Unfair dismissal provides that a person is protected from dismissal that is harsh, unjust or unreasonable, but only in certain circumstances.
An employee only has 21 days from the date the dismissal takes effect to make a claim, although some exceptions apply.
Read our article on Unfair Dismissal for more information.
The relationship of an employer and employee is a contractual relationship. It is similar to any other contract you may enter into, but it is regulated by legislation and awards to provide certain safety nets for employees.
If an employer dismisses an employee in breach of a written contract of employment, it may be considered wrongful dismissal under the common law.
There are differences between unfair dismissal (provided for under legislation) and wrongful dismissal (breach of contract).
Employment contracts may also be used to recover underpayment of wages and may lead to disputes regarding restraint of trade clauses, confidentiality, notice periods and KPIs. Contracts can be oral, in writing, or a combination of the two.
Whether you are an employer or an employee, breach of an employment contract should be considered in any employment dispute.
An employer may rightfully dismiss a person if the dismissal is a case of genuine redundancy.
A dismissal will be considered a genuine redundancy if:
• the employee’s services are no longer required to be performed by anyone due to changes in the operational requirements of the employer’s business;
• the employer has complied with all its obligations under any relevant modern award or enterprise agreement in relation to the dismissal; and
• it was not reasonable in the circumstances to redeploy the employee within the employer’s enterprise or the enterprise of an associated entity.
If you believe your dismissal was not a case of a genuine redundancy, or you have been accused of making an employee redundant without meeting the requirements of a genuine redundancy, we can provide advice, support and representation.
Under the Fair Work Act, an employer may stand down an employee with or without pay during a period in which the employee cannot usefully be employed because of industrial action or for stoppage of work (including breakdown of equipment) that the employer cannot reasonably be held responsible for.
This may include stoppage of work due to COVID-19.
However, if the employment is subject to an enterprise bargaining agreement (EBA) and/or a contract of employment and either or both provide for standing down an employee, the employer must follow the EBA or contract of employment (not the Fair Work Act).
Discrimination in the workplace can occur if a person treats or proposes to treat an employee differently because of certain attributes.
There are both Federal and State laws that relate to discrimination, not to mention the general obligation to keep staff safe at work (including their mental health).
Generally speaking, discrimination will occur if an employer imposes or proposes to impose a term on a group including an employee with a certain attribute whereby the group can comply with the term but the person is unable to comply with the term because of their attribute and it is not reasonable.
These attributes include:
• Sex
• Relationship status
• Pregnancy
• Parental status
• Breastfeeding
• Age
• Race
• Impairment
• Religious belief or activity
• Political belief or activity
• Trade union activity
• Lawful sexual activity
• Gender identity
• Sexuality
• Family Responsibilities
• Association with or relation to a person with an attribute
• Workplace Bullying
As far as is reasonably practicable, a business must ensure the health and safety of its workers under both Queensland and Commonwealth legislation.
Additionally, the Fair Work Act specifically provides that a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker that creates a risk to health and safety.
In relation to remedies, the relevant quasi-judicial body may make any order – except an order for payment of a pecuniary amount – preventing the worker from being bullied at work by the individual or group in question.
Sexual harassment involves any unwelcome attention or conduct of a sexual nature where it is specifically done to offend, humiliate or intimidate, or where it is reasonable to expect a person to feel offended, humiliated or intimidated.
Sexual harassment may occur in many different ways, including but not limited to uninvited sexual propositions, unwelcome physical contact, leering, remarks made with sexual connotations, displays of sexually graphic material, sexual gestures and questions about sexual history or preferences.
Sexual harassment excludes matters involving mutual attraction and consensual behaviour.
If you have been the victim of sexual harassment, or you have been accused of sexual harassment, we can provide advice, support and representation.
If you are employed in the Queensland public sector or by a local government, you may have fewer Commonwealth protections, but you do have state-based protections.
We have experience with representing public sector employees, including appealing decisions relating to employment that are unfair and unreasonable.
We have also dealt with matters including discrimination, reprisals and forced medical retirement.
Although most public service employees have union membership, when you engage Gibbs Wright Litigation Lawyers, our only interest is you, and we will fight for you.
Employers must not engage in misleading conduct in relation to employment.
The Australian Consumer Law provides:
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
• The availability, nature, terms or conditions of the employment; or
• Any other matter relating to the employment.
Matters relating to misleading conduct relating to employment can be brought in state or federal courts as opposed to QCAT, QIRC or the FWC.
Underpayment of wages refer to any non-payment of legal employment entitlements, including those under contract, appropriate modern awards or minimum wage.
Non-payments may relate to base rates, penalty rates, overtime rates and other wage arrangements applicable to the employment.
There are various ways in which an employer and employee can approach a situation involving underpayment of wages. We assist with advice to both employers and employees regarding the underpayment of wages or entitlements.
An employer is only allowed to make certain deductions from an employee’s wage if:
1. The employee and employer have agreed to the deduction in writing;
2. The deduction is predominantly for the benefit of the employee; and
3. The deduction is allowed under the applicable modern award or enterprise agreements, as well as generally authorised by law.
Any deductions made by an employer outside of these perimeters will likely be unlawful and may entitle an employee to bring a claim for unlawful deduction of wages.
If you believe your employer has made unlawful deductions from your wages, or you have been accused by your employee of unlawfully deducting wages, we can provide advice, support and representation.
If the company you work for goes into liquidation, the liquidator will generally immediately terminate your employment.
Employees will generally be entitled to payment of certain priority entitlements, such as outstanding wages, superannuation, leave entitlements and retrenchment pay.
If there are not enough funds, then employees may be assisted by the Fair Entitlements Guarantee.
We can assist by reviewing your employment contract, award and legislation to determine if you have been underpaid generally (as many struggling businesses don’t pay their staff correctly) and help you recover wages and entitlements owed to you.
Determining whether a worker is an employee or a contractor can feel like a grey area, but we can provide comprehensive advice.
Whilst there are a number of indications as to whether a worker is an employee or not, ultimately, if a worker is treated as an employee, they are an employee.
It doesn’t matter if a contract says otherwise – the law may consider this a ‘sham contracting’ arrangement.
If a business has been paying a worker as a contractor but the law considers them an employee, the compensation available for backpay and other entitlements may be significant.
We can provide advice and litigation services to both employers and employees in relation to sham contracting disputes.
It is common for employers to conduct regular performance reviews with their employees as a forum to provide feedback to the employee and identify or address any concerns, shortcomings or other issues concerning the employee’s performance.
Where the employer considers a problem is of particular concern, including matters involving misconduct or serious allegations of poor performance, the employee may be required to undergo disciplinary action.
We provide advice, support and representation when necessary to both employers and employees regarding performance review and disciplinary matters.
Restraint of trade clauses (sometimes referred to as non-compete clauses) are generally included in employment contracts to prevent an employee from dealing with the employer’s existing customers, utilising confidential information or otherwise unreasonably competing with their former employer once their employment has ended.
As a general rule, companies will want to enforce restraint of trade clauses as much as possible to limit competition and generally protect the company’s client base and trade secrets, whereas employees may want to avoid being limited by such clauses wherever possible.
We can provide advice, and where appropriate help you obtain or defend injunctions and/or claims for breach of contract involving the enforcement of restraint of trade clauses.
There are several factors that should be carefully considered before employers and employees agree to any settlement arrangement.
This includes whether the agreement is lawful (the employer/employee relationship is largely governed by legislation) and the employer’s and employee’s rights are sufficiently protected, and obligations are fulfilled.
Settlements will often involve some form of liability on one or more parties to the agreement, and it is common for a party to insist on the inclusion of a confidentiality clause in the settlement agreement to protect them from further litigation.
We can assist you in all stages of the negotiation process, up until and including settlement.
If the other party appears willing to settle the matter, we can assist with drafting a settlement agreement and the inclusion of any appropriate clauses to provide finality to the matter.
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