EMPLOYMENT LAW

Employment Law

We act for employees and employers in respect of all matters arising out of the employment relationship. Our focus is to determine the outcome you want and work with you to achieve that in the most cost-effective way. Areas which we practice are: 

• Unfair dismissal  

• Redundancy 

• General Protections/Adverse Action claims 

• All discrimination-based claims  

• Sexual harassment claims 

• Breach of contract 

• Underpayment claims 

• General employment advice  

• Contract preparation / policy preparation / performance management documentation 

• Executive coaching 

​

• Unfair dismissal 

Who can make a claim for unfair dismissal?

• Full-time or part-time Employees who have been employed continuously for six months and are not employed by a small business. A small business is one with less than 15 employees.

• Employees of a small business who have been continuously employed for 12 months.

• Casual employees who have worked regular and systematic hours of employment and who had a reasonable expectation of ongoing employment.

Employees who earn more than $175,000 per year cannot make a claim for unfair dismissal. This is called the high-income threshold. When calculating earnings for the purpose of determining the high-income threshold you exclude the value of commissions, bonuses, irregular overtime and superannuation paid at the statutory guarantee rate. If an employee is excluded from making a claim for unfair dismissal because of the high income threshold, there may be other remedies such as a general protections claim or a claim for breach of contract / Enterprise Agreement.  

What is an unfair dismissal?

In order to terminate someone’s employment there must be a valid reason which is sound and defensible and has been determined applying procedural fairness and proper methods of investigation. The legal requirements for a successful unfair dismissal claim are:

1. The dismissal must be harsh, unjust or unreasonable

2. The dismissal must be inconsistent with the Small Business Code

3. The dismissal must not be the result of genuine redundancy.

Generally, someone is unfairly dismissed when the conduct the employer relies upon to terminate the employment, even if it did occur, was not so bad that it would have prevented the employment relationship from continuing.  

Strict timelines on making an unfair dismissal claim 

An employee has 21 days to bring a claim for relief from unfair dismissal at the Fair Work Commission. The 21 days is counted from the day the dismissal took effect, and it is only in very exceptional circumstances that a claim can be made outside of the 21-day period.  

Making a claim for unfair dismissal 

Should you wish to proceed with a claim we will assist you by first engaging with your employer to see if a resolution can be reached. If a resolution cannot be reached then we will file an application for you at the Fair Work Commission seeking compensation and/or reinstatement. That application will then be served on your employer. The Fair Work Commission will then convene a conference to occur via telephone. That conference will be conducted by a Fair Work Conciliator and we will represent you at the conference. Settlement can generally be achieved at conference. If a settlement cannot be achieved then the matter will proceed to a hearing to be heard at a later date determined by the Fair Work Commission.  

Unfair dismissal claims generally take 4 to 6 weeks to get to a conference, this is dependent on the timetabling of the Fair Work Commission.  

If you win or you lose your claim, generally you are not able to claim your legal costs from the other side and the other side cannot claim their legal costs from you. This is a general rule only and in situations where there is a finding of dishonesty, or one party has conducted the litigation unreasonably, costs may in fact be claimable or payable by you.  

What are the remedies? 

If you have been unfairly dismissed, the remedies that are available to you are compensation (capped at 6 months lost wages) and/or reinstatement. Other matters which are achievable on settlement are a statement of service, confidentiality and mutual non-disparagement (meaning the employer can’t say anything bad about you and you can’t say anything bad about them).

• Redundancy

What is a redundancy? 

A genuine redundancy occurs when the role that you are employed to perform no longer exists. It may cease to exist by deliberate design, which is the employer’s prerogative, or it may cease to exist for some other reason such as a downturn in business. Additionally, most Enterprise Agreements and Awards require employees to be consulted about a redundancy before it occurs and the failure to consult can of itself make the redundancy not genuine.  

Is there an obligation to redeploy? 

In the case of a genuine redundancy the general answer is No, unless there is something written to the contrary in your Award, Enterprise Agreement or contract. That said, if an employee has been made redundant and there is another role within the business that they could have performed and they were not offered that role, then that may be a basis to argue that it was not a genuine redundancy. This interrelates with the obligation to consult employees about the redundancy before it occurs.   

What is redundancy payment? 

A payment for redundancy is a payment to compensate you for the fact that your role has ceased to exist, and the loss of your job was in no part reflective on your performance. Redundancy pay is paid in addition to the notice pay which an employer must pay you.  

Minimum standards for redundancy payment are set out in the Fair Work Act however your Award or Enterprise Agreement or contract employment may provide for greater redundancy benefits. The minimum redundancy benefits are as follows: 

Minimum of 1 years but less than 2 years: 4 weeks 

Minimum of 2 years but less than 3 years: 6 weeks 

Minimum of 3 years but less than 4 years: 7 weeks 

Minimum of 4 years but less than 5 years: 8 weeks 

Minimum of 5 years but less than 6 years: 10 weeks 

Minimum of 6 years but less than 7 years: 11 weeks 

Minimum of 7 years but less than 8 years: 13 weeks 

Minimum of 8 years but less than 9 years: 14 weeks 

Minimum of 9 years but less than 10 years: 16 weeks 

10 years or more: 12 weeks capped 

Redundancy payments are calculated in accordance with your base rate of pay and do not include commissions, bonuses, overtime or allowances.  

If you are employed by a small business, which is one that has less than 15 employees, then unless you have a written contact that states otherwise, you are not entitled to a redundancy payment. Similarly casual employees are not entitled to a redundancy payment.