Employment Issues
Unfair Dismissal
If you think you are unfairly dismissed and want to investigate bringing an Application for Unfair Dismissal then you need to determine:-
If you are employed under Federal or State Law.
A If under State Law; Queensland Industrial Relations Act of 1999 applies and pursuant to Section 74 (2) the Application must be made within twenty one (21) days after the dismissal takes effect or a further period the Commission allows. This means you need to get advice urgently from either your Lawyer or the Queensland Industrial Relations Commission at:-
Queensland Industrial Relations Commission
GPO Box 373
BRISBANE QLD 4001
- There is a filing fee for such Applications.
B If under Federal Law; Workplace Relations Act 1996 applies. That Application is made to the Australian Industrial Relations Commission and conciliated in the Commission but if unresolved may be pursued by way of arbitration either in the Commission or through Court action. The Application must be brought within twenty one (21) days.
- There is a filing fee for such Applications.
There are also a number of excluded categories of employees who cannot bring unfair dismissal claims and the qualifying period is now six (6) months
What is an Australian Workplace Agreement?
Under the new WorkChoices Legislation your employer can ask you to enter into an Australian Workplace Agreement. Since March 2006 if you are employed by a company then your employer is dealt with under the Federal System Workchoice as are most employees and employers in Victoria, ACT, Northern Territory, Christmas and Cocas Islands, Waterside, Maritime and Flight Crews.
If you do not fit into that category then you may still be within the State System. If you are a current employee you cannot be compelled to sign a Workplace Agreement. If you are a new employee your employer can require as a condition of your employment that you enter into such an Agreement.
- You must be given a copy of the Agreement and of the Information Statement not less than seven (7) days before you enter into the Agreement.
- There are transitional provisions for staff under a current State Award and these will continue for three (3) years.
- There is an Australian Fair Pay and Conditions Standard that you can access on the WorkChoices Website.
Have you been paid all entitlements including accrued leave, allowances and any payments in lieu of notice (if no notice is given)?
- If not all entitled holiday leave, overtime or other allowance, contact the Industrial Inspector (Department of Industrial Relations) in your area. The Industrial Inspector will be able to assist you in resolving any disputes over unpaid leave and allowance entitlements provided that your annual income does not exceed $50,000.00, otherwise you will need to take the matter up through a lawyer.
- You may be entitled to payment in lieu of notice if you are a permanent employee (casual employees are generally not entitled to such a payment, but this largely depends on the length of employment so you should still make enquiries with the Industrial Inspector) and your employment is terminated without notice, for a reason other than your misconduct. The minimum period of notice required depends on length of service. See Industrial Relations Act of 1999.
- If you are under a State Award, contact Wageline to check on notice requirements prescribed by the Award governing your employment.
Did your employer provide you with a Centrelink Employment Separation Certificate stating the reasons for termination?
Your employer is legally required to provide this on your last day at work. This will enable you to lodge the form with Centrelink and have an immediate entitlement to social security benefits (otherwise there is a six week waiting period prior to payment).
Is your Employer solvent?
This is an important question. It may be that there are no assets against which you can claim your entitlements; and bringing an Application for unfair dismissal or to claim entitlements could be a waste of time. Make a few enquiries; if the employer is a company, have administrators or liquidators been appointed? If so, you should write to the administrator/liquidator setting out your claims and you will have to take your place in the queue of company creditors. If your employer is a business who are the registered partners? Do they have any assets (property) registered against which you can recover any monies owing to you?
For more information please make an appointment with one of our Lawyers:-
Marg Kummerfeld - Partner
Derek Butler - Partner