An unfair dismissal claim is a claim that your dismissal from employment was harsh, unjust or unreasonable, and not consistent with the Small Business Fair Dismissal Code (if applicable), and not a case of genuine redundancy.
If you have been dismissed from your job and you believe it was unfair, you may have grounds to make an unfair dismissal claim at the Fair Work Commission (FWC). If eligible, you have 21 days from the date your dismissal took effect to file your claim.
More information including information relevant to small businesses, minimum employment periods and how to make an unfair dismissal claim can be found in our Unfair Dismissal fact sheet.
Underpayment of wages
Some of the most common calls we take relate to underpayment. This might be underpayment of wages, superannuation or other entitlements. It might also be underpayments due to unpaid trial work or sham contracting.
There are three ways to recover your lost wages.
- Send your employer a letter of demand. Stipulate the amount owed and a deadline by which to pay it.
- Seek assistance from the Fair Work Ombudsman.
- Pursue a claim under $20k through the Small Claims Procedure. You have six years from when the underpayments began to do this. Find out more in JobWatch’s Small Claims Kit. Claims over $20k have a different procedure – call us for more info.
More information on unpaid trial work, superannuation, and underpayments can be found in our Fact Sheets.
General Protections Dispute (Termination and Non-Termination)
Your employer must not take unlawful ‘adverse action’ against you (for example, reduce your hours or pay, treat you unfairly in any other way, or terminate your employment) because or partly because of one or more of the following reasons:
- your race, colour, sex, sexual preference, age, disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- you have taken a temporary absence from work due to illness or injury in accordance with the Act’s regulations;
- you have a workplace right;
- you have exercised or not exercised a workplace right;
- you propose to or propose not to exercise a workplace right;
- to prevent you from exercising a workplace right;
- trade union membership or non-membership; or
- you engaged in industrial activity
If you have been terminated, you have 21 days from the date your dismissal took effect to file your General Protections Dispute – Termination claim with the Fair Work Commission. For more information about how to apply for a General Protections Dispute – Termination claim, download our General Protections Dispute – Termination fact sheet.
If you have not been terminated but have experienced adverse action in other ways, you can file for a General Protections Dispute – Non-Termination claim. You have 6 years to do this. Find out more in our General Protections Dispute – Non-Termination fact sheet.
Discrimination
Employees (including independent contractors) are protected from discrimination on the basis of protected attributes at all stages of employment, including:
- recruitment, including how positions are advertised and how interviews are conducted;
- being offered unfair terms and conditions of employment;
- being denied training opportunities, promotion, transfers, performance pay or other employment-related benefits; and/or
- being unlawfully dismissed or demoted.
Protected attributes under the Fair Work Act 2009 include race, colour, sex, sexual orientation, age, disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction and social origin.
If you have been discriminated against because of a protected attribute, you can choose to make either an unfair dismissal, discrimination complaint or a General Protections Dispute claim.
More information on your options to address discrimination in the workplace can be found in our fact sheets on Age Discrimination, Carer, Parent and Family Discrimination, Disability Discrimination, Race Discrimination and Sex Discrimination.
Sexual harassment and assault
Sexual harassment and assault is against the law. You can take action if you have been sexually harassed or assaulted at work. Generally, sexual harassment is unwelcome sexual behaviour and is against the law if it would make a reasonable person feel offended, humiliated or intimidated. Sexual harassment can be physical, verbal or written.
If you think that you are being sexually harassed at work you don’t have to put up with it. The steps you take will depend on your work environment and how comfortable you feel speaking up. This could include making a complaint to your manager or HR department, reporting to police, applying for an Intervention Order, making a complaint to an anti-discrimination or human rights body, or applying to the Fair Work Commission for a Stop Sexual Harassment Order.
More information on your options to address workplace sexual harassment and assault can be found in our Sexual Harassment fact sheet.
Workplace bullying
Bullying should not be ignored if it is occurring in your workplace. It creates an unsafe working environment and it is unlawful.
Workplace bullying has been characterised by WorkSafe as ‘persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety’. Under the Fair Work Act 2009 (Cth) workplace bullying occurs when ‘an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers and the behaviour creates a risk to health and safety’. However, reasonable management action conducted in a reasonable manner does not constitute workplace bullying.
More information on your options to address workplace bullying can be found in our Workplace Bullying fact sheet.
Redundancy
Redundancy usually occurs when the job you have been doing is no longer required to be done by anyone. Effectively, to be a genuine redundancy, your job must cease to exist.
Your job is made up of many things including, for example, your job title, your pay, your hours, where your job is located and your duties. Consider all of these factors together when you ask yourself whether your job has truly ceased to exist.
More detailed information including redundancy entitlements, notice of termination, and more can be found in our Redundancy fact sheet.
Unfortunately, disability discrimination sometimes still happens. It may be that a person with disability is treated less favourably than people without disability. It may also be that people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with disability.
What to do if you think you have been discriminated against
If you think you have been harassed or discriminated against because of your disability (or the disability of someone you know), the first step is to try to resolve the issue with the other person/s.
If the discrimination or harassment is happening in the workplace, discuss the issue with your employer. Many employers have a complaints procedure or a disability contact officer (usually within the human resources department) who can discuss workplace problems and concerns with you.
If you are unable to resolve the issue, you can make a complaint to the Australian Human Rights Commission. You can also complain to State and Territory organisations responsible for anti-discrimination.
Making a complaint to the Australian Human Rights Commission
Your complaint needs to be put in writing and should include:
- what happened
- when it happened
- where it happened
- who was involved
- the names of anyone else who can say what happened.
If you cannot write down your complaint, get someone else to write it down for you, or ask the Australian Human Rights Commission to help you write it down. For more information, visit the Commission’s website or phone 1300 656 419.
You can email your complaint to the Australian Human Rights Commission or electronically lodge a complaint through the Commission’s website.
The Australian Human Rights Commission then decides if they are legally able to investigate your complaint. If they cannot deal with your complaint, they will write to you and explain why. If they decide to investigate, this may include contacting the other person/s involved, to get their side of the story. The Australian Human Rights Commission will then work with you and the other person/s to find a solution that everyone can agree with. This is called conciliation. If conciliation does not work, you can decide whether or not to take your complaint to court.
Contacting the Fair Work Ombudsman to settle disputes
The Fair Work Ombudsman website can give you information on settling workplace disputes. It can tell you how to lodge claims if you think you have unlawfully lost your job due to your disability. It can also help if you have been discriminated against in some other way.
Last updated: 17 August 2018 - 9:59am
Contact a JobAccess Adviser by phoning 1800 464 800 or fill out our enquiry form.