EMPLOYER CENTRE

Respond, don’t React.

Unfair dismissals are the largest category of applications received each year by the Fair Work Commission, representing more than 40 per cent of total applications made.

It can be confronting to receive an email from the Fair Work Commission letting you know an application has been made for an unfair dismissal.

However, it is important not to act emotionally or in haste. Remember that just because there is a matter lodged before the Commission, this doesn’t necessarily mean you have failed to meet your obligations.

Often issues are resolved at conciliation, and a formal hearing can be avoided. In fact, of the applications finalised after conciliation in 2016–17, over two thirds were settled by agreement the applicant after staff conciliation but before a formal hearing.

Workclaims Australia can help you to prepare for a good outcome. When handled capably by an expert, there are fewer unnecessary technicalities, and the response process does not drain as much time or emotional energy of business owners or their staff. Employers may be relieved to know that the median time lapsed from lodging applications to finalising conciliations in unfair dismissal claims is 34 days. Having competent and knowledgeable representation pays off.

If you have heard from the Commission, call Workclaims Australia on 08 9301 0850 to plan your next steps. It does not matter which state you are in as the Commission has a national jurisdiction.

With a total of 14,135 unfair dismissal applications lodged last year, most employers come across them eventually.

QUESTION

We are a small family landscaping business and we just received an email saying an application has been made for an unfair dismissal. This has never happened before and we don’t know what to do. We just want to call the guy and talk it out.

Brian & Angie

ANSWER

Small businesses are often shocked when this happens, but don’t panic. You have 21 days to respond. We know you want to reach out to the applicant, but our experience shows you must follow the process. Our office can provide information and direction once we look at the history.

QUESTION

I run an events management company and we have had a couple of unfair dismissal claims that haven’t gone anywhere. But we were told we needed better processes. Any advice?

Mark

ANSWER

Hi Mark. You are right to be proactive. A collection of documents, handbooks and agreements are essential once businesses get to a certain size. We can help to review your workplace for your protection.

Are you confident you are being legally compliant under the Fair Work Act 2009?

Your people are your best asset. But hiring people comes with responsibilities. Most employers want to do the right thing, but keeping on top of changes can be overwhelming.

Having been present at hundreds of workplace relations disputes means Workclaims Australia is well placed to help employers know what to look for to avoid having legitimate claims brought against them.

Workclaims Australia work with employers to review existing documentation, set up new contracts, and revise processes and policies to ensure you are fulfilling your obligations. As the Fair Work Commission has a national jurisdiction, we can represent you at a local or interstate level. Awards change regularly, so if you have trouble keeping up to date, getting specialist help is imperative.

Just in case.

A large not-for-profit organisation dismissed a store manager for serious misconduct amid allegations of theft.

CCTV footage purported to show the store manager holding stolen cash. She lodged an unfair dismissal claim.

Because the store manager was not given an opportunity to view the footage and respond properly prior to her dismissal, her unfair dismissal claim succeeded.

Even when there are grounds for dismissal, there are still processes that must be followed. If you are an employer unsure of the expectation of the disciplinary process, talk to us. While the law applies to all businesses, large employers are expected to adopt rigorous procedures.

Our Employment Law services includes things like:
  • Drafting employment contracts, terms and conditions
  • Providing representation for cases of unfair dismissal
  • Drafting and negotiating the resolution of industrial and workplace disputes
  • Offering advice for workplace contracts, including financial advice for termination of employment
  • Offering advice regarding employee and company taxation concerns
  • Drafting and negotiating enterprise agreements
  • Bullying in the workplace issues
  • Drafting terms and conditions of internet and email usage
  • Discrimination and harassment issues

Just in case.

A lender adds a new member to their team to sell mortgages. The mortgage broker is not an employee, but is given the title of independent contractor.

The contractor enters in to a commission-only arrangement with the lender. He is required to attend meetings, training, and perform work for which he receives no payment, as the work performed does not result in a loan being taken out so is not subject to commission.

It could be argued that the relationship traits are more akin to those of an employer/employee. If it is found that the lender has entered in to a sham contracting arrangement in an attempt to avoid paying a minimum weekly base salary, they will incur strict penalties.

Workclaims Australia recommend that companies take seriously the issue of circumstances where they are vulnerable to accusations of sham independent contractors. We can help with all areas of employment contract law.

Our Industrial Law services includes things like:
  • Drafting and negotiating the resolution of industrial disputes
  • Advising clients for workforce restructuring
  • Drafting and negotiate policies and procedures
  • Statutory obligations under Commonwealth and State legislation
  • Risk management of workplace hazards

Just in case.

A buildings material company allowed a casual labour hire worker to operate a crane without adequate supervision. The worker had no training and then did not properly report a safety incident.

However, it was accepted through evidence presented to the Commission that a precedent had been established in that the employer had allowed non-trained casual labour hire employees to operate cranes in the past without incident or reprisal. The employee was reinstated.

Failing to properly address instances of employee conduct promptly when they arise may mean you expose yourself to finding it difficult to justify dismissal for certain conduct at a later date. Workplace Australia can help review and draft employee conduct procedures to comply with the law.

Just in case.

Leo owns a chain of hairdressing stores and relies on his store managers to run the operational side of things. He was genuinely unaware that in one store, the manager was regularly verbally abusive, and staff were regularly crying and stressed at work.

As the owner, he was failing to provide a safe and fair workplace.

As soon as he was made aware of the problem, Leo took swift action to address the situation. No workers compensation claims were filed because there was no failure to act.

However, the chain now has new policies and runs staff training to ensure they have a more proactive approach.

Talk to us about creating uniquely tailored workplace documents for your situation. Being proactive is one of the best protective measures you can take.

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