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Question 1

I’ve been fired because I was sick. What can I do?

Accepted Answer

Under the Fair Work Act 2009 (Cth), an employer is not allowed to fire or dismiss an employee because they have been temporarily absent from work due to illness or injury.

An employer also cannot dismiss an employee for taking sick days in relation to a recognised disability. This includes mental disorders and illnesses as well as physical illnesses and injuries.

Question 2

Am I an employee or contractor?

Accepted Answer

Determining whether you are an employee or contractor can be difficult at times. Sometimes, an employer will call you a contractor when you are actually an employee, just to avoid certain obligations and responsibilities they would otherwise owe you. This is called “sham contracting”.

Our experienced employment lawyers can help you determine whether you are an employee or contractor and what rights you may have in relation to sham contracts.

Question 3

I’m being underpaid at work, what are my rights?

Accepted Answer

Being underpaid at work is unfortunately common. Underpayment of wages or wage theft is when your employer pays you less than your minimum entitlements.  If your employer fails to pay your minimum entitlements in full and on time, you are entitled to recover these and may even claim interest and pursue a civil penalty.

Question 4

Can I run the same business as my previous employer?

Accepted Answer

The answer will depend on various factors. The first place to look is your employment contract. A standard employment contract will usually have a restraint of trade clause or a non-compete clause.

Restraint clauses can be difficult to enforce and may not hold up in court. It is a good idea to talk to an employment lawyer and get comprehensive legal advice before starting or defending a restraint of trade dispute.

Question 5

Can I make complaints to my employer about my employment?

Accepted Answer

Yes, within reason. An employee is entitled to make complaints and inquiries about their employment in accordance with the Fair Work Act.

If your employer treats you less favourably because of a complaint that you’ve made to them, this could be considered adverse action, and you might be entitled to bring a claim against your employer.

Question 6

I am being bullied at work. What can I do about it?

Accepted Answer

Being bullied at work is not uncommon. The legislation allows people who are being bullied to seek an order stopping the other person from bullying them.

If the person still bullies you after an order has been made, then you may be able to apply to a court for an injunction against the bully.

Question 7

What are my rights as a national system employee?

Accepted Answer

As a broad guide, you are a national system employee if your employer is:

• the Commonwealth of Australia;
• a private or public company; or
• a sole trader.

You are usually not a national system employee if you work for:

• the State Government – for example, for Queensland Health or the Queensland Police Service;
• a local government body – for example, Brisbane City Council;
• a company which is a wholly owned subsidiary of the local government.

Exceptions may apply, so it is important to seek independent legal advice.

Whether you are a national system employee will affect which legislation affects your employment.

The relationship between national system employers and employees is governed by the Fair Work Act 2009 (Cth).

However, other employees, such as State Government employees, are generally not protected under this Act. Instead, rights and processes relating to their employment are generally found in state legislation, such as the Anti-Discrimination Act 1991 (Qld) and the Public Service Act 2008 (Qld).

Question 8

Am I entitled to overtime pay?

Accepted Answer

Often employers will expect their employees to work additional hours, especially during busy periods.

Whether your employer is required to pay you for your extra hours involves consideration of factors including:

• is the overtime reasonable?
• is the overtime paid? and
• is there an alternative?

The National Employment Standards and the Fair Work Act 2009 (Cth) govern overtime and cover most employees. Your modern award or employment agreement may contain provisions which address when an employee is considered to be working overtime and how they should be paid.

Question 9

What is a whistleblower?

Accepted Answer

A whistleblower is a person who discloses information about wrongdoings for the benefit of the public.

In Queensland, whistleblowers are protected from criminal prosecution or legal action taken against them.

The Corporations Act 2001 (Cth) confers protections on employees who disclose information relating to breaches of the Act or the Australian Securities and Investments Commission Act 2001 (Cth).

If an employer treats an employee adversely because of their whistleblowing activity, then this could give rise to a general protections claim under the Fair Work Act 2009 (Cth).

While these protections are available, it is important to note that there are limitations imposed, so it is vital that you seek legal advice.

Question 10

Are there any exceptions to workplace discrimination?

Accepted Answer

There may be some situations where treating an employer differently to others may be acceptable and isn’t considered discrimination.

Under the Fair Work Act, there are certain situations that may not be considered discrimination. For example:

• where the behaviour is permissible under state or territory anti-discrimination laws;
• where the behaviour is based on essential requirements for the position; or
• where the action is taken in accordance with religious beliefs, taken in good faith and to avoid harm to that religion.

Question 11

I’m being sexually harassed at work. What should I do?

Accepted Answer

Sexual harassment is unwelcome conduct of a sexual nature. It includes:

• sexually suggestive comments;
• intrusive questions about your private life;
• sexually explicit text messages and emails; and
• unwelcome physical contact.

Sexual harassment in the workplace can be committed by an employer, a colleague, a contractor or a person who is in a working relationship with you.

Employees have a right to a workplace that is free from discrimination, sexual harassment and vilification.

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