Don’t be late! These are the risks of filing an unfair dismissal application out of time.

If you are terminated from your employment, you will only have 21 days from the date the dismissal takes effect to file an unfair dismissal of general protections application with the Fair Work Commission.


The Fair Work Commission is notoriously strict with its application filing deadlines and will only extend the time for lodgement in exceptional circumstances.


In the matter of Langtry and Mitolo Group Pty Ltd, the applicant filed his application seven weeks’ out of time. Mr Langtry’s explanation for his late lodgement was that he was unaware of the existence of the unfair dismissal jurisdiction within the Fair Work Commission and it was not until discussing the matter with a family matter that he learned he could make such an application. As we all know, ignorance of the law is no excuse and in Langtry and Mitolo Group Pty Ltd, the application was not allowed to be filed out of time.


The 21 day lodgement period is calculated on calendar days, rather than business days, so if you feel you have been unfairly terminated, act quickly!


Contact the Workplace Relations team at Nevett Ford on (03) 9614 7111 to ensure you are fully aware of your rights and entitlements. 

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The importance of hospitality venues getting proper advice about pay obligations

It is most important that employers make sure they understand what wages they need to pay their employees, including penalty rates and payments for public holidays.

This issue has recently been highlighted with a restaurant chain being obliged to reimburse staff $21,700.00 for underpaying employees for their Christmas day entitlements.

Many underpayments are inadvertent but it is important to ensure that restaurants comply with their minimum obligations under the Australian Workplace laws.

Employees who wish to ensure they comply with their workplace obligations should not hesitate to contact the Workplace Relations department of Nevett Ford Lawyers.

Nevett Ford Lawyers provide advice on all aspects of Employment Law.

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Workers are Employees not Contractors

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd and others [2015] HCA 45 demonstrates that on arrangement where an enterprise engaged the services of cleaners through a labour hire company and represented to the cleaners that they were contractors not employees, is contrary to section 357 of the Fair Work Act 2009 as sham contracting.

Previously, sham contracting was thought to apply only to misrepresentations the employer made to the worker and not to extend to misrepresentations by a third party, which uses the workers’ services, to the workers status as employee.

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Can an employer change an employee's work roster?

Being penalised for unpredictability is not necessarily adverse action.

CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76 demonstrates that it is not unlawful for an employer to change an employee’s work roster where there is unpredictability in the employee maintaining the original roster even where that unpredictability arises from the employee taking carer’s or annual leave.

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Workplace issues and the 7-Eleven scandal

In light of the recent 7-Eleven scandal surrounding the exploitation and underpayment of its workers, the Chairman and Chief Executive Office of 7-Eleven have announced their resignations.

The lesson to be learned by all employers, regardless of the size, scope or structure of their business, is that there are significant financial and non-financial consequences for employers who breach their obligations to employees.

Regardless of their visa or residency status, employees in Australia are entitled to basic rights, such as payment of minimum wages. The minimum wage and working conditions for an employee will depend on their age, position, experience and the area of work in which they practice.

The minimum wage for employees can be found in an applicable modern award, enterprise bargaining agreement or employment contract.

An investigation into the 651 separate 7-Eleven franchises across Australia has found that franchisees were paying their workers, many of whom were on temporary working visas, half the minimum wage.

When an employer breaches their obligations under the relevant instrument, be it an award, agreement or employment contract, its past and present employees have several avenues available to them in order to recover lost wages, including;

• Lodging a dispute application to the Fair Work Commission;
• Filing a Workplace Dispute application with the Fair Work Ombudsman; and
• Taking legal action in either a State or Federal court with jurisdiction.

Such processes are often highly stressful, lengthy and expensive for employers to defend and employers risk significant penalties for breaching their obligations.

It is not only international workers that are vulnerable to exploitation, with the Fair Work Ombudsman receiving almost 600,000 enquiries per year, more than 150,000 of which are complaints regarding underpayments.

If you have received a complaint from an employee in relation to an underpayment, act quickly and repay any monies owed before the matter is escalated to the next level.

Nevett Ford lawyers are specialised in all areas of workplace relations and can advise you on your obligations in relation to payment of entitlements, as well as defending any underpayment complaints and actions.

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Even a small mistake can have big consequences for employers

 

Coffey Projects (Australia) recently learned the hard way that there are serious consequences with providing employees incorrect information in relation to their workplace rights and entitlements.

 

Despite employing a Human Resources manager, Coffey Projects relied on outdated policies that did not reflect amendments to the Fair Work Act 2009 (Cth) and provided an employee with incorrect information about his parental leave entitlements. 

 

The outdated policy incorrectly stated that parental leave was only available to “primary” caregivers. As he believed he was not entitled to parental leave, the employee took a combination of annual leave and unpaid leave in order to care for his newborn twins.

 

When he was due to return to work, he was only offered part-time hours and later made redundant. The employee successfully argued that had he been provided the correct advice, he would have applied for parental leave which guaranteed his right to return to work on a full-time basis. He then would have been entitled to be paid out his entitlements as if he were a full-time rather than a part-time employee. Coffey was order to pay the difference between these amounts being $109,000.

 

The outdated policy was in breach of the National Employment Standards and as a consequence, Coffey was ordered to pay their former employee almost $170,000 consisting of unpaid wages and redundancy pay which he would have received had he been granted parental leave. 

 

Although the Court found the employer did not act recklessly or knowingly, it was still penalised and ordered to pay an additional penalty of $8,800.

 

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