Find below a collection of questions and answers relating to employment and workplace law.
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With changes to wrongful dismissal laws for companies employing fewer than one hundred persons, is “procedural fairness” still necessary?
Yes, and it is, in all probability, a “term implied by law” in a contract of employment. There are a number of Federal Magistrate Judgments and a suggestion in a High Court Judgment in 2005 which indicates that Courts will imply this term.
If the wrongful dismissal provisions continue to apply to a company, what are the implications for redundancy?
Redundancy is simply a reason for termination. An employee may claim that they have been selected for redundancy for unfair or harsh reasons. “Procedural fairness” is therefore necessary.
Will State laws continue to have force and effect in the workplace?
State Occupational Health Laws will continue to apply, which could have an overriding influence on any Federal agreements that, say, removed provisions for rest breaks or any other aspect that could be invoked as a “safety” issue.
Will the Unfair Contracts jurisdiction disappear?
Yes, except where the applicant is not an employee but a contractor, or where the employer is not a corporation. This will have the effect of “driving” more employment disputes into the Common Law Courts or the Federal Court in its Trade Practices jurisdiction.
Is the new legislation Constitutional?
Probably yes – when it provides for the corporations power of the Constitution to determine terms and conditions of employment for the employees of corporations.
Probably not – where it purports to use that power to regulate Trade Unions and Employer Associations.
Resolve your issue promptly with McArdle Legal, make a confidential appointment by calling today.
FAQs for Employers
Find below a collection of questions and answers relating to employment law for employers.
I have an employee who takes long breaks and often does not show up to work – is there anything I can do?
Yes, apply Procedural Fairness, even if you have fewer than one hundred employees.
How do I select employees for redundancy?
An employer is required to treat an employee fairly and lawfully. For example, the employer can not unlawfully single out an employee for redundancy in an attempt to avoid performance reviews of an employee or to avoid a claim of unfair dismissal by the employee.
Under the WorkChoices legislation, an employer is exempt from any action where they terminate an employee for “operational reasons”. This does not remove the obligation to the “implied term’ of Procedural Fairness. In addition, if the employer says the termination was for operational reasons it is possible for the employee to argue that this was a false reason and it was really some other reason. It is therefore essential to be objective and “open” with employees who are about to be retrenched.
I want to make sure I have a safe work environment for my staff – what can I do?
An unambiguous, accessible and easy to read policy should be in place. Every employee should be aware and “trained”.
I don’t want to be sued if one of my employees harasses another – how can I protect myself?
Training on policies reduces this almost to zero.
Terms and Conditions
I want to produce a suite of contracts for the executives and remaining staff – where can I go?
As a matter of fact, we are able to help.
Can I look at my employees emails?
Yes, but only if (see the NSW Workplace Surveillance Act and Issue One of Newsletter, in the News section of the website) you reach an agreement with the employees beforehand and warn them well and truly in advance.
Can I monitor my employees Internet usage?
See the New South Wales Workplace Surveillance Act and Issue One of the McArdle Legal Newsletter (which is included in the News Section of the website for further information about this). In short, yes, an employer can monitor the employee’s internet usage. However, an agreement much be reached beforehand with the employees. Additionally, the employees have to warned in advance.
Is a “discretionary” bonus scheme really discretionary?
All discretions have to be exercised with equity and good conscience. The Courts emphasise responsibility where power is to be exercised. It is most unwise to simply “decide” not to pay a discretionary bonus without good reason.
The other party to my contract has breached it and I have not been paid for goods/services – what can I do?
The Court will award damages for breach of contract, providing it can be proven. This is a fundamental role of the Common Law.
FAQs for Employees
Find below a collection of questions and answers relating to employment law for employees.
I have heard that under the new workplace laws I will not be able to make a claim for unfair dismissal against my employer – is this true?
If your employer has fewer than 100 employees, that is true, however, if you are terminated without good reason and without being given an opportunity to reply to allegations made, you will continue to have a claim but in a different court.
If you have a clearly written contract of employment, and your employer takes care not to give you a reason unless you can prove some other breach you can only claim the “Notice Provision” in your contract.
How long do I have to make a claim?
If you still have access to the wrongful dismissal jurisdiction, you have twenty-one days. If you have access to the unfair contracts jurisdiction, you have twelve months. If you have access to the anti-discrimination jurisdiction, you have six months. If your claim is a common law one, you have six years.
What if I am out of time?
It is unlikely that you will be able to bring the action, however, if you have any questions you should seek legal advice.
I have been made redundant from my job but I think there is someone else doing my job – do I have any rights?
A position becomes redundant when an employer decides that they do not want the role performed by anyone, any more.
Please see the other answers on redundancy questions for further information.
Bullying and Harassment
I am being harassed at work but I don’t want to leave my job – what can I do?
You must complain to your human resources dept. or some other responsible person. If that is not practical, you can complain to the Federal Human Rights and Equal Opportunity Commission or the State Anti Discrimination Board without leaving the employment. It is also possible, without leaving the employment, for you to obtain relief or rectification of the problem.
Annual/Long Service Leave
I have to resign after 8 years of work – am I entitled to any of my long service leave?
If you have to resign for reasons of sickness or “domestic or other pressing necessity” you are entitled to pro-rata long service leave. The simple test is that, if you leave before ten years are up through your own free will, then you are not entitled to long service leave. If you leave other than through your own free will before ten years are up, then you are entitled.
What rate is my annual leave or long service leave paid at?
Full remuneration which includes car and bonus. It probably does not include superannuation.
Do I have to enter into an AWA?
Probably yes. The new Act seems to make it possible for an employer to sack you if you will not sign. It is not “duress” for you to be told that signing an AWA is a condition of your engagement.
What happens if I refuse to enter into an AWA?
You could be sacked. It is most essential that you obtain advice if someone presents you with an AWA.
I was promised a bonus at work and it was never paid – do I have any right to ask for it?
If you have been promised something in order to entice you to commence employment and you aren’t given it, then you can claim “deceptive and misleading conduct”. If it is a discretionary bonus and you don’t get it because of their “discretion” then you can claim breach of the implied term of fairness and reasonableness in the exercise of a discretion.
I was enticed away from a good job and I am now told that there is no work for me? Do I have any rights?
You can claim “deceptive and misleading conduct” in the Federal Court.
I am a contractor – do I have the same rights as an employee?
It is difficult to give a short answer to this question. In many cases, with the introduction of the new legislation contractors will have more rights than employees.
Workplace Discrimination Lawyers
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