination is a decision on the part of an employer to terminate an employee’s contract in circumstances in which the contract did not give the employer a power to do so. This claim is usually used by employees who don’t qualify for an unfair dismissal claim because they earn an amount that is higher than the income threshold.

If you’ve been dismissed unfairly, unreasonably or in breach of your employment contract, you might consider commencing proceedings at the Fair Work Commission for unfair dismissal, or start court proceedings for wrongful termination or a breach of the general protections provisions.

We’ll help you understand the best process to take, and how to go about it.

What is a general protections claim?

A general protections claim arises where an employer takes ‘adverse action’ against an employee for a prohibited reason.

Prohibited reasons include:

  • An employee’s participation in lawful union activities.
  • Discriminatory reasons, such as the race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin of the employee.
  • An employee’s exercise of his or her workplace rights, such as the right to take leave or to make a complaint about his or her employment.

If the employee proves that the adverse action was taken, the employer is required to prove that they did not take the adverse action for a prohibited reason.

How we can help you

As your unfair dismissal lawyers, we can help you by:

  • Advising you as to whether you have an unfair dismissal or wrongful termination claim.
  • Helping you to determine what a favourable resolution or outcome might look like.
  • Helping you with commencing and running unfair dismissal and unlawful termination proceedings.
  • Advise you on how to ensure that the decision to commence unfair dismissal or wrongful termination proceedings does not stop you from taking the next step in your career.

Do you understand your workplace rights to complain, take leave or question your pay?

What is a workplace right?

Workplace rights are defined very broadly under the Fair Work Act 2009. These rights exist where:

  1. A person is entitled to a benefit or has a role under a workplace law or instrument (such as an award);
  2. A person is able to initiate or participate in proceedings under a workplace law or instrument;
  3. A person has the capacity under a workplace law to make a complaint or inquiry to a person or body to seek compliance with that workplace law. Such complaints must relate to award or NES matters.

Have you been told you will be made redundant?

There are a number of things to consider when you are being made redundant:

  • Is this a legitimate redundancy?
  • Am I getting the proper pay, based on my years of service and age?

It is important when leaving employment to ensure that you are protected. When leaving employment you should also consider requesting a certificate of service or reference from your previous employer.

Do you understand the non-solicitation and non-compete clauses in your employment contract?

Post-employment restraints affect what employees can do after they have left that employment. They may prevent employees from setting up or working for a competitor, from soliciting the business of any of the employer’s clients, and from starting up a new enterprise with their former colleagues. It is important for employees to understand how post-employment restraints will affect their career trajectory.

Restraints of trade

Restraint of trade clauses are often included in employment contracts to protect the commercial interests of the employer. The two most common types of restraint of trade clauses are ‘non-compete’ clauses and ‘non-solicitation clauses’.

  • ‘Non-compete’ clauses prevent a former employee from setting up or working for a competitor who operates within a defined geographical area for a particular period of time. This prevents the former employee from using confidential information and ‘know how’ gained from the former employer to benefit a competing business and damage the employer’s market position.
  • ‘Non-solicitation’ clauses can prevent a former employees from soliciting the business of any of the employer’s clients, or from enticing other employees to join a new or different business. This helps employers to stop former employees from disrupting their workforce and client base.

It is important to note that restraints of trade will not be enforceable against a former employee unless the employer proves that the restraint is no broader than is reasonably necessary to protect its legitimate interests.

Give us a call – 02 9331 0266

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