Australian employees receive a high level of protection from employment laws. These include protection against unlawful, wrongful and unfair dismissal. And, although you might not realise it, these are quite different.
Before you make a dismissal case against a former employer, you need to determine what sort of case you need to make. This can be difficult without legal advice, so we’d recommend speaking with an employment lawyer if you need more information. As well as this, we’ve provided a quick outline of the main types of illegal dismissal, with the aim of giving you a solid knowledge base to start with.
What Is Unfair Dismissal?
To start with, let’s look at unfair dismissal. To keep things simple, unfair dismissal refers to the termination of employment without good reason or in an unfair or harsh manner. This could include:
Being fired because something unrelated to your job and workplace, including personal issues.
Being dismissed unexpectedly without being told why.
Having your employment terminated due to performance or workplace issues that you haven’t been given the chance to fix.
As you can imagine, the scope of unfair dismissals is wide, and each case is therefore treated on an individual basis by the Australian Fair Work Commission.
If you have recently lost your job and don’t know why, or think that you’ve been dismissed unfairly, there are things you can do about it. You may want to consult employment lawyers who will be able to tell you if you have any hope of getting your job back or of being compensated for wrongful dismissal.
What is unfair dismissal
It is important to understand exactly what unfair dismissal is. The definition may be different depending on what Australian state you are in. In Western Australia unfair dismissal is said to occur when an employee’s dismissal is oppressive, harsh or unfair. An example of this would be when there was no cause for the dismissal, or if the reason for the dismissal was not sufficient to have that result.
It could be that the employee was alleged to have performed poorly, accused of some misconduct, or that dismissal was inappropriate to the offence. Or it could be that the employee was given no chance to explain their alleged action or to prove it was false.
Who can make a claim for unfair dismissal?
In Western Australia, you have to make a legal claim through Western Australian Industrial Relations Commission (WAIRC). The person who can make a claim must:
Have been employed under the state system
Have earned less than $155,800 per year if not employed under an award
Have been dismissed or forced to resign
What happens then?
Legal advisors will advise you to make a claim within 28 days if possible. It costs $50 to lodge a complaint and you will have to provide certain documents. The WAIRC will look into the claim and if they are satisfied you have a case, will set a date for a conciliation conference. This potentially avoids going to court, a lengthy and costly procedure.
The meetings are usually held in Perth or at certain regional centres and each person has to meet their own costs to get there. Notification of dates and times will be given via snail mail, or in the case of urgency, by telephone or email.
Once, employees had no recourse for anything that happened to them in their workplace, whether it was an accident or some kind of unfair treatment from their employers. These days things are different. If something goes wrong that seems impossible to fix, you can quickly consult with employment lawyers and find out what your rights are and what the best way is to go about rectifying your situation.
Simply knowing what your rights are goes a long way towards ensuring you are treated properly, paid the right wage and are given safe and comfortable working conditions. While many Australian employees do know a lot about their rights, some do not for various reasons. Even lack of experience can lead them to suffering injustice unnecessarily.
Then there are people from other countries who work here and may not know what they are entitled to as employees. They don’t fully understand the language, so even if they have an internet connection and know how to do research, reading it does not always explain the answer to their problem in a way they can understand.
This enables unscrupulous employees to make things more to their own advantage and be unfair to their employees, even to the extent of going outside the law in some cases. In other cases it may simply be a matter of carelessness or miscommunication that has caused the problem.
From New York to California, domestic workers are fighting to make new rights a reality.
Almost two years after the Obama administration extended historic labor protections to the nation’s 1.79 million home healthcare workers, those new rights remain in limbo. In September 2013, the Department of Labor (DOL) announced plans to amend a longstanding regulation that has excluded them from earning the federal minimum wage, overtime pay, and compensation for travel on the job. For home healthcare workers in the United States—a group that is nearly 90 percent female—this move marked a significant step towards setting a floor of decent labor standards.
But the rule-change, which was set to go into effect on January 1st, now faces a challenge in federal court, and critics say state legislators are using the ongoing litigation as an excuse to avoid implementing the new protections. At the same time, given that most home healthcare workers are paid through Medicaid and Medicare—two underfunded public programs—many also worry that states will respond to the rule-change by curtailing consumers’ access to quality care. Activists across the country are working to pressure their lawmakers to reckon with these new standards and avoid potential calamity.
If you are wondering whether your dismissal from work would be classed as unfair dismissal or constructive dismissal it is wise to consult good lawyers by checking out Lawyers List because not every state has the same laws. In Western Australia, the term constructive dismissal can be used to describe either one of two scenarios: –
You have been asked to resign by your employer for whatever reason. If you resigned at the request of your employer it is classed as constructive dismissal.
If you have been forced to resign due to the actions or conduct of your employer. For instance, the employer may have breached the terms of the employment contract, or even told you that the terms would be breached so you had no choice but to resign.
Families cannot make ends meet at minimum wage jobs. Over the last forty years, the real value of the federal minimum wage has fallen by nearly 30%. If it had kept pace with inflation, it would be $10.58, instead of $7.25. The tipped minimum wage has been frozen at $2.13 an hour for 21 years; servers have 3 times the poverty rate of the rest of the US workforce. The public overwhelmingly supports raising the minimum wage; many believe it would help the economy by putting money in the hands of families who will spend it. Organizing efforts have helped pass minimum wage increases in dozens of states and scores of cities, providing a raise not only to minimum wage workers, but boosting wages across the low-wage job market. Higher city and state minimum wage levels also help create momentum for increasing the federal minimum; a proposed federal increase to $9.80 would raise the wages of 28 million workers in the US, boost GDP by over $25 billion and support the creation of over 100,000 jobs*
*Estimates by the Economic Policy Institute quoted in NELP’s Issue Brief New Minimum Wage Bills Would Accelerate Recovery and Improve Job Quality, August 2012.
A hand-lettered placard, reading “McDonald’s: Stop Fooling Around, $15 and a union,” caught the spirit of the crowd of at least 3,000 protestors in Chicago for a march to a McDonald’s restaurant in the downtown Loop area connected to the Chicago Board of Trade. In 236 cities in the U.S. and roughly 100 more around the world from Sao Paulo to New Zealand and from Glasgow to Tokyo, according to protest spokespeople, fast food and other low-wage workers joined together to pressure employers like McDonald’s to raise their workers’ pay.
Organizers claimed that it was the largest protest by low-wage workers in U.S. history. And it may very well rank as one of the broadest global worker protests ever undertaken against multinational corporations—one reinforced by recent investigations and lawsuits in Europe against the company for violations of labor, health, safety, tax and other laws.
The protest by tens of thousands of low-wage workers, students and activists in more than 200 American cities on Wednesday is the most striking effort to date in a two-and-a-half-year-old labor-backed movement that is testing the ability of unions to succeed in an economy populated by easily replaceable service sector workers.
Labor has invested tens of millions of dollars in a campaign for a $15-an-hour minimum wage that goes beyond traditional workplace organizing, taking on a cause that has captured broad public support. But the movement is up against a hostile business sector sheltered by a decades-old federal labor law that makes it difficult for workers to directly confront the wealthy corporations that dominate the fast-food and hospitality industries.
For political activists looking to the 2016 presidential campaign and beyond, the wage fight is coming at a potentially pivotal moment, the first concrete, large-scale challenge in decades to an economic system they view as skewed toward the wealthy.
The decision by McDonald’s to raise workers’ pay to at least $1 over the local minimum wage offers some help for the 90,000 employees at the 1,500 American restaurants run by its corporate headquarters, but the relief is minimal and leaves out the far greater number of workers at the company’s franchise outlets.
On average, the raise for eligible workers will lift pay to $9.90 an hour by July, up from $9.01, and to about $10 an hour in 2016. It does not apply to 660,000 employees at 12,500 McDonald’s franchises.
The increase follows moves by other low-wage employers but is more limited. It covers 12 percent of the McDonald’s work force and costs an amount equal to about 2 percent of profits in 2014. The recent raise at Walmart, to at least $10 an hour, covered nearly 40 percent of workers at a cost of about 6 percent of Walmart’s 2014 profits.
Clearly, if the McDonald’s raise were a response to the competition for workers, it would be bigger. And it does not come close to meeting protesters’ demands for $15 an hour, though the movement to improve fast-food workers’ pay has helped to push McDonald’s to this point.
McDonald’s announced on Wednesday that it would raise wages and offer new benefits to 90,000 employees in the 1,500 outlets in the United States that it owns and operates, responding to competitive pressure from a tighter job market and to labor campaigns drawing public attention to its pay policies.
The decision, however, does not affect the 750,000 employees who work for the more than 3,100 franchisees that operate roughly 12,500 McDonald’s restaurants around the country.
The company will increase wages to at least $1 over the local legal minimum wage for workers in restaurants under corporate control to an average of $9.90 an hour by July 1. That average will increase to more than $10 in 2016.
Employees who have worked in company restaurants more than a year will also be eligible for paid time off, whether they work full or part time. An employee who works an average of 20 hours a week might accrue as much as 20 hours of paid time off a year, the company said.
ATLANTA — On a recent Friday, Kwanza Brooks, a $7.25-an-hour McDonald’s worker, climbed into a 14-person van to take a four-hour ride from Charlotte, N.C., to Atlanta.
As she and other workers headed south, Ms. Brooks, a short, fiery woman, swapped stories with her companions about unsafe conditions and unfair managers. Upon arriving, they joined more than 400 other people — including home care aides, Walmart workers, child care workers and adjunct professors — at the Ebenezer Baptist Church, where the Rev. Dr. Martin Luther King Jr. had been a pastor.
The gathering on March 21 was in part a strategy session to plan for the fast-food movement’s next big wave of protests, which is now scheduled for April 15. But the meeting was also seeking to be something far more ambitious. Through some strategic alchemy, the organizers hoped the gathering would turn the fast-food workers’ fight for a $15 hourly wage into a broad national movement of all low-wage workers that combined the spirit of Depression-era labor organizing with the uplifting power of Dr. King’s civil rights campaign
In the wake of the great recession, a sense of righteous anger has spread through the public. The long-standing fact that millions of American workers struggle in jobs with wages so low they can’t provide for their families is taking center stage in our national political discourse. A growing awareness of the extent of economic inequality has galvanized a set of progressive political and social actions that seek to build a more just economy. In 2013 and 2014 alone, at least 12 cities and 17 states raised the minimum wage. Fast-food restaurant workers, who for several years have been organizing for union rights and raises to $15 an hour, went on strike in nearly 200 cities in 2014. Domestic and construction workers, long marginalized in the labor force, are joining together to win rights and recognition.
Asserting that black lives matter also means that the quality of those lives matters. This report takes its title from the #BlackLivesMatter movement, which was founded following George Zimmerman’s acquittal of murder in the death of black teenager Trayvon Martin.
In the time since, #BlackLivesMatter has served both as an umbrella and a focus point for protest and activism in response to the violent deaths of black people across America at the hands of law enforcement officials. The movement hit a peak in the latter half of 2014 as grand juries failed to indict the police officers involved in the deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York City. The explosion of political protest that arose in Ferguson and other cities has inspired a new wave of activism that goes well beyond the individual cases of these black people who lost their lives.
No small business wants to have their reputation dragged through the mud due to an unfair dismissal claim against them, whether they have employment lawyers on hand or not. However, for example when you have a small SEO company there are always going to be employees that don’t do the work you expect of them, or that fail to give the value you wanted for your business in some other regard. What can you do?
Rather than risk putting your business at risk of a lawsuit for unfair dismissal, it is wise to protect it in the following ways: –
Make sure you understand what unfair dismissal is in a legal sense.
Have employment contracts that are fair and just, with all the fine details in them needed to protect your business.
Over the last decade, grassroots opposition to Wage Theft has grown dramatically across the country. Wage theft, the illegal underpayment of wages primarily affects the working poor. It is widespread and occurs in various forms and industries. It is estimated that millions of low wage workers annually are not paid at legally required overtime rates, at minimum wages or for total hours worked. In response workers’ rights organizations have engaged in increasingly sophisticated and successful campaigns to strengthen enforcement and make sure that monies due employees are repaid.