Employment Law

Employment Law | Thexton Lawyers

If you are engaged in paid work, you have various entitlements that your employer must abide by. Both part-time and full-time employees are entitled to paid leave. Leave can include both holiday leave and also personal, or sick, leave. The key to leave entitlements is to openly discuss with your employer when you would like to take leave so that a mutual time can be agreed to and both parties are fully aware of the situation.

The Fair Work Act sets out how much leave each employee is entitled to. Generally, an employee is entitled to a minimum of 4 weeks of paid annual leave. Further, your industry award or Enterprise Bargaining Agreement may set out additional annual leave entitlements above and beyond the 4 week minimum. If you remain with the same employer continuously, your leave will accrue each year. This means that if you only take 1 week of leave during 2 years of employment, you are entitled to 7 weeks of annual leave.

Personal, or sick leave, is also another entitlement that your employer must afford you. Generally, for each year of service with an employer, an employee is entitled to 10 days of paid personal or carer’s leave. Unlike annual leave, sick leave does not accrue progressively from year to year. That means you are only entitled to 10 days of paid personal or carer’s leave per year. It is possible that your industry award or Enterprise Bargaining Agreement may grant you the ability to cash out your personal leave.

Having a baby is often a joyous time in both your life and to those around you. Depending on how long you have been working for your employer, you are entitled by law to 12 months of unpaid parental leave and may request an additional 12 months.

While you are on parental leave, you have various rights that your employer cannot ignore. Your employer can not terminate your position whilst you are away on parental leave or change your job to your disadvantage while you are away. If they do, this is called workplace discrimination and should apply to the Fair Work Commission to have your employers actions dealt with. The Fair Work Commission can, amongst other things, reinstate your position or order that your employer pay you your lost wages.

Contact our Glenn Thexton for a free initial consultation and he will advise you on what your entitlements are and the process going forward.

There are three main ways your employment relationship can be terminated; redundancy, resignation ordismissal.

If your employer wishes to terminate your contract there are various notice requirements they must abide by. The Award for your industry or an Enterprise Bargaining Agreement in your workplace may also provide additional requirements above those set out in the Fair Work Act. Provided that such a termination is not unfair in many instances, your employer must provide you with a valid reason as to why you are being dismissed.

If your employment contract is terminated, your employer must either provide you with written notice of when the termination will take effect or pay you instead of giving you notice.

The amount of notice required is set out in the Fair Work Act and is dependent on how long you have worked for your employer. If your employer wishes to terminate your employment, they must provide you with written notice of the day of termination. For example, if you have worked with your employer continuously for more than 3 years, but no more than 5 years, you are entitled to 3 weeks of notice. If your employer wishes to terminate your employment without providing you such notice, they must pay you for those 3 weeks of notice you would have otherwise been entitled to.

If you are aged over 45 years old and have completed at least 2 years of continuous service with your employer, you are entitled to an additional week of notice. This is to help you transition between workplaces and recognises the difficulty that you may face in being re-employed.

Unfair dismissal is when an employee is dismissed, meaning being fired or terminated, from their job in a harsh, unjust or unreasonable manner.

There are three main ways your employment relationship can be terminated; redundancy, resignation or dismissal.

To determine whether or not your dismissal was unfair there are various factors you should consider:

  • Have you been provided with a valid reason for the termination?
  • Were you notified of your employers decision to terminate you?
  • Have you been given an opportunity to discuss the termination with your employer?
  • Is the termination related to your conduct at work?
  • Is the termination related to your performance at work?
  • Have you been given the opportunity to improve your performance?
There are no hard and fast rules that apply to how determine if your dismissal was unfair. Something you can be sure about is that if you feel that you were unfairly dismissed, you may have a claim under the Fair Work Act.

More often than not in unfair dismissal cases, your employer might force you to resign. This is a common practice employed by employers who choose to use their position to influence your decision. This is referred to as constructive dismissal and if it is unfair then you may still have a claim that you were unfairly dismissed.

There are two remedies for unfair dismissal; reinstatement or compensation. The preferred option by the Fair Work Commission is to find a way to mediate the issues and reinstate the employee to their previous position. If this is unworkable given the circumstances of your case, or if you simply wish to not work for the employer given the way you have been treated, you are entitled to compensation.

Upon your first free initial consultation with us, we will advise you on whether or not you have been unfairly dismissed and provide you with preliminary advice of the remedies you may be entitled to.

If you feel that you have been dismissed unfairly, you need to contact us as soon as possible. You only have 21 days from when the dismissal takes effect to lodge a claim with the Fair Work Commission. If this applies to you, please call our principal Glenn Thexton at 0410 639 921 or contact one of our solicitors at your nearest office.

There are three main ways your employment relationship can be terminated; redundancy, resignation or dismissal.

If your employment relationship is terminated because it has been made redundant, the redundancy must be genuine. What is genuine redundancy? If the operational requirements in your employer’s structure no longer require your job to be done, this is a genuine redundancy.

When an employer terminates someone’s contract under the guise of a redundancy and employs someone else, maybe a younger and lower paid employee, to perform a similar role, this is not a genuine redundancy.

We have found over many years of practice that older employees often find themselves in this position. It is important that you contact Glenn Thexton office@thextonlawyers.com.au or one of our solicitors as soon as possible as there is a 21 day time limit to apply for unfair dismissal because of a redundancy.

It is important that you feel comfortable and respected at work. If you feel that your employer has discriminated against you at your place of work, please contact us immediately as your Fair Work Act rights may have been infringed.

Discrimination can include when an employer dismisses you or discriminates against you and another employee. While it may seem obvious when you are dismissed, or fired, discrimination covers a broad range of areas, including your:

  • race;
  • sex;
  • sexual orientation;
  • physical or mental disability;
  • marital status;
  • pregnancy; and
  • family or carer’s responsibilities.

More often than not, it is difficult to determine if you have been discriminated against at work. An employer may restructure your position, and reduce your responsibilities, while you are on parental leave. When you return, you find that your role has changed to your detriment. This means that you have been discriminated against and it is important that you contact the Fair Work Commission urgently.