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It
is important that you are aware of your rights and obligations
in relation to your employment, particularly when it is
about to begin or end.
What
terms should be placed in your employment contract?
Legislation,
awards or enterprise agreements may provide you with entitlements
and obligations which should be recorded in your contract.
It is better to clearly determine what your conditions of
employment are when you start your employment than to become
involved in a dispute over your conditions when your employment
ends or you are experiencing difficulty in your workplace.
What
are your entitlements under your award or contract?
Your
entitlements will depend upon your personal circumstances.
Sometimes your entitlements can only be determined by reference
to your contract, to legislation and to an award or enterprise
agreement.
What
if you are having difficulty at work?
Most
people do not seek legal advice until after their employment
has been terminated. It is important that if you are having
difficulty in the workplace that you first attempt to resolve
it and, if that is unsuccessful, you should immediately
seek legal advice. The Industrial Relations Commissions
allow applications by employees who fear that their employment
is in danger of being terminated. When such an application
is made, it is common for the difficulty to be resolved
between the employer and employee and for a termination
to be avoided.
What
action can be taken if you are terminated?
If
your employment has been recently terminated, you may be
entitled to bring proceedings before the Industrial Relations
Commissions if the dismissal was unfair. In most cases,
we will be able to tell you if your claim will succeed after
you discuss your circumstances with us. We offer free first
interviews for this type of interview so there may be no
fee for the first interview if you do not have a claim.
When
is a dismissal unfair?
There
are a number of factors which make a dismissal unfair. If
you have been terminated because of your conduct, you should
always receive details of any allegations against you and
should always have an opportunity to put your side of the
story to those allegations. Except in situations involving
very serious misconduct, you should always receive a clear
warning explaining that if you continue with a particular
course of conduct then your employment will be terminated.
If you have been terminated for redundancy, there are a
broad range of factors to consider and we therefore recommend
that you obtain advice on your employer's selection criteria
for redundancy and the level of any redundancy payment.
What
are you entitled to claim for?
You
are entitled to claim for damages. You can also apply to
be reinstated to your old position or to be placed in another
position with your employer.
What
rights do casual or part-time workers have?
In
general, casual workers are not able to make a claim with
the Industrial Relations Commission. However, recent cases
suggest that both part-time workers and casual workers who
have worked regular shifts over a period of time may have
the ability to bring an application for unfair dismissal.
We recommend that you seek advice on your individual circumstances.
What
happens when you lodge a claim?
Once
your claim has been lodged, a conference before a commissioner
will be scheduled within approximately one month. At that
conference, the commissioner will act as a mediator and
attempt to settle the dispute between the parties. If the
matter is unable to be settled at the conference, the commissioner
will refer the matter for a trial. A trial is a formal hearing
where the Industrial Relations Commission can award damages
or, in certain circumstances, order that the employee be
returned to their former position.
When
should you seek legal advice?
If
your employment is terminated, you must act quickly as an
unfair dismissal claim can only be lodged within 21 days
of your termination. If you are seeking advice in relation
to new employment, we recommend that you consult us prior
to signing your contract.
Which
solicitors practise in this area?
Our
solicitors who practise in this area are
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