In Australia, we have a range of legislation that covers the rights and responsibilities of both employees and employers to make sure that workplaces are safe and secure and that employment conditions are fair and equitable.
Typically, the legislation that governs workplaces is federal legislation – that is it applies to all businesses across the country. However, at times there are tailored regulations that apply to specific states and territories.
The various pieces of legislation and regulations which cover Australian workplaces and work-related issues include:
- Fair Work Act 2009 (Cth)
- Privacy Act 1988 (Cth)
- Workplace Gender Equality Act 2012 (Cth)
- Anti-discrimination law
- National Employment Standards (NES) set out by the Fair Work Ombudsman
- Work Health and Safety Standards (WHS)
The good news is that most employers aim to do the right thing. Looking after employees makes good business sense. However, from time to time, there can be issues and disagreements in the workplace. Issues can arise between an employee and employer or between employees. If these cannot be settled within the workplace, then disputes can be resolved under the law.
Some of the most interesting disputes in recent times include the case of Rugby Union star Israel Folau’s dispute with Rugby Australia over his social media posts and sawmill worker Jeremy Lee. Mr. Lee’s employer dismissed him as they wanted him to use his fingerprint to sign into a new workplace security system. Mr. Lee refused, since his fingerprint was his biometric data, and he believed his employer was overstepping his privacy. In both cases, while there were other legal issues involved, the employees took their employers to the Fair Work Commission for unfair dismissal.
What is unfair dismissal?
Unfair dismissal is considered to have occurred when an employee is dismissed from their job in a harsh, unjust, or unreasonable manner.
The most important thing to remember is that dismissed employees only have 21 days to apply to the Fair Work Commission for unfair dismissal. We recommend seeking legal advice immediately after an employee has been dismissed in circumstances that are harsh, unjust, or unreasonable.
The Fair Work Commission may consider an employee has been unfairly dismissed if:
- the person was dismissed
- the dismissal was harsh, unjust, or unreasonable
- the dismissal was not a case of genuine redundancy
- the employee worked for a small business, and the dismissal was not done according to the Small Business Fair Dismissal Code (if applicable).
In deciding whether a dismissal was unfair, the Fair Work Commission will consider a range of factors including:
- if there was a valid reason for the dismissal related to the employee’s capacity or conduct
- if the employee was notified of that reason and allowed an opportunity to respond
- if the employer did not allow the employee to have a support person present at any discussions about the dismissal
- whether the employee had been previously warned that their performance was unsatisfactory
- whether the size of the business/employer or lack of dedicated human resource management specialists or expertise impacted the procedures that the employer followed when they dismissed the employee, and
- any other matters that the Fair Work Commission considers relevant.
Discrimination
A lot has been done over the past few decades to stamp out discrimination in the workplace across Australia, but unfortunately, it does still exist. Discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or specific personal characteristics.
Unlawful workplace discrimination occurs when an employer takes adverse action against a person who is an employee because of the following attributes:
- age
- colour
- family or carer’s responsibilities
- marital status
- national extraction or social origin
- physical or mental disability
- political opinion
- pregnancy
- race
- religion
- sex
- sexual orientation
Adverse action can include an action that is unlawful if it is taken for a discriminatory reason. Adverse action taken by an employer includes doing, threatening, or organising any of the following:
- dismissing an employee
- altering an employee’s position to their detriment
- discriminating between employees
- refusing to employ a prospective employee
- discriminating against a prospective employee on the terms and conditions in the offer of employment.
Harassment and bullying
Sadly, allegations involving workplace harassment and bullying are also on the rise. A worker is bullied at work if a person or group of people repeatedly acts unreasonably towards them or a group of workers and the behaviour creates a risk to health and safety. Examples include:
- excluding someone from work-related events
- behaving aggressively
- teasing or practical jokes
- unreasonable work demands.
Recently, controversial Sydney radio announcer Ray Hadley and 2GB radio were sued over allegations of workplace bullying and harassment. Mr. Hadley’s former producer Chris Bowen sued Mr. Hadley and 2GB radio for verbal abuse, bullying, and intimidation. The case was before the District Court of New South Wales, but there has since been an out-of-court settlement between the parties.
Other common workplace disputes occur when an employee alleges that an employer had failed in their duty of care, or failed to meet contractual obligations, particularly regarding hours and remuneration.
If you have concerns that someone you work with, or your employer may have breached workplace laws and regulations, there are many resources available online. In cases that cannot be settled adequately by negotiating directly with the parties involved within the workplace, then it can be wise to seek legal advice from an employment lawyer about the appropriate steps to take to seek resolution.
Ted Neaves is the Principal Lawyer at Shoalhaven Lawyers. Clients benefit from Ted’s practical approach and in-depth understanding of litigation.