Employment lawyer Warrnambool
Employment law advice in Warrnambool and surrounding areas.
Claven Burdess provide employment law advice to clients in Warrnambool and surrounding areas.
We assist in relation to the following employment issues:
- Unfair dismissal
- General protections
- Contract advice
- Pay issues
- Workplace harassment
- Workplace investigations
- Entitlement issues
Unfair dismissal applies if an employee gets terminated from their job in circumstances that were:
- ‘harsh, unjust or unreasonable’ and
- not in accordance with the Small Business Fair Dismissal Code where the person was employed by a small business and
- not a case of a genuine redundancy.
In determining whether the termination was ‘harsh unjust or unreasonable’, the following factors are taken into account:
- whether there was a valid reason for the dismissal that relates to a persons capacity or conduct (this includes any impact on the safety and welfare of other employees).
- whether that person was notified of that reason
- whether that person was given an opportunity to respond to any reason related to capacity or conduct
- if the dismissal is related to unsatisfactory performance – whether the personal had been warmed about any unsatisfactory performance before the dismissal.
- the degree to which the size of the business could impact on the procedures followed in effecting the dismissal.
- any unreasonable refusal by the employer to allow you to have a support person present to assist with any discussions relating to dismissal
- any other matters the Fair Work Commission (FWC) considers relevant.
Who is covered by the unfair dismissal provisions of the Fair Work Act?
- In a small business (with fewer than 15 fewer employees), an employee is covered if they have worked for at least 12 months.
- For larger businesses, employees are covered after six months.
- There is an additional hurdle for employees of small business. Even if an employee has worked in it for 12 months, a dismissal will not be unfair where the small business has complied with the Small Business Unfair Dismissal Code.
- Under the Fair Work Act, a dismissal will not be unfair if an employer can show that it was a “genuine redundancy”.
What is a “genuine redundancy”?
A genuine redundancy is made up of the following factors:
- That the employer no longer requires the employee’s job to be done by anyone because of changes in operational requirements. For example, a downturn in business.
- That the employer has complied with any consultation obligations that it might have.
- That it would not have been reasonable for the employer to redeploy the employee that was made redundant within the employer’s business or related entity.
Employees need to keep in mind:
Employees have 21 days from the date the dismissal came into effect in order to bring a claim. In some instances of fair work commission has a discretion to accept late applications exceptional circumstances.
A claim can be brought by lodging the appropriate application form which can be found on the fair work commission’s website.
Once a form has been lodged, the commission will check the application to ensure that it is valid and complete and if it is, a copy will be sent to the employer.
The commission will then organise a conciliation conference to occur, which usually occurs over the telephone between the parties. This process is intended to be informal and private.
If the matter is not resolved reconciliation the employer and employee received notification from the fair work commission regarding any conference or hearing.
Employers need to keep in mind:
Employers need to be vigilant in ensure to comply with the correct processes when dismissing an employer. Even when an employer believes they have sufficient reasons to terminate an employee, they need to follow the correct processes. This may involve providing warnings, providing training or collecting evidence. For employers the best way to avoid claims of unfair dismissal is to make sure that they understand their obligations under the Fair Work Act.
If an unfair dismissal application is lodged by an employee, and employer is able to obtained if they believe the employee was not unfairly dismissed, or for other reasons such as the application being lodged outside the requisite time limit or if they believe the employee is not covered by the unfair dismissal laws.
Claven Burdess employment lawyers in Warrnambool can provide advice and representation in relation to unfair dismissal matters.
General protections claims
General protections are a series of “protections” in the legislations that are designed to:
- protect workplace rights;
- protect against intimidation, misrepresentation and coercion;
- protect freedom of association;
- provide protection from discrimination at work;
- provide relief for anyone who is might be discriminated against, victimised, or treated unfairly at work.
The General Protections provisions aim to accomplish this by stipulating that a person can’t take ‘adverse action.’ What this means is that a person must not terminate someone’s employment, discriminate between one worker and another or treat a worker unfavourably because you have a ‘workplace right’, have exercised a workplace right, or you propose to exercise a workplace right.
What’s a workplace right? Well, an example would be if a worker sought a pay rise after discovering that they were being paid incorrectly. A workplace right can also relate to occupational health and safety matters.
A general protections claim could be related to a dismissal, but does not necessarily need to be. You are able to still be employed and working somwhere and utilise the general protections provisions to assert your rights at your place of employment.
Employers can be fined in some instances if a claim is brought against them by an employee.
If you are about to be terminated for exercising a workplace right, act quickly. Courts have the power to stop your boss from terminating you if they have breached the general protection provisions of the Fair Work Act including by issuing injunctions.
Claven Burdess employment lawyers in Warrnambool can provide advice and representation in relation to general protections matters.
Leave entitlement issues
The National Employment Standards (the NES) provide the minimum conditions that must be met for all employees who are covered by the national workplace relations system. Minimum leave entitlements are included within the NES and apply to all eligible permanent employees.
The National Employment Standards accounts for different leave types, including annual leave, sick leave, carers leave, long service leave, community service leave, maternity leave and compassionate leave.
What leave am I entitled to?
If you are not a casual worker, every year you’re entitled to four weeks of annual leave, ten days of paid and two days of unpaid personal leave. You’re also entitled to two days of compassionate leave.
All employees, except casuals, are entitled to 4 weeks of annual leave, 10 days of paid and 2 days of unpaid personal leave and 2 days of paid compassionate leave which accrues annually.
In relation to long service leave, in Victoria an employee is able to request to take long service leave after seven years of continuous employment with an employer.
Parents are generally speaking entitled to unpaid parental leave, and eligible parents can apply for government funded parental leave.
When an employee resigns or is terminated, they’re entitled to be paid any outstanding annual leave and long service leave entitlements. In some instances, further entitlements may also be paid in addition.
If you have issues in relation to your employment entitlements and are looking for an employment lawyer in Warrnambool, contact Claven Burdess Lawyers.
Underpayments or incorrect wage issues
It’s not uncommon for mistakes to be made in relation to the calculation of wages. This can sometimes result in underpayment or overpayment that can continue for many years. It is unlawful for an employer to underpay an employee.
If you’re an employee and believe you are not getting paid appropriately, the first thing you should do is raise the issue with your employer. If you feel like the issue is not being addressed, then you can contact the Fair Work Ombudsman or engage a lawyer to assist you.
If you’re an employer and you are unsure regarding wage payments, you should contact the Fair Work Commission or engage a lawyer.
Claven Burdess employment lawyers in Warrnambool can provide advice and representation in relation to underpayment or wage issues.
WorkCover is a scheme that aims to provide assistance to people that have been injured at work.
What kind of injuries?
WorkCover covers an umbrella of injuries including physical injuries sustained on the job, injuries aggravated at work, diseases or illnesses from work, conditions such as cancer and strokes, as well as mental injury conditions.
A worker must show that there’s a connection between their employment and the injury in order to be able to claim.
To make a claim an employee must complete a WorkCover claim form and serve that on the employer. The employer must then forward that to the relevant insurance company to be determined.
What possible entitlements are there?
If the claim has been determined and accepted, the worker is entitled to the payment of medical and like expenses. This means any medical expenses related to the injury or condition, provided those expenses are ‘reasonable.’
The worker is also entitled to the payment of weekly payments. Weekly payments are based on an average of the workers earnings in the period leading up to the injury. Payments are calculated as a percentage of past income.
In some cases, employers are still required to pay superannuation to a worker while they are on WorkCover.
In some cases, injured workers can pursue lump sum compensation for their injury (or injuries).
The first potential lump sum is called an impairment benefit. This claim can be made once an injury has stablised – that is, the injury is not getting better, not getting worse. The claim involves being assessed by a specialist doctor who grades the injury and puts a percentage figure on it.
Any lump sum payment amount is based upon the percentage figure awarded.
The second potential lump sum is called a common law damages claim. If your injury was due to the fault or negligence of another party, you may be able to pursue this claim.
In addition to negligence, you need to show that you have a ‘serious injury’. This claim should be brought within six years from the date of the injury.
Claven Burdess employment lawyers Warrnambool can provide advice and representation in relation to WorkCover matters.
Employment lawyer in Warrnambool, Claven Burdess.
If you require an employment lawyers in Warrnambool, contact Claven Burdess We offer a free case assessment.
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