FAQs

Unfair Dismissal

  1. What is the definition of dismissal?

  2. What is an unfair dismissal?

  3. What factors are taken into consideration for an unfair dismissal claim?

  4. What remedies are available for an unfair dismissal?

  5. If I was forced to resign, can I file for unfair dismissal?

  6. What if I do not believe my redundancy is genuine?

  7. I have been given my notice but I haven’t finished work yet. Is it too early to lodge an unfair dismissal claim?

  8. What is the time limit for lodging an unfair dismissal claim?

  9. What happens if I earn over the high income threshold (currently $133,000)?

  10. If I was employed by a small business can I still lodge an unfair dismissal application?

Employment Contracts

  1. What is an employment contract?
  2. What is a fixed term contract?
  3. What is the difference between a contract for services and a contract of service?
  4. How can an employment contract be terminated?
  5. What is a breach of employment contract?

Work Health and Safety

  1. Who is responsible for WHS?
  2. Who is a ‘worker’ under the WHS Act?

  3. What are the benefits of ensuring health and safety in the workplace?

  4. What penalties can a business face?

  5. Does the WHS Act apply to workers who are mobile or working from home?

  6. How can I prove that my business is complying with the WHS Act and regulations?

  7. What if my business has offices in different states? Which laws apply?

  8. Who Enforces WHS Legislation?

  9. As a business owner, what WHS training do I need to provide?

 

Unfair Dismissal

What is the definition of dismissal?

An employee has been dismissed if their employment has been terminated at the employer’s initiative or they have resigned from their employment, but were forced to do so because of a course of conduct engaged in by the employer, referred to as ‘constructive dismissal’.

An employee is not considered to have been dismissed if they were employed under a contract for a specified time period, specified task or for the duration of a specified season, and the employment terminated at the end of that period.

An employee is not considered to have been dismissed if they were on a training arrangement and the employment terminated at the end of the training arrangement.

A person is also not dismissed if they have been demoted unless the demotion involves a significant reduction in remuneration or duties.

 

What is an unfair dismissal?

The Fair Work Act (2009), s 385 provides that a person has been unfairly dismissed if the Fair Work Commission is satisfied that:

  1. the person has been dismissed; and
  2. the dismissal was harsh, unjust or unreasonable; and
  3. the dismissal was not consistent with the Small Business Fair Dismissal Code; and
  4. the dismissal was not a case of genuine redundancy.

 

What factors are taken into consideration for an unfair dismissal claim?

The Fair Work Commission takes a number of factors into consideration when assessing whether a dismissal was unfair. Primarily, they look at whether the termination of employment was harsh, unjust or unreasonable.

The Fair Work Commission will consider:

 

What remedies are available for an unfair dismissal?

If the Fair Work Commission finds the dismissal was harsh, unjust or unreasonable, it may order that the employee be reinstated or the employee be awarded compensation.

The maximum amount of compensation is 26 weeks’ pay. The amount of compensation received will vary in each case and depends on many factors including whether the employee has found alternative employment.

 

If I was forced to resign, can I file for unfair dismissal?

Yes but it is up to the employee to prove that the resignation was forced. If the employer’s actions, conduct, or course of conduct forced the employee to resign, the resignation may constitute a constructive dismissal.

It is not constructive dismissal if an employer acts reasonably in a disciplinary initiative.

 

What if I do not believe my redundancy is genuine?

You may be able to file an unfair dismissal application on the basis that the redundancy was not genuine.

A dismissal is not a genuine redundancy if the employer:

  1. still needs the employee’s job to be done by someone
  2. has not followed relevant requirements under a modern award or enterprise agreement to consult with employees about the redundancy; or
  3. could have reasonably, in the circumstances, given the employee another job within the employer’s organisation or associated entity.

 

I have been given my notice but I haven’t finished work yet. Is it too early to lodge an unfair dismissal claim?

Yes. You will need to wait until your dismissal date actually takes effect. This is often different from the date your employer gives you notice.

 

What is the time limit for lodging an unfair dismissal claim?

There is a 21 day time limit for lodging an unfair dismissal claim with the Fair Work Commission starting from the date your termination takes effect.

The Fair Work Commission may extend that time limit but only in exceptional circumstances.

 

What happens if I earn over the high income threshold (currently $133,000)?

If you have an income in excess of the high income threshold (currently $133,000) and you are not covered by a modern award or enterprise agreement, you cannot seek remedy for unfair dismissal in the Fair Work Commission.

However, our team can advise you on the other avenues for seeking relief for unfair dismissal.

 

If I was employed by a small business can I still lodge an unfair dismissal application?

Employees of a small business (15 or less employees) can make a claim for unfair dismissal provided they have been employed for over 12 months and they can prove their employer did not follow the Small Business Fair Dismissal Code.

 

Employment Contracts

 

What is an employment contract?

 An employment contract is a legally binding document detailing the employee’s rights and responsibilities and the obligations of the employer. An employment contract can be in writing, verbal, or a combination of both.

There are a number of different types of employment contracts including:

 

What is a fixed term contract?

A fixed term contract is an employment contract between an employer and employee that lasts for a specified period or for the duration of a specified task. Generally, a fixed term contract cannot be terminated before the end of the specified fixed term period unless one party has breached an essential term of the contract. If an employer wants to end a fixed term contract before the specified period, they may have to pay out the remainder of the contract.

 

What is the difference between a contract for services and a contract of service?

An employment contract usually either falls under a ‘contract of service’ (employer/employee) or a ‘contract for service’ (independent contractors).

A ‘contract for service’ is usually entered into where the contractor is self-employed and works on his or her own account. A ‘contract of service’ is where the person is employed by another person and works on account of, or in the business of, that other person.

 

How can an employment contract be terminated?

An employment contract may be terminated in a number of ways, including the expiry of a fixed term or on completion of a specified task, a unilateral termination such as a dismissal or resignation, by the mutual agreement of both parties, or abandonment of employment by the employee.

 

What is a breach of employment contract?

A breach of employment contract occurs when one or more of the parties do not honour the terms and conditions contained within the employment contract.

 

Work Heath and Safety

Who is responsible for WHS?

According to the Work Health & Safety Act 2011, any person conducting a business or undertaking (known as a PCBU) has a duty of care to their workers. A PCBU under the WHS Act is defined as:

This means that all employers and business owners are obligated under law to protect the health and safety of their workers.

Business operators have responsibilities regarding health and safety in the workplace and need to ensure that the business does not create health and safety problems for employees, customers or the public.

It is necessary, therefore, that business operators stay up-to-date with WHS regulations, assess the specific risks of the business, report incidents to the relevant authorities, and ensure any Health and Safety Representatives receive their entitlements to training.

 

Who is a ‘worker’ under the WHS Act?

Under the Act, the term ‘worker’ includes:

 

What are the benefits of ensuring health and safety in the workplace?

Creating a safe work environment is critical to the success of your business, and is one of the best ways to retain staff and maximise productivity. Though it may cost to implement safe practices, systems and install safety equipment, the effect of not taking action can be severe, as penalties apply for non-compliance and breaches under the Act.

Breaches of health and safety duties are a criminal offence and can result in heavy penalties or sanctions by the court, including imprisonment, and can apply to PCBUs, the officers (managers) of the PCBU and the worker.  

 

What penalties can a business face?

The maximum penalties under the WHS Act are as follows:

Type of offence

Maximum penalty for corporation

Maximum penalty for officers

Maximum penalty for workers

Category 1 – Breach of a health and safety duty involving recklessness as to the risk of death or serious injury or illness without reasonable excuse

$3,000,000

$600,000 or 5 years’ imprisonment

$300,000 or 5 years’ imprisonment

Category 2 – Breach of a health and safety duty which exposes an individual to death or serious injury or illness (without recklessness)

$1,500,000

$300,000

$150,000

Category 3 – Other breaches of health and safety duties

$500,000

$100,000

$50,000

 

Does the WHS Act apply to workers who are mobile or working from home?

The WHS Act defines ‘workplace’ to broadly mean a place where work is carried out for the business or undertaking. Based on this definition, if a worker performs work on behalf of the business from their home, this is considered to be a place of work. The PCBU must do everything that is reasonably practicable to ensure this area is safe for the employee.

 

How can I prove that my business is complying with the WHS Act and regulations?

All businesses must have a system in place to monitor their obligations under the WHS Act and regulations. This is demonstrated by:

 

What if my business has offices in different states? Which laws apply?

The Work Health and Safety Act 2011 is national legislation, which commenced on 1 January, 2012.  

The WHS legislation includes Regulations and Codes of Practice which have been adopted in the all States and Territories with the exception of:

This means that, in Victoria and Western Australia, businesses need to comply with the current State based Occupational Health & Safety laws until the harmonised/national legislation has passed through parliament.

 

Who Enforces WHS Legislation?

Compliance and enforcement of the WHS Act is provided by the following State Regulators:

Prosecutions for offences under the WHS Act are undertaken by the Regulator who have the power to issue Improvement Notices, Prohibition Notices, Enforceable Undertakings and prosecution for offences.    

 

As a business owner, what WHS training do I need to provide?

Any PCBU must provide information, training and instruction to their workers so they know how to carry out their work in a safe manner without any risk to their health. This includes information, training and instruction that covers:

New workers should also be provided with induction training that includes: