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Industrial Relations in Review February 2019

Both employees and employers start out the employment relationship with good intentions. However sometimes for a variety of different reasons, the employment relationship does not end the way it was started.

For employers, it is important to be aware of the different claims employees can make to ensure you are putting in place proactive steps to resolve any issues before they reach the stage of a formal claim being made. Being aware of the types of claims that exist can help you with this.

General Protections Claim

Under the Fair Work Act 2009 an employee can make a General Protections Claim whilst they are employed or within 21 days of their termination if they believe that adverse action has been taken against them because they have a workplace right or have not exercised a workplace right. Adverse action could include dismissing the employee, not giving them their legal entitlements, changing their job to their disadvantage, treating them differently than others, not hiring them or offering them unfair terms and conditions compared to other employees.

Examples may include

  • An employer refusing to interview an employee for an internal role because she is pregnant
  • An employer cutting a casual employees hours as they participated in protected industrial action
  • An employee being terminated because he questioned his leave entitlements

For further information on General Protections claims click here.

Bullying, Discrimination & Harassment Claims

If an employee believes they have been bullied, discriminated or harassed in the workplace, they have the below options to make a claim:

  • Applying to the Fair Work Commission for an order to stop bullying. Click here for further information.
  • Making an application to the Australian Human Rights Commission if the employee is experiencing discrimination, harassment or bullying due to their gender, pregnancy, marital status, disability, race, age, sexual preference, union activity, political opinion or religious or social origin. Click here for further information.
  • Making a claim to their relevant state health and safety authority that regulates and investigates breaches of WHS laws, including bullying and harassment.
  • If the claim relates to discrimination, making a claim to the state anti-discrimination body that investigates breaches of state and territory anti-discrimination laws. For a full list of the relevant bodies click here.

Unfair Dismissal Claim

If an employee believes they have been unfairly dismissed, they have 21 days from the date of their dismissal to make an unfair dismissal claim to the Fair Work Commission.

A dismissal will be seen as unfair if it was harsh, unjust or unreasonable. Employees must have completed their minimum employment period to be able to make a claim (6 months for businesses with 15 or more employees or 12 months for businesses with less than 15 employees).

For further information on unfair dismissal claims click here.

Unlawful Termination Claim

Employees who are not eligible to make a General Protections Claim may make an Unlawful Termination Claim within 21 days of their dismissal taking effect if they believe that their termination was on one or more of the following grounds:

  • Temporary absence from work because of illness or injury
  • Trade union membership or participation in trade union activities
  • Non-membership of a trade union
  • Seeking office as, or activity or having acted in the capacity of, an employee representative
  • The filing of a complaint, or the participation in proceedings, against the employer involving an alleged violation of law or regulations
  • Race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political option, national extraction or social origin
  • Absence from work during parental leave
  • Temporary absence from work for the purpose of engaging in voluntary emergency management activity

There is an overlap between unlawful termination claims and general protections claims. Employees eligible to make a General Protections Claim cannot make an unlawful termination claim.

Underpayment of Wages/Entitlements Claim

If an employee believes they are not receiving the minimum entitlements under their applicable award or National Employment Standards, they can contact the Fair Work Ombudsman who will work with both parties to mediate the dispute. If the employee is still not happy with the outcome, they can take legal action via the Federal Circuit Court. This is referred to as a ‘small claim’ and must be for less than $20,000 and be within 6 years of the alleged underpayment. For further information on small claims click here.

If you’d like to keep up with the latest Industrial Relations news, call us on 1300 887 458.