Employment Lawyers Melbourne

Employment Lawyers Melbourne

Employees enjoy extensive workplace privileges under Australian law, such as legal protection from workplace bullying and unfair dismissal. It is vital that both employees and employers are aware of the latest information in employment law; employment lawyers may assist you in finding out current legislation.

Employees should be aware of their rights in the workplace, including any entitlements or the conditions under which they may be sacked. Employers should also be keenly aware of these conditions to minimise any costly legal procedures should a mistake be made during the termination of an employee.

Basic employee entitlements under workplace law include:

• Minimum wage and rates of pay;
• Suitable employment conditions;
• Workplace health and safety measures and procedures;
• Not being discriminated against, harassed, or bullied.

Employers and employees are also required to give adequate notice to the other party should either decide to terminate employment relations. These rules most often apply to employers, who may be subject to severe penalties if they don’t give adequate notice to a terminated employee.

Both parties should also be aware of formalities regarding employment contracts and codes of conduct, as these documents are often referred to during employment disputes.

This article aims to inform employees of their rights, and employers of their obligations, under employment legislation. In particular, the Commonwealth Fair Work Act 2009, which applies to all Victorian employees from casuals to CEOs.

Case studies will be used to provide examples of specific applications of employment law, such as keeping a job, workplace bullying, unfair dismissal, redundancy, unlawful discrimination and the rights of contractors/high-income employees.

Unfair dismissal

Unfair dismissal cases are some of the most common cases examined in workplace law, and are a frequent cause of dispute between employees and employers.

Employees found to have been unfairly dismissed by the Fair Work Commission are entitled to extensive remedies under the Fair Work Act 2009. The principal remedy is reinstatement, but this rarely occurs due to the damage such a dispute is likely to cause to the employment relationship.

In unfair dismissal cases, many employers are represented by lawyers, or can rely on the experience of human resources professionals to fight a claim brought against them. As a result, many dismissed employees who go without legal representation receive trivial amounts of compensation or none at all.

Employees who believe they have been unfairly dismissed should obtain legal advice. The chance of procuring adequate compensation or a suitable remedy likely outweighs the costs involved in obtaining legal representation. Cases taken on by employment lawyers regularly result in awards of over $15,000 in compensation for the dismissal. So it is worth at least seeking preliminary legal advice to determine the strength of your case if you are an employee.

Some employment lawyers offer no-win-no-fee based services, subject to conditions. Many lawyers prefer to be consulted prior to the dismissal taking place, so that adequate evidence may be obtained. This means that it is often best for employees to begin building a case as soon as they suspect they are going to be dismissed.

Generally, the Fair Work Commission may find a dismissal to be unfair if any of the following can be demonstrated:

• A dismissal was unjust, unreasonably harsh, or otherwise inappropriate in the circumstances;
• An employee was dismissed but not due to genuine redundancy;
• An employer cannot provide a valid reason for the dismissal;
• In the case of an employee being dismissed by a small business employer, the dismissal occurred in contravention of the Small Business Fair Dismissal Code

Can I make an unfair dismissal claim if my employer is a small business?

A small business is one which employs fewer than 15 people (besides casual employees), unless they are employed on a systemic and regular basis). As long as your salary is under the high-income threshold of $162,000 and you have been employed for longer than 12 months you will be able to make a claim. Keep in mind that the Fair Work Commission does view small business cases differently to those of larger employers. Small businesses are bound by different dismissal legislation, in the Small Business Fair Dismissal Code. The requirements of the code can be summarised as:

• The employer must give notice to a dismissed employee;
• If the termination is the result of a summary dismissal, the employer must hold a reasonable belief that the employee engaged in serious misconduct;
• If the termination is due to unsatisfactory conduct, incapacity, or performance, the employer must have given warnings to the employee prior to dismissal, as well as opportunities to respond to these warnings and improve their conduct.

If you believe that your employer acted in contravention of the above requirements, you should obtain legal advice to determine your rights to compensation or reinstatement.

Can I be dismissed over social media comments?

It is possible for employers to lawfully terminate employment in some circumstances due to an employee’s social media conduct. It is increasingly common for employers to include social media clauses in employment contracts and codes of conduct, which list requirements and expectations regarding social media use. If you act in contravention of these requirements, you may be subject to disciplinary measures as you would be if you engaged in any other form of misconduct. Repeated breaches of these requirements may provide grounds for lawful dismissal.

Generally, employers expect employees to demonstrate good behaviour on social media, especially if their account is ‘public’ and links that employee to the employer. Employers have a legal right to protect their reputation from unjust or unreasonable comments made by employees on social media.

Nevertheless, if you believe your dismissal was unreasonably harsh or unfair, you may still be able to make a claim against your employer. In this case you should seek legal advice as soon as possible.

What if I was dismissed for complaining about discrimination in the workplace?

This is unlawful under the victimisation provisions laid out in Victoria’s Equal Opportunity Act 2010. The Act states that it is unlawful for an employer to dismiss you for making, or threatening to make, a complaint to an external body about workplace discrimination. It is illegal for an employer to subject you to any form of detriment or injury of employment due to you making or threatening to make such a claim.

These laws exist so that employees who have experienced or witnessed discrimination in the workplace can complain about it without fearing reprisal.

Is it unfair dismissal if I was terminated for taking sick leave?

A temporary absence is not lawful grounds for dismissal, especially if that absence is the sole reason for the dismissal. Protections exist under the Fair Work Act 2009 which entitle employees to occasional absences as a result of injury or illness.

In the event that you believe you will be absent, you must obtain a medical certificate and give this to your employer. Your employer may make reasonable demands, such as giving you adequate time off as determined by the medical professional but not longer, and you must comply with these reasonable demands. So long as you do this, then a temporary absence of less than one month does not constitute sole grounds for dismissal.

If you believe that your absence will be longer than three months, you may not be protected by the Act, so you should discuss this with your employer and seek legal advice to determine your specific rights in the circumstances.

How much notice must an employer give prior to dismissal?

Amounts of notice required to terminate your employment are usually outlined in your employment contract. As long as you have signed this contract and it is lawful, that amount is what your employer must adhere to. If it is not outlined in your employment contract, you may find information relating to notice requirements in any awards or enterprise agreements covering your employment. These requirements can also differ depending on the type of dismissal, or reason for termination that is given by the employer.

Unfair dismissal case study

In a case which occurred in Victoria during early 2013, a small business employer in the form of a childcare and early learning centre dismissed an employee on the grounds that they had repeatedly left children alone. Such conduct was in clear contravention of the employer’s code of conduct.

The employee took the case to the Fair Work Commission in the form of an unfair dismissal claim. The employer claimed that it had disciplined the employee a number of times over this conduct; however, they were not able to provide evidence to the Commission of this having occurred. As a result, the Commission ruled in favour of the dismissed employee and ordered compensation to be paid.

This case demonstrates how strict the rules are surrounding unfair dismissal. If an employer does not meet the strict formality requirements laid out in the legislation when terminating employees, they may face damaging claims such as this one. This case also demonstrates how easy it can be for a dismissed employee to obtain compensation through the Fair Work Commission.

Unlawful discrimination

Discrimination can be a dangerously insidious workplace issue, and can occur in a variety of ways. Unlawful discrimination laws are largely outlined in Victoria’s Equal Opportunity Act 2010. Although such discrimination may be the basis for an unfair dismissal or workplace bullying claim with Fair Work Australia, claims can also be brought before the Victorian Human Rights and Equal Opportunities Commission.

The Equal Opportunity Act 2010 splits unlawful discrimination cases into two groups: direct discrimination and indirect discrimination.

Direct discrimination occurs when an individual is treated unfavourably due to the fact that they possess a certain attribute which is protected by law. For example, if an employee is not considered for a promotion on the basis of their sex or gender. Anti-discrimination laws require the person making the claim to demonstrate that the offending party treated them less favourably than they would have treated someone who does not possess that same attribute (i.e. sex, disability, and race).

Indirect discrimination occurs when a condition, practice, or requirement appears to be made accessible to everyone when in fact it disadvantages individuals or groups who possess certain attributes, or when a requirement, condition, or practice is imposed on individuals for whom such requirements are not reasonable. Basically, indirect discrimination occurs when it is disadvantageous to be treated the same as everybody else due to the fact that you possess a protected attribute.

An example of indirect discrimination may occur in a workplace where staff are required to be at work at 8:00 every morning for the mere reason that work meetings have traditionally been held at 8:30, and there are staff at the workplace who are disadvantaged by this due to parenting commitments. In this case, it is unreasonable and may amount to discrimination because the expected time of arrival is not required to meet the inherent requirements of the job.

Victoria’s anti-discrimination laws

The Equal Opportunity Act 2009 makes it illegal to discriminate against someone due to the fact that they are affected by any of these protected attributes:

• Age;
• Lawful sexual activity;
• Breastfeeding;
• Marital status;
• Pregnancy;
• Race;
• Sex;
• Religious or political actions or beliefs;
• Disability;
• Gender identity;
• Physical features/appearance;
• Sexual orientation;
• Industrial activity;
• Parental or carer status;

It is also forbidden to discriminate against someone due to their association with someone on the basis of the associate’s status in relation to any of the above. Victorian laws are administered by the Equal Opportunity and Human Rights Commission.

Commonwealth discrimination laws

There are also specific laws enacted at Commonwealth level which protect individuals from discrimination on the basis of age (Age Discrimination Act 2004); sex, gender, orientation, relationship status etc (Sex Discrimination Act 1984); ethnicity, nationality, race or descent (Racial Discrimination Act 1975); disability (Disability Discrimination Act 1992).

Specifically relating to employment, the Fair Work Act 2009 protects employees from discrimination in the workplace. The Fair Work Act prevents employers from taking ‘adverse action’ on the basis of an employee’s sex, race, sexual orientation, disability, family/carer’s responsibilities, marital status, age, pregnancy, religion, political opinion, social origin or descent, or industrial activities such as union membership.

Under the Fair Work Act, discrimination needs to be have been demonstrated through adverse action, such as the termination or injury of employment, to be enforced through the Fair Work Commission.

Keeping your job

If you believe that your employer intends to replace you with a younger employee, or in any case, an employee who is not affected by a protected attribute which affects you, your employment is entitled to protection under the Victorian Equal Opportunity Act 2010.

In the case of an employer seeking to replace you due to your age, you may make a claim of discrimination based on age or physical features, which is illegal under the Act. You will need to demonstrate that the adverse action taken against you is being carried out purely as a result of your possession of a protected attribute, such as age. This may be observable through comments made by managers, or through an analysis of interview candidates for the position.

You may make a complaint in accordance with your employer’s grievance procedure, or to the human resources department. If this is unsuccessful and you still fear that your employment may be terminated on a discriminatory basis, you should seek legal advice.

Unlawful discrimination case study

An employee of a major health services company was facing termination over alleged harassment of other employees. In response, the employee made a complaint under the old Act (Victorian Equal Opportunity Act 1995) stating that the employer had discriminated against him by failing to accommodate his disability. The employee had been injured, which had resulted in a disability which the employer failed to accommodate by making changes to the workplace.

In light of this, the Victorian Equal Opportunity and Human Rights Commission struck an agreement between the two parties at conciliation, resulting in the employee resigning with all accrued entitlements paid.

This case demonstrates how even when an employee is troublesome and facing lawful termination, they are still eligible for compensation if they were discriminated against in the workplace. Therefore it is important that employees are aware of their rights and entitlements, and that they should seek legal advice if they believe they have been discriminated against.

Workplace bullying

A persistent and expensive problem for many industries, workplace bullying usually constitutes the unlawful harassment or intimidation of an employee which breaches that employee’s workplace health and safety rights. In order to be defined as bullying, the offending behaviour must be repeated and directed (actively or passively) towards the victim. Examples of bullying behaviour include:

• Repeatedly demanding that an employee perform an excessive amount of work without assistance or support;
• Regularly excluding an employee from workplace events or functions;
• Verbal harassment, or written harassment (work emails etc.);
• Rumour spreading.

This list is by no means exhaustive. Bullying behaviour can often be unique to the circumstances of the people involved. The Fair Work Act forbids workplace bullying, however it also states that reasonable and repeated demands by management that an employee reach performance standards does not constitute bullying.

What are the motives behind workplace bullying?

Workplace bullying can occur out of general malevolence, but it is often accompanied by an ulterior motive. For example, the bullying behaviour may be carried out with the intention of forcing the victim to resign or forego one of their workplace rights (such as sick leave or superannuation). Cases such as this are particularly suited to compensation by Fair Work Australia, as such conduct by management or competitors for promotion is completely unconscionable.

Fellow employees may feel uncomfortable about speaking up on behalf of the bullied employee, lest they be subject to the same treatment. For this reason, it is always best to take action to defend yourself and your rights in the workplace. An employment lawyer is able to assist you in building a case should your employer refuse to assist you in resolving the matter.

This being said, in-house remedies often do exist for internal disputes such as bullying. As an employee, you should always attempt to follow your organisation’s grievance policy, and consult with management, before seeking external assistance.

Does micromanagement constitute bullying?

If managers are unnecessarily interfering with an employee’s work on a regular basis, it may constitute bullying if done so in a manner which damages the health and safety rights of that employee. Micromanaging behaviour by an employer or manager includes:

• Constant requests for updates or reports;
• Scrutinising all work in a critical manner;
• Reviewing any correspondence involving you;
• Requesting that other staff, or even clients/customers, provide reviews of your performance;

A constant and unreasonable focus on an area in which you can improve, without any acknowledgement of the fact that you are performing well in all other areas.
Such behaviour can be uncomfortable to endure, however it is important to note that micromanagement can occur for a variety of reasons. A manager may simply be overzealous, perhaps due to being new to the role, meaning that they do not intend to cause harm or discomfort to the affected employee/s. In such a case, discussing this with the manager in question as well as other managers should lead to a resolution. However, there are documented cases brought before the Fair Work Commission where micromanagement has been used as a bullying instrument by malevolent managers.

Such cases are highly specific to individual circumstances affecting that workplace and the individuals involved, so you should seek legal advice if you believe you are being maliciously micromanaged. This is especially the case if you believe the offending manager has an ulterior motive (such as forcing you to resign).

Bullying as a result of personality conflicts

Personality conflict is often given as a reason why unlawful behaviour such as bullying has occurred in the workplace. Besides being totally unprofessional, such an excuse can obviously not be used to defend such a claim in a legal setting.

If you believe you are being targeted by a manager or fellow employee specifically due to your personality, you should follow your employer’s grievance procedure in an attempt to resolve the dispute internally before taking any further action.

An effective employer will be able to counsel the affected parties ensuring that they are made aware of their responsibilities in maintaining a healthy, safe, and harassment free work environment. If the behaviour persists or help cannot be obtained elsewhere in the organisation, seek legal advice to protect your right to work in an environment free of bullying.

Workplace bullying case study

In a high profile case settled in 2013, a senior corrections officer in Victoria was awarded $125,000 in damages for workplace bullying that occurred during her time working for the Department of Justice. In addition to the $125,000 in damages, the victim was awarded $188,000 in compensation for loss of earnings as a result of the bullying.

Case Background

In this case, the employee experienced repeated and serious bullying at the hands of her manager at a Warrnambool corrections facility over a number of years. Behaviour including verbal abuse, unfair treatment, and malicious micromanagement was found to have resulted in the employee suffering from depression and anxiety which caused her to resign from her position.

Case Outcome

The Department of Justice was found to have failed in its obligations to provide a workplace which meets health and safety requirements. There was also a lack of action by management to address the problem despite concerns being raised by the victim.

This case illustrates the pain and suffering that can result from workplace bullying, as well as the remedies available to victims. If you believe you are being bullied, and your employer has not taken appropriate action to resolve the issue, you should seek legal advice so that you can receive a resolution in line with your rights under workplace law.

Redundancy

Redundancy can occur as a result of many circumstances that can vary significantly and are often based on specific conditions unique to each case. Genuine redundancies are often accompanied by a tax-free payment, so it can be in the interests of employers to avoid paying out a redundancy. Employers may avoid this by increasing workloads or raising performance targets to the point where inefficient employees are dismissed due to them no longer meeting the requirements of the role.

What if I was dismissed?

If you are dismissed rather than made genuinely redundant, you may have a stigma attached to you when applying for other jobs as dismissal usually occurs as a result of consistently poor performance or serious misconduct.

In a situation where genuine redundancies are being paid, employers should consult with affected employees as early as possible, and make it clear that the positions are being made redundant. Efforts should be made by the employer to find suitable alternative positions within the enterprise for affected employees. If this is not possible, a suitable redundancy payment should be made and a proper notice given to the employees who are being made redundant.

Many employers do not comply with this process, as it is an expensive and time consuming one that undoubtedly creates a short-term burden on operations in comparison to a simple and immediate dismissal.

You are generally entitled to a redundancy payment proportionate to your experience and length of employment. These payments usually range from four to 16 weeks of pay. Legal advice can ensure that you are paid what you are owed and you receive any compensation you may be entitled to.

My employer told me that my role no longer exists, can I claim redundancy?

Your employment is governed by several instruments, such as employment contracts, legislation, enterprise agreements, and awards. The first step towards calculating your redundancy entitlements is to determine whether or not your employment is covered by an enterprise agreement or award, as these generally outline whether or not you are entitled to a redundancy payment.

Next, you should refer to your employment contract, as it may contain a redundancy clause. If your contract does not contain any information about redundancy, you can make a claim under the relevant legislation. Even if your contract does contain a redundancy clause, you may be able to make a claim under legislation if that contract fails to meet minimum legal redundancy entitlements.

The Fair Work Act 2009 makes it possible for employees not covered by a contract or award/enterprise agreement to claim redundancy payments. To make a claim under the Fair Work Act 2009, certain conditions must be met:

• Your termination has to be the result of a genuine redundancy;
• You must have been employed for more than 12 months;
• You must be a permanent, not casual, worker;
• Your employer must not be a small business employer.

Alternatively, your employer may redeploy you within the enterprise, so long as that redeployment does not result in you being offered a job with lower pay or conditions than the one that was made redundant.

Employment law can be complex and circumstance specific, so it is best to seek professional legal advice if you wish to make a claim or determine your rights.

Redundancy case study

The following case study is a typical occasion where an employer is reluctant to meet their redundancy obligations to terminated employees. Luckily, the terminated employee in this case sought legal advice and was able to obtain their redundancy entitlement in full.

Case background

The client was employed by a manufacturing company which was purchased by a multinational organisation. Following the takeover, the multinational asked its new employees to sign new employment contracts. The client, upon realising that the new contract reduced their redundancy entitlement by about $30,000 refused to sign the contract. After continuing to work under the old contract, the client is eventually made redundant when the multinational restructures the manufacturing operation.

The multinational paid the client a redundancy payment, however, the payment made initially was the one outlined in the new contract (the one which the client refused to sign). This means that the client was paid $30,000 less than the amount they were contractually entitled to.

Upon seeking legal advice, the client commenced legal action against the employer, who repeatedly refused to pay. Finally, on the day of the court hearing, the employer agreed to pay the $30,000 as well as an extra $5000 in costs.

Case outcome

In this case, the dispute was resolved due to the employee being proactive about their entitlements and not hesitating to seek legal advice in the face of contractual non-compliance from their employer.

How employment law affects contractors and high-income employees?

Employees with high-income ($162,000) are often bound by more complicated and personalised contracts than those governing the employment of other workers. As a result, it can be more difficult to determine the rights of such employees upon termination. In the event that a terminations clause is not included in the employment contract, such terms can often be implied through law.

High-income employees are still eligible for protection under the Commonwealth Fair Work Act 2009. Employers are often unaware of this, assuming that highly-paid employees are exempt from Fair Work legislation when this is not the case; the legislation applies to all workers, from those on minimum wage to CEOs.

Another common method used by employers to get around Fair Work legislation is to employ workers as contractors rather than employees.

How to determine whether you are employed as an employee or a contractor?

In some cases, you may be legally employed by a different company to the one for whom you actually work. It is possible in some circumstances to demonstrate that you are actually employed by the company rather than the employment agency, in which case you may be entitled to additional protections.

Basically, if you are employed by a recruitment agency or other contracting service, you are likely employed as a contractor. If you are employed directly by the company for whom you work, you are an employee. Employers often utilise the services of recruitment agencies in order to minimise expenses relating to staff turnover and employee entitlements.

Still, all contractors working for recruitment agencies are entitled to the same rights as all other employees regarding:

• Minimum pay rates
• Employment conditions
• Workplace health and safety
• Workplace bullying, harassment, and discrimination.

Independant contractors

Independent contractors on the other hand, work for themselves and sell their services to other parties. Independent contractors are required to pay their own tax and superannuation, and generally negotiate terms of their engagement on a case by case basis with whomever their current contract is with.

Terms of termination are often outlined in the contracts under which contractors work. If a principal acts in breach of such a contract, you may be able to take legal action to seek specific performance or damages.

What about contractors?

Generally, contractors or sub-contractors have their own ABN and in a sense function as a business themselves. For this reason, it is important that contractors understand their tax and superannuation obligations, which differ from those that apply to regular employees.

It is a fact that many employers are turning to contractors in response to what they see as being radical laws in the form of Fair Work legislation. This is not necessarily a bad thing for all workers, as working as a contractor or sub-contractor entitles you to negotiate your own pay and conditions, often allowing for more flexible performance and incentives-based rewards.

The Independent Contractors Act 2006

The Independent Contractors Act 2006 allows contractors to seek legal assistance if a contract is deemed to be unfair or harsh. If you are working, or intend to work, as an independent contractor or sub-contractor and are concerned about your rights, or believe an employer has breached the contract, you should seek legal advice.

Owner drivers, forestry, construction, and IT workers often work as independent contractors or sub-contractors. However, the practice is becoming increasingly widespread across a range of industries and workplaces, especially in the creative industries.

Case study involving a contractor

In this case study provided by the Victorian Small Business Commissioner, an owner driver working as an independent contractor had their contract terminated by a hirer on the basis of a contract breach due to serious and wilful misconduct. The owner driver made a claim to the VSBC seeking compensation, damages, and for the contract to be reinstated.

The VSBC arranged mediation between the two parties, at which the contractor was represented by the Transport Workers Union and the hirer was represented by a law firm.

Mediation resulted in a successful resolution, with the parties coming to a settlement. The settlement involved the reinstatement of the contract after it had been reviewed and had its terms changed. The changes placed additional obligations on the contractor, such as a requirement to pass a safety assessment and provide the added capability of a metro run service.

This case is an example of how disputes involving independent contractors can often be resolved outside of court due to the added flexibility of working and employing under individual contracts. It also shows that contractors are still entitled to protections under the law, but that it is their responsibility to be aware of and enforce these protections.

Drafting employment contracts

A critical means of ensuring the success of any employment relationship is taking a thorough and considered approach to all aspects of the employment contract. There are no legislative requirements for professional drafting (by a lawyer) of employment contracts. As a result, simple templates prefilled with generic terms and conditions may be utilised by employers to formalise their relationship with employees. Even when the generic terms and conditions are altered, they still often lack the required degree of specificity to realistically argue for enforcement of the contract, if required.

As experienced contract lawyers and employment lawyers, LGM Advisors are always able to assist employers in the drafting and drawing of employment contracts. We strive to ensure that your commercial and professional interests are reflected in contract terms, and that the contract truly reflects the understanding you and your prospective employees share in relation to their engagement.

Legal disputes in relation to employment law are expensive and very time consuming for those involved. Having your employment contract reviewed by our professional employment lawyers will minimise the risk of unforeseen legal complications arising. If required, we can assist you in negotiating terms and conditions, as well as formulating specific modes of action to be taken in the event of an employment dispute.

Conclusion

Employment law in Australia outlines strict requirements which employers must adhere to when hiring, terminating, and providing employment conditions for employees. It is of vital importance that all parties are aware of their rights and obligations under the Commonwealth Fair Work Act 2009, which applies to all Victorian employees, even those employed with high-incomes. Additionally, the Victorian Equal Opportunity Act 2010 provides further protections against unlawful discrimination. Employers should be sure to draft employment contracts in accordance with these laws, and adhere to lawful procedure when dealing with troublesome or inefficient employees. Likewise, employees should make themselves aware of their rights, and seek legal advice if they believe these rights have been breached.

Contact the LGM Advisors, employment lawyers in Melbourne today on (03) 9832 0608 or by email at contact@lgmadvisors.com.au.

Helpful links:

Commonwealth Fair Work Act (2009)