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working overtime questions

Working Overtime? What are your Rights?

By | Workplace Rights and Entitlements

Know Your Rights with Overtime Work

Your employer has asked you to stay back to work a few more additional hours this week – can they do this?

Your employer can request that you work overtime, but only if it is reasonable in the circumstances.

The maximum weekly hours of a full-time employee are 38 hours per week. The maximum number of hours of an employee who is not a full-time employee is the employee’s ordinary number of hours per week, which also must be less than 38 hours.

Overtime is the work that you perform for your employer that is:

  • over your ordinary hours of work (such as over 38 hours);
  • beyond your agreed upon number of hours; and/or
  • outside the spread of ordinary hours. This is the hours in the day that your ordinary hours can be worked.  These are set out in your applicable award (such as between 8:00am and 6:00pm).

To determine whether overtime is reasonable includes the following considerations:

  • if there is a risk to your health and safety;
  • your personal circumstances and family responsibility;
  • the operational needs of your workplace;
  • whether you are entitled to receive compensation such as overtime rates and penalty rates for working overtime;
  • the nature of your role and level of responsibility;
  • how much notice is given to you by your employer; and
  • how much notice you give your employer that you cannot work the overtime (if you refuse).

If an award applies to your employment or an enterprise agreement, this instrument will set out the applicable overtime rates or penalty rates that are to be paid to you and when these payments apply.  Make sure you review the instrument that applies to you to ensure you know the applicable rates of pay.  Even if you have an individual contract of employment and it does not say anything about an award, this does not mean that an award does not apply to you.  So it is a good idea, to check what award may apply to your employment to make sure that you know your minimum entitlements.

You may have an employer that pays you above the minimum rate of pay set out in the applicable award.  However, this does not mean that you are not entitled to receive additional payments for overtime.  There are certain rules for ‘all-inclusive’ rates of pay that your employer must implement.  If your employer has not set out in writing what exactly is included in your rate of pay, then you may be entitled to a separate payment for any overtime worked despite the above award rate of pay paid to you.

If you are not sure about your entitlements, do not hesitate to contact Anderson Gray, we are lawyers for employees and are here to help you.

sexual harassment rights obligations image

Sexual Harassment – Your Legal Rights and Obligations

By | Sexual Harassment

What are your rights and obligations are under the law?

Sexual harassment is against the law.  This blog discusses sexual harassment in the workplace and what your rights and responsibilities as an employee are.

Sexual harassment can be committed by your employer, a colleague, contractor or other person who is in a working relationship with the person who has been sexually harassed.

What is sexual harassment?

Legislation such as the Anti-Discrimination Act 1991 (a Queensland Act) and the Sex Discrimination Act 1984 (a Commonwealth Act) set out what sexual harassment is.

Sexual harassment is defined as conduct that:

  • is of a sexual nature;
  • is unwelcome or unsolicited; and
  • the person engaging in the conduct did so with the intention of offending, humiliating or intimidating the person or a reasonable person would anticipate in the circumstances that the person being harassed would be offended, humiliated or intimidated.

Your employer’s obligations

As an employee, you have a right to a workplace that is free of discrimination, sexual harassment and vilification.  Your employer is actually responsible and has a duty of care to ensure your health and wellbeing at work.

Steps taken to achieve this by your employer may be the implementation and enforcement of policies on discrimination and harassment, providing training and setting out a clear complaint process, so employees know what to do if they have an issue.

If an employee is sexually harassed in the workplace, your employer can be found vicariously liable.  This means they can be found accountable for the actions of the person who engaged in the sexually harassing behaviour.

However, it is not only your employer who is responsible.  You also have responsibilities as an employee.

Employee responsibilities 

As an employee, you have a responsibility to not engage in discriminatory or sexually harassing conduct and to comply with your employer’s workplace policies that cover this type of conduct.  In addition, you ought not encourage or request a person to engage in this type of conduct as this is also inappropriate behaviour and will have consequences.

If you engage in sexually harassing behaviour, then you may face disciplinary action by your employer which could include being dismissed from your employment.  Further, if a complaint is made to the Anti-Discrimination Commission or Human Rights Commission you could be found liable and face penalties.  This may mean that you may have to pay damages such as monetary compensation to the person you harassed (or encouraged to be harassed).

Sexual harassment is serious.  If you are being harassed at work or know someone who is and you are not sure of your options, please contact Anderson Gray today.  We are here to help you. Anderson Gray are lawyers for employees.

sexual harrassment

What Sexual Harassment Is

By | Sexual Harassment

What sexual harassment is – including the verbal, visual, and physical conduct that could be considered harassment

Sexual harassment is the topic that has been making global headlines lately.  Scandal has hit Hollywood with some big hitters in the industry facing sexual harassment allegations and Australia’s own acting industry coming under siege with Aussie acting icons facing allegations. But despite the awareness that this behaviour is not okay, individuals are still being subjected to sexually harassing behaviour at work.

Sexual harassment can have a significant and detrimental effect on a workplace and a person’s well-being.  Every person has the right to be safe and work within a harassment free environment.

State and Commonwealth laws, through legislation such as the Anti-Discrimination Act 1991 (Qld) and the Sex Discrimination Act 1984 (Cth), provide that sexual harassment and discrimination on the basis of sex is unlawful.

So what is sexual harassment?

Sexual harassment is conduct of a sexual nature that is unwelcome or unsolicited and that a reasonable person would anticipate in the circumstances that the person being harassed would be offended, humiliated or intimidated.

Sexual harassment does not have to be deliberate or repeated to be illegal. Sexual harassment can be verbal, physical or visual.  Sexual harassment like sexual assault or indecent exposure is a criminal offence.  Other behaviour that is sexual harassment can be more subtle.

So what are the types of acts that may be considered sexual harassment?

The following are examples of sexual harassment:

  • displaying pornographic material – posters, photos, website, emails or videos in the workplace;
  • indecent or explicit comments about your appearance;
  • gestures that are sexual, staring at a person or whistling;
  • touching, groping, pinching or hugging a person, trying to take a colleague’s clothes off – such as unzipping a uniform;
  • exposing a person’s genitals;
  • banter that is insulting and/or demeaning;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • sending sexually explicit text messages, emails or phone calls to a person; and
  • being subjected to a “boys club” atmosphere where you have to hear sexual comments made to other employees in the workplace.

Sexual harassment at work is unlawful. Your employer has an obligation to ensure you are not sexually harassed at work, such as implementing policies and procedures to create a harassment free workplace and processes on how your employer deals with any complaints.  Not only the person who sexually harasses you, but your employer can also be held responsible if you are sexually harassed at work.

If you are being sexually harassed at work, call Anderson Gray now.  We are here to help you.

know how much you should be paid

Are you a Trainee or Apprentice? Do you Know What you Should be Paid?

By | Workplace Rights and Entitlements

Knowing How Much You Should Be Paid

If you are a trainee or apprentice you ought to check that your employer is paying you the correct rate of pay.  If a modern award applies to you, then this workplace instrument covers your employment and sets out the minimum wages that apply to you (unless an enterprise agreement applies to you).

In some states, employers have been paying wages according to a state instrument.  For example, in Queensland, many employers would pay their apprentices with respect to the Order of Apprentices’ and Trainees’ Wages and Conditions (Excluding Certain Queensland Government Entities) 2003.  Queensland Awards and Orders that were Notional Agreement Preserving State Awards (NAPSA), such as the above Order, allowed for State Awards created prior to 27 March 2006, to continue to operate post the introduction of the modern awards system by the Federal Government in 2009.

In 2017, this view changed when the Fair Work Commission found that these instruments are no longer in force and have not continued to operate post 1 January 2014.

In light of this, your employer may not be paying you correctly.  If you think this may apply to you, check your applicable modern award at www.fwc.gov.au to confirm the correct rate of pay.

If you are not being paid correctly and are receiving a lesser amount then you are entitled to you may have an unpaid wages claim.  Did you know that you have six years in which to make an unpaid wage claim?  This means that you can make a claim for unpaid wages that goes back up to six years.

If you need any assistance, do not hesitate to contact Anderson Gray lawyers here in Melbourne, Sydney, and Brisbane – we are here to help.

taking annual leave

Do you Know your Annual Leave Rights?

By | Workplace Rights and Entitlements

Understanding your Rights to Annual Leave

Most modern awards now contain additional annual leave provisions that include the ability to:

  • cash out annual leave;
  • take annual leave in advance;
  • manage excessive annual leave balances; and
  • make payment for annual leave during the period of leave.

You are most likely aware that the Fair Work Commission varied a number of modern awards, but do you know all the changes and how they may apply to you?

Cashing out annual leave

You and your employer can make an agreement in writing to cash out your annual leave.  Each time an employee wishes to cash out their leave, a new agreement must be made between you and your employer.  The agreement must state the amount of leave to be cashed out and the amount of the payment to be made to you, including the date the payment is made.

It is important to note that the payment made to you must not be less than the payment you would have received if you had actually taken the period of leave.

However, there are some rules in relation to how much leave you are able to cash out.  The agreement to cash out annual leave must not leave you with an accrued annual leave entitlement of less than four weeks, and you are not permitted to cash out more than two weeks of leave in a 12 month period.

Taking annual leave in advance

You can take a period of paid annual leave before you have accrued an entitlement to take the leave if:

  • your award says you are able to; and
  • your employer agrees in writing to the advance payment.

The agreement between you and your employer must state the amount of the leave to be taken in advance and the date on which the leave is to start.

So you are aware, if your employment ends prior to you accruing the amount of the entitlement that you have taken in advance, your employer has the right to deduct any money owing from your final pay.

Managing excessive annual leave balances

If you have accrued an ‘excessive’ leave balance of at least eight weeks, you and your employer can reach an agreement to reduce your excessive leave balance.

If you and your employer cannot reach an agreement, then you can make a request in writing that you take a period of paid annual leave. However, you must have had your excessive leave balance for at least six months and your employer must not have issued a direction that would result in your excessive leave accrual being eliminated.  Any request must not result in your accrued annual leave balance being less than six weeks.

Your employer can also direct you to take annual leave in writing.

Anderson Gray lawyers are lawyers for employees in Sydney, Australia.  We are here to help you. Contact us today if you have any questions about your workplace entitlements.

unfair dismissal reasons

What is a Fair Reason for Dismissal?

By | Unfair Dismissal

Your boss has just fired you – was the reason for your employment being terminated by your employer fair?

An employer cannot dismiss an employee without a valid reason.  The reason must be sound and well founded, not fickle, fanciful or prejudiced.

If the reason your employer dismissed you is valid and your employer undertook a fair and reasonable process in managing your dismissal, by (for example) notifying you of the reason for your dismissal and giving you an opportunity to respond to the reason, then this may amount to your dismissal being fair.  However, no case should be determined without considering all of the facts and circumstances relating to the matter.  If you would like to discuss your situation with an unfair dismissal expert, contact Anderson Gray Lawyers today and tell us your story.  We are here to help.

A valid reason for dismissal may relate to an employee’s conduct, capacity, performance or redundancy.

Conduct

Conduct of an employee that may amount to misconduct, is behaviour of an employee that is not appropriate at the workplace or in breach of the employee’s contract of employment.  The following are a few examples of what may constitute misconduct:

  • breaching a company policy;
  • engaging in an activity that poses a serious risk to the health and safety of a person or to the reputation or viability of the business;
  • being dishonest;
  • having a poor attitude and engaging in poor behaviour towards your employer and/or other employees whilst at work;
  • failure to follow a lawful and reasonable direction given by your employer;
  • being intoxicated at work;
  • stealing; or
  • fighting or assaulting another person at work.

However, each individual circumstance is different.  It depends on the nature of the conduct in the particular circumstances and the employee’s history as to whether the conduct in question is a valid reason to terminate the employee’s employment.

Just because you have engaged in the above conduct, does not always mean that dismissal was the right answer or that the dismissal was fair.

Capacity

Capacity refers to the employee’s ability to do the job required by their employer and the work they were employed to do, that is, the ‘inherent requirements’ of their position of employment.

If you are unable to perform the inherent requirements of your role, then that may be a valid reason to terminate your employment.

Incapacity may be due to a medical reason and the medical reason means that you are unable to perform the requirements of your role. However, the Fair Work Act does provide protections for employees.  Your employer cannot dismiss you if you have been temporarily absent from work due to an illness or injury for up to a three month period (or up to three months in total over a 12 month period) or if you are absent on paid personal/carer’s leave for the duration of your absence from work.

This area of the law is complex.  If you have been dismissed for incapacity, please contact Anderson Gray Lawyers to discuss your situation and if you may have the grounds to lodge a claim.

Performance

An employee may be dismissed from their job for poor performance.  Generally, poor performance is when an employee has not been performing their role to a satisfactory standard.

If you have been under-performing in your role, this may be a valid reason for dismissal.  Nevertheless, you ought to have been warned about your poor performance by your employer and be notified of the need for you to improve your performance prior to your dismissal.  Generally, when determining an application for unfair dismissal, the Fair Work Commission likes to see that you have been given a period of time in which to improve your performance.  If you have not been warned that your performance at work is sub-standard and given a chance to improve your performance, then this may not be a valid or fair reason for terminating your employment.

Redundancy

If your position of employment was made redundant, this will be a fair reason if the redundancy was ‘genuine’.

The Fair Work Act provides that a redundancy is a genuine redundancy if:

  • your employer no longer requires your job to be performed by anyone due to operational changes in your workplace;
  • your employer consulted with you about the proposed redundancy. That is, discussed with you the proposed change (i.e. making your position of employment redundant) and if there were any alternative options or ways to minimise the adverse effect of this change on you; and
  • it was not possible to re-deploy you into another job in the business or an associated entity of your employer.

The Process

Despite the reason for dismissal, it is important to note that the process adopted by your employer in managing your employment must also be fair.  That is, you must be notified of the reason for your dismissal, given an opportunity to respond, permitted a support person (if you request one) to assist you at any meetings relating to your dismissal and warned about your poor performance (if your dismissal relates to your performance).

Anderson Gray Lawyers are unfair dismissal experts and we are here to help.  If you think that the reason you were dismissed was not fair – do not delay, contact us immediately!  Remember that you have 21 days in which to lodge an application for unfair dismissal with the Fair Work Commission from the date your dismissal took effect.

who is protected from unfair dismissal

Who is Protected from Unfair Dismissal?

By | Unfair Dismissal

Persons Protected from Unfair Dismissal

If you are an employee, you are protected from unfair dismissal if:

  • your employer is an employer who is covered by the Fair Work Act; and
  • you meet the eligibility requirements set out in the Fair Work Act.

Is my employer required to comply with the Fair Work Act?

If an employer is a ‘National System Employer’, then they are required to comply with the rules set out in the Fair Work Act.  A National System Employer includes:

  • private enterprise employers in New South Wales, Queensland and South Australia;
  • private enterprise and local government employers in Tasmania;
  • the Commonwealth and Commonwealth authorities;
  • all employers in Victoria (with limited exceptions in relation to some State public sector employees), the Northern Territory and the Australian Capital Territory;
  • all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands;
  • the employers of waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce; and
  • employers that are constitutional corporations in Western Australia (including Pty Ltd companies)—this may include some local governments and authorities.

The following employers are not National System Employers?

  • Local Government employers in Queensland, New South Wales and South Australia;
  • State government employers in New South Wales, Queensland, Western Australia, South Australia and Tasmania;
  • Employers that are individuals, sole trader, partnerships and trusts in Western Australia; and
  • Employers of employees in the public sector in Victoria who hold high managerial positions.

What are the eligibility requirements?

An employee can make an application for unfair dismissal if they meet the following criteria:

  • you have completed the minimum period of employment. The minimum period is either 6 months if you work for an employer who employs 15 or more employees or 12 months if you work for an employer who has less than 15 employees. The number of employees is calculated by a simple headcount of all employees, including casual employees who are employed on a regular and systematic basis at the time of dismissal; and
  • you are employed pursuant to an industrial instrument such as an Award or enterprise bargaining agreement; or

If you are a not employed pursuant to an industrial instrument and you earn more than the high income threshold then the Fair Work Commission will not have jurisdiction to hear a complaint for unfair dismissal – although, there may be other remedies available to you.

However, if you earn more than the high income threshold but a modern award or enterprise agreement covers your employment you can still be eligible. Contact Anderson Gray Lawyers to find out more if you think this applies to you.

Anderson Gray Lawyers are lawyers for employees and are unfair dismissal experts.  If you feel you have been unfairly dismissed from your employment, don’t hesitate to contact us today! We have offices in Brisbane, Sydney, and Melbourne.

unfair dismissal compensation

Can You Get Compensation for Unfair Dismissal?

By | Unfair Dismissal

Unfair Dismissal Compensation

The Fair Work Commission is the workplace relations tribunal that will consider your application for unfair dismissal. There are a number of remedies available to you if the Commission determines that you have been unfairly dismissed. These include:

  • reinstating you back into the job you were dismissed from; and/or
  • compensation (this is capped at 26 weeks pay).

The Commission will seek to have your job reinstated (if practical) or into a new position that is similar in hours, responsibilities and pay. If this occurs, you will also be entitled to back pay. The Commission may also make an order that your continuity of employment will be maintained and that there will be no break in your service or accrual of entitlements.

However, if it is not practical or reasonable to reinstate you (if a working relationship is not going to work), then alternatively compensation may be ordered as a remedy. Compensation is capped at 26 weeks pay and the total amount of compensation able to be awarded is half of the high income threshold amount that applies immediately before the dismissal.

Any payments that:

  • are made to you by your employer, such as: notice payments; or
  • anything you may earn after you were dismissed by your employer;
  • will be taken into account by the Commission when it calculates the amount of compensation to be awarded.

You will not be awarded compensation for shock, distress or humiliation.

Conciliation Conferences

Did you know that you can also go to Conciliation?

Conciliation is a voluntary informal process to resolving disputes of unfair dismissal.

You and your employer can agree to a Conciliation and try and resolve the dispute in relation to your dismissal at the Conciliation. This means that if you can settle at Conciliation you do not need to go to a formal conference or hearing.

A Conciliation is private and you and your employer and the Conciliator will discuss the dispute and whether you and your employer may agree to a settlement. Settlements between you and your employer may include the following:

  • reinstatement of your job;
  • monetary settlement (compensation);
  • an apology from your employer;
  • a written statement of service from your employer;
  • payment of entitlements that have been unpaid and are owed to you by your employer (such as notice or leave payments); and/or
  • an agreement that you and your employer will not disparage (belittle or bad mouth) each other.

If you cannot reach a settlement then you can proceed to a formal hearing and the Commission will determine if you have been unfairly dismissed and if you will get your job back and/or any compensation.

Anderson Gray Lawyers are unfair dismissal experts in Brisbane, Sydney and Melbourne. If you need any further information about unfair dismissal and the options available to you, don’t hesitate to contact us today!

Managing your Employer

By | Unfair Dismissal

How and When to Manage Your Employer

Managing employees is a topic that is regularly discussed and debated by employers, lawyers and academics.

When you look for information about workplace laws and rights you find almost every text and article written on the topic of the employee and employer relationship relates to the rights and practices of employers and not employees.  The literature predominantly deals with managing employees in various circumstances.  An explanation for the reason for this concentration of information is that good performing, happy employees don’t need to be managed.

Very little information is available for employees to gain insight into their right (or capacity) to manage their employer – in good or bad times.

In fact, many an employer has said that managing staff is like ‘managing kids in a kindergarten’ – difficult, chaotic and with little regard to rules and procedure.  Perhaps this attitude is where a lot of employers go wrong.

Many times we have heard both the employer and employee complain and lament that they have “no rights” when it comes to the other, and so “what’s the point of doing anything?

It is our view at Anderson Gray Lawyers that employees should be given information to help them manage their employer, as in doing so, we believe that it will lead to improved job satisfaction, productivity increases and a fairer and more robust working relationship.  The premise being that a healthy working relationship, where both parties are polite and courteous in debating the matters affecting them, is best for everyone involved.

First and foremost, a worker should however focus on doing their very best at work and at the same time have an expectation of being treated fairly.

Putting the job at hand to one-side, managing an employer may be broken into three parts.

  • Firstly, accurately knowing your rights is essential.
  • Secondly, choosing the right communication medium and communication path is a strategic consideration, and requires careful thought having regard to the context of the employee’s situation.
  • Thirdly, because an employee’s ongoing employment is very rarely guaranteed, one eye should be kept on the potential claims available to an employee either during or post-employment (should the employer make the decision to dismiss the worker), and steps should be taken during the employment to solidify those claims.

So what is ‘employer’ management?

Employer management is being proactive in achieving a courteous and fair outcome for the employee during periods of both high performance and non-performance.  Put another way, ‘employer management’ is essentially an employee adopting a proactive approach to ensuring that they are treated properly and fairly in the workplace.

At Anderson Gray, we believe that being proactive in managing your relationship with your employer (or manager) is a skill that all employees should learn and develop.

What are the key steps to managing my employer?

As stated above, knowing your rights is a key element to managing your employer.  Making a demand on your employer that is wrong in either fact or law can be fatal to the employment relationship.  For example, knowing which award applies to your work and identifying your minimum rate of pay, is essential to raising a concern about an alleged underpayment of wages.

There are many sources of information about employee entitlements.  For example:

  • Government supplied services such as the Fair Work Ombudsman produce a large volume of information about employee entitlements;
  • Trade unions;
  • The internet – although care needs to be taken with the information available on the internet;
  • Professional services such as lawyers and industrial advocates.

At Anderson Gray, we publish information on our website and Facebook through blogs, articles and information sheets, which are all designed to give the factual, accurate information about employee rights.

When is it appropriate to manage my employer?

In my view, each engagement with the employer (or a more senior management figure) presents a unique opportunity to manage your employer.  Each such engagement presents an employee with an opportunity to display value and build rapport.  Each engagement enables an employee to show respect and to be respected for the job they are doing. It also creates a moment whereby an employee can question and/or clarify any concerns they have about their work or the workplace generally.

Of course, employees need to be mindful of the timing, location and forum in which to raise questions or seek clarification about work related matters.  Raising a personal conflict with a manager in a weekly team meeting (for example), is not good timing, nor a good forum in which to raise such an issue.  And the same rule applies to employers and managers.

As an employee, you have the right to be treated fairly in the workplace.  If an employee (acting reasonably) believes that there are instances where they are not being treated fairly, then raising the unfair treatment with the employer in a timely, polite and respectful manner is appropriate.

It is also recommended practice for an employee to record details of ‘management type’ conversations.  Our view at Anderson Gray is that employees should be proactive in creating records about work related matters.  It is often the case that employees wait for confirmation from their employer as to the outcome or management of a particular matter.  But why wait?  In our view, it is appropriate for the employee (for example) to send a brief e-mail summarising a conversation or outcome to their manager or employer, ensuring that the employees version of events is recorded.

And here’s a nod to the last point – keeping an eye on potential claims.  We are often confronted with the situation where the employee is required to try and remember facts and circumstances without the assistance of records or notes.  Either that, or the only information available is the information recorded by the relevant manager or employer.  This immediately makes the task of pursuing a genuine claim more difficult, because the ‘written’ evidence is not favourable and is not an accurate account of the events.

In very brief summary, managing your employer can take various forms and can be as sophisticated as you would like it to be.  Here are some tips for the employee:

  • As an employee, you have the right to be treated fairly in the workplace. If an employee (acting reasonably) believes that there are instances where they are not being treated fairly, then raising the unfair treatment with the employer in a timely, polite and respectful manner is appropriate.
  • Making accurate, contemporaneous notes (with sufficient detail).
  • Know your rights as an employee and bring your employer’s attention to those matters when there has been a contravention of those rights.

Thanks for taking the time to read this article.

The Anderson Gray Brisbane Team.

Don’t Suffer in Silence! You CAN Ask Questions about your Entitlements

By | Unfair Dismissal, Workplace Rights and Entitlements

Enquiring of your Entitlements

The Fair Work Act provides that an employee is entitled to make a complaint or enquiry about their employment. It also provides that an employee should not be treated adversely because they made a complaint or enquiry about their employment.

A recent decision handed down by the Federal Circuit Court has identified that the court is willing to impose hefty penalties on employers (and individual directors) for treating an employee adversely after the employee made a complaint about his wages. In the case of Fair Work Ombudsman -v- Windaroo Medical Surgery Pty Ltd & Ors [2016] FCCA2505 (28 September 2016), Judge Jarrett penalised the Surgery and two of its directors because:

1. they threatened to stop paying a Doctor who had complained to the FWO about not being paid;

2. they did stop paying him until the Doctor resigned a few months later.

The Surgery and its Directors were collectively penalised over $50,000 for their involvement in the poor treatment of their employed Doctor.

The message here is that, as an employee, you have the right to complain to your employer about your workplace entitlements. If you suffer a loss because of that complaint, then the employer will be taken to have breached certain provisions of the Fair Work Act and you are likely to be entitled to compensation.

If you think that this has happened to you, then please give us a call.

AGL Team

Lawyers for Employees – specialising in unfair dismissal claims


 

How can a hat get you fired?

By | Unfair Dismissal

A mine worker was recently successful in receiving $28,000 in unfair dismissal compensation.  There were a few other circumstances but the core of the reason or his dismissal related to comments he made about his supervisor’s hat on Facebook.

The Fair Work Commission found the comments were misconduct but held dismissal was unfair because management failed to disclose that it had relied on a secret report into broader bullying allegations.

The maintenance fitter at CBH Resources’ Rasp Mine in Broken Hill had been one of several employees who had liked and responded to a Facebook photo of a colleague wearing a cap with an exaggerated peak.

His comments made from his iPhone at home included “I’ve seen f–kwits with bigger peaks on their hats” and were allegedly directed at his supervisor who wore similar-sized caps.

When the supervisor saw the posts and complained, CBH Resources fired the fitter for belittling and ridiculing a fellow employee who had been left “broken” and considering quitting.  The fitter claimed his comments were not directed at the supervisor but a group of New Zealand shearers who had worked on his farm and dressed like “rappers” with big peaks on their hats.

But Commissioner Peter Hampton found that explanation was not convincing and held that, given the notoriety of the hat in the workplace, the fitter “at best” knew others would get the reference.

So there you have it, just because there might be a shared joke around the workplace doesn’t mean you should share comments about it on Facebook.

In this case the worker got a good result but it could easily have been otherwise.

 

Original story published on AFR.com.au,12 October 2016. “Mine worker unfairly fired for slagging boss’ cap on facebook”

Bullying young people in the workplace all too common

By | Workplace Rights and Entitlements

October is safe work month.

I thought it was an opportune time to blog about young people at work. Young adults – aged between 15 and 25 years old – make up a significant proportion of today’s, modern work force. Quite alarmingly, a recent report (referenced in today’s Sydney Morning Herald) has suggested that 50 per cent of young adult workers had experienced bullying and harassment at work.

A number of young adults surveyed indicated that bullying and harassment (including sexual harassment) was so common place, that many instances were treated by employers as a ‘non-issue’.

Whilst the legislators have progressed the law to the point of making bullying and harassment unlawful, it seems that not enough is being done to re-enforce the message to employers that ‘bullying and harassment is unlawful’. It is also un-safe and has the potential to seriously affect a young adults’ capacity to remain engaged in meaningful employment.

Importantly for young adults at work, you have the right to complain to your manager or your local workplace health and safety officer about legitimate unsafe work practices, including instances of bullying and harassment. The aim of any such complaint should be to try to resolve your concerns in a meaningful and respectful way.

And if that doesn’t work, we’re always here to help you in any way we can.

The AGL Team

Lawyers for employees – specialising in unfair dismissal


Photo via Visualhunt.com

Facing Change in your Workplace

By | Unfair Dismissal

Proactively Dealing with Change

You must welcome change as the rule, but not as your ruler” (Denis Waitley)

Change is constant and at many times during our working lives, we will need to change the way we do, think and act.  There’s nothing wrong with that – and we should accept it and move on.

What happens though if the change is significant?  That is, what if the change involves not only a change of duties, but perhaps a change of role, remuneration or hours of work?

In every Award across Australia, there are provisions relating to how ‘significant’ change ought to be managed.  Our Awards say that the cornerstone of introducing change in the workplace is consultation.

And this makes sense.  Sitting down with someone, explaining what the issues are and why the change is important would, in most cases, go a long way to removing the anxiety associated with change.

But is that enough?  Asking for input from employees makes sense also.  An employee is at the ‘coal face’.  Employees know what needs to be done, how to do it and might have a solution that is better than the one being introduced by the employer.

The law is no exception and a recent article I read highlighted the potential effects of change.  The article stated that recently in the US, a law firm introduced a robot to undertake certain work and that robot replaced 50 employees in one part of its business.

Whatever happens, the law imposes an obligation on an employer to ‘consult’ with employees if they want to introduce changes related to matters such as:

  • the composition, operation or size of the employer’s workforce or in the skills required;
  • the elimination or diminution of job opportunities, promotion opportunities or job tenure;
  • the alteration of hours of work;
  • the need for retraining or transfer of employees to other work or locations;
  • and the restructuring of jobs.

Managing change is going to become an even more important skill that both employers and employees will increasingly need to understand and manage.

If you are facing an issue at work, get in touch with our Melbourne unfair dismissal lawyers.

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The Right Pay Dilemma

By | Unfair Dismissal, Unpaid Wages, Workplace Rights and Entitlements

Getting Paid the Right Amount

Being paid the right amount for hard work is an employee’s absolute right.  Incorrect or unpaid wages can seriously impact the working relationship between employee and employer.

The complex and often overlapping maze of awards, enterprise agreements and employment contracts often over complicates a basic and fundamental employee entitlement.  This maze of contractual terms often has the effect of confusing entitlements relating to overtime, penalty rates, time off in lieu and other employee entitlements.

Unfortunately, and perhaps because the system is complex, employers happen to apply the wrong minimum rate of pay for work performed.  Sometimes the employee is at fault, sometimes the adviser also gets it wrong.  Either way, ignorance is no excuse.

A recent case in the Federal Circuit Court has shown that even ‘expert’ advisers can get it wrong.  In this case, Ezy Accounting 123 Pty Ltd was pursued by the Fair Work Ombudsman for providing the employer with the wrong advice.

Whilst this is a potentially ground-breaking case in terms of extending the persons responsible for getting it wrong, it doesn’t change the fact that an employee should be paid the right rate for putting in a hard day’s work.  Unpaid wages are a genuine problem in businesses across Australia.

The good news is that the process for trying to recover your unpaid wages is fairly straightforward.  Often it will involve making a demand and then (if the matter is not resolved) seeking help from either the Fair Work Ombudsman or the relevant Court or Commission.

At Anderson Gray, we’d love help out anyone who’s been paid the wrong amount – because employees deserve the right pay for hard work done. Get in touch with our Melbourne unfair dismissal lawyers.

Bullying – have you been affected?

By | Bullying & Harassment, Workplace Rights and Entitlements

Somewhat disappointingly, a study has found that more than one in five persons are bullied at work.  Further, one in three people are affected by workplace bullying.

What is bullying?

Well, at law, a person is ‘bullied at work’ if an individual (or group of people) repeatedly behaves unreasonably towards a person (or a group of persons which the worker is a member) and that behaviour creates a risk to the person’s health and safety.

Quite often, managers and supervisors try to ‘lead’ a group of individuals.  However, because they don’t have the proper skills, they are often unsuccessful at ‘leading’ and instead act in a manner that may be described as ‘bullying’.  This isn’t necessarily the manager or supervisors fault, it’s just that they don’t know how to properly manage their co-workers.  It is easy to say fault then rests with the employer (and may be that is right), but often it’s the lack of attention to managerial and supervisory training and education by all people involved that is the real problem.

I am regularly contacted by people who have been bullied and/or harassed at work.

The impact (that I see) is that bullying has a real and often debilitating impact on an individual.

Further, it creates an unhappy and unproductive workplace, and this is where I don’t get the lack of investment by employers in developing and nurturing good managerial and supervisory practices. It ultimately impacts on profit.

Raising awareness of bullying and harassment is important and hence the reason for this blog.  And perhaps our education should start a little earlier than the workplace.

I recently read an article whereby a 12-year old boy in America committed suicide in response to alleged bullying at school.  He did it to “stop the pain”.

Closer to home, a recent ABC poll uncovered that 86% of school children have experienced bullying at school.

We are doing our best to try and prevent bullying occurring at the workplace.

If you believe you have been bullied at work, then  please contact us.  We might be able to help you out.

 

who is protected from unfair dismissal

We’re employees…not children!

By | Workplace Rights and Entitlements

I have heard it said by professional advisors that ‘managing employees’ is akin to ‘supervising children’.

As a general employer attitude, this is obviously wrong on many fronts. Wrong, because it undermines the belief that for most of the time on most days, employees across Australia are doing the right thing.

Nearly all employees require little management, they are autonomous and they are hard working.

If the advisor’s attitude is to manage employees like ‘children’, then it is little wonder that some employer’s (who rely on that advice) approach management decisions from completely the wrong angle.

Recently, the Fair Work Ombudsman commenced a Federal Circuit Court claim against an employer’s third party advisor. It alleges that the third party advisor was complicit in the employer’s breach of the Fair Work Act.

Perhaps this type of claim by the FWO may seek to remedy the actions of employer’s who (on advice) act to belittle their employees.

We’re doing our best to change the attitude …

The silver lining….

By | Workplace Rights and Entitlements

Whatever happens, it’s the consequences of the dismissal from work that causes me the most concern. In my experience, rarely is any thought given (by either side of the equation) to the personal circumstances of the dismissed person. Only after it happens, and the reality of a situation sinks in, does the individual start to come to grips with the mountain of problems they will face.

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Helping Employees….it’s what we’re about!

By | Unfair Dismissal, Workplace Rights and Entitlements

Getting Help for Unfair Dismissal

Being told you don’t have a job, regardless of your status in the world, is always a difficult moment.  I know this, because in a legal career expanding some 16 years, I’ve seen the hurt and damage associated with the dismissal of many persons.

The initial reaction is largely the same – bitter disappointment and anger.  Sometimes, the employee is at fault and shouldn’t have done what they did.  Similarly, there are unscrupulous employers who simply do the wrong thing.

The law is designed to protect the individual from the unscrupulous employer.

Helping an employee out in times of trouble is our business.

And here’s where we want to helpout.

Helping an employee out in times of trouble is our business.  Whether that is by way of making a demand on your employer, commencing proceedings or simply pointing you in the right direction – for us, it’s all about helping out.

You should expect from every advisor that they go about their business in a cost-effective, efficient and diligent manner. At Anderson Gray Lawyers, it’s what we strive to do every day.

And, we know our business doesn’t stop with you.  We want to be the law firm that you are happy to refer to your network of friends, if ever any of them find themselves in trouble at work. You can contact our Sydney branch, or search for us in a city near you.