• The maximum compensation payout is six months’ salary.
• While the majority of claims settle during conciliation conferences if the claim proceeds to a hearing the commissioner can either award an amount of money in compensation or order reinstatement. 
• It should be noted that the maximum payout and reinstatement are rare but it will depend on the individual facts. 

• The conciliation conference is a good chance to achieve non-monetary outcomes in addition to compensation that cannot be awarded during a hearing. 
• Some common negotiated outcomes include but are not limited to:

1. the chance to tell your side of the story and hear comments from an impartial conciliator;
2. financial compensation for specific damages you have suffered;
3. a termination can be changed to a resignation;
4. agreement by the employer to provide a reference or a statement of service; and 
5. a staff email sent advising of employee’s resignation. 

• The Fair Work Act defines serious misconduct as:

1. wilful or deliberate behaviour that is inconsistent with the continuation of employment; and
2. conduct that causes serious and imminent risk to;

• the health or safety of a person; or
• the reputation, viability or profitability of the employer’s business. 

• If the employer can show that the employee engaged in serious misconduct the employee’s employment can be terminated without notice. 
• The employer must still follow proper and fair termination procedures to ensure the termination is fair such as:

1. conducting an investigation; 
2. informing the employee of the allegations that have been made against them; 
3. providing them with an opportunity to respond to the allegations before deciding to terminate the employee; and 
4. allowing the employee the opportunity to have a representative present at meetings in relation to the allegation or termination. 

• A genuine redundancy will occur when the employer no longer needs work that was performed by an employee to be performed by anyone. 
• The answer here will depend on:

1. the type of employment the employee held;
2. the terms of employee’s contract;
3. the modern award or enterprise agreement;
4. the size of the employer; and 
5. how long the employee was employed with the employer. 

• A full time employee within a business of more than 15 full-time staff members will be entitled to:

1. annual leave;
2. any accrued long service leave;
3. a notice of termination; and 
4. severance payment if employed for more than one year. 

• An employee of a business of less than 15 full time staff members is generally not entitled to severance pay on redundancy. 
• If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.

• The Fair Work Ombudsman has produced a table outlining 9 indicators to assist in determining whether a person is a contractor or an employee:

1. degree of control over how work is performed: a)  an employee performs work under the direction and control of employer on an ongoing basis; and  b)  a contractor has a high level of control in how the work is done;

1. hours of work:  a)  an employee generally works standard hours while a casual employee’s hours may vary from week to week; and;  b)  a contractor decides what hours to work to complete a specific task;
2. expectation of work:  a)  an employee has an ongoing expectation of work however some employees may be engaged to complete specific tasks on a short term basis; and  b)  a contractor will usually be engaged for the duration of a specific project;
3. risk:  a)  there is no financial risk to the employee as the employer manages risk; and  b)  a contractor will bear the risk for profits or losses on each task and will have their own insurance to cover losses;
4. superannuation: a)  the employer pays the superannuation of the employee; and b) a contractor generally pays their own superannuation;
5. tools and equipment: a)  an employee generally has either a tool allowance or the employer provides tools and equipment; and   b)  a contractor generally use his or her own tools unless the contract of service provides otherwise; 
6. tax:  a)  the employer deducts income tax from the employee’s wages; and  b)  a contractor pays their own tax and GST to the ATO;
7. method of payment: a)  an employee is paid regularly; and b)  a contractor must have their own ABN and submit invoices for work completed;
8. leave:  a)  an employee is entitled to receive paid leave; and b) a contractor does not receive paid leave. 

• Generally speaking the Fair Work Commission is a no costs jurisdiction. This means that each party pays for their own legal fees. 
• However the commission may order an employee or employer to pay some of the other party’s costs in an unfair dismissal application where:

1. the application or response was frivolous, vexatious or did not have a reasonable cause; or
2. there were no reasonable prospects of success. 

• Sometimes an employer will request a potential employee to attend a trial when they are being considered for a job. The trial must only be to determine whether someone is suitable for the job and not for personal or business gain by the employer. 
• A work trial can be unpaid if:

1. it is only to demonstrate a potential employee’s skills for the position they have applied for;
2. the duration is only as long as is necessary to demonstrate the skills required for the position depending on the complexity of the role and could vary from one hour to one shift; and
3. the potential employee must be supervised for the duration of the trial. 

• As an example if the trial is for a wait staff position at a café one hour might an appropriate period for the potential employee to demonstrate their skills. However a five-hour shift could be considered unreasonable and the potential employee should be paid for the entire shift. 
• If an employer is concerned about the suitability of a potential employee they could consider hiring them as a casual employee with a probation period. 

• In NSW there is no minimum working age.

• Generally speaking if the conduct of the employee out of work hours affects or has the potential to affect the business of the employer or the relationship between the employee and the employer then it could be used to justify termination of the employee. Where the employee’s conduct relates to use of social media, the employer should have an appropriate social media policy in place and taken steps to ensure the employee is aware of and understand the policy.
• This is a complex area and each case will need to be decided on the individual facts. 
• As a precaution employees should be careful when posting material about their work online and avoid posting any material that your employer might react negatively to if they saw it.

• There is no requirement for employers to provide references for former employees. 
• If an employer does provide a reference for a former employee they should ensure that the reference does not misrepresent the behaviour of the former employee to a new employer.
• An employer should on request provide an employee with a Certificate of Service giving details including the period of employment and nature of work performed.

• Subject to what an individual employment contract or modern award stipulates the National Employment Standards set out the minimum notice requirements upon termination of employment. 
• The length of notice varies from 1 week to 4 weeks depending on the period of continuous employment.
• Employees over 45 years old who have been employed for over 2 years are entitled to an extra week of notice.
• Payment of wages or salary including superannuation equivalent to the period of notice can be substituted as an alternative to giving notice.
• The same notice periods usually apply to employees upon terminating their employment.

Question

• It is unlawful to terminate an employee’s employment because they took paid or unpaid sick leave. Paid and unpaid sick leave is an employee entitlement. 
• An employer may only dismiss you because you have abandoned your employment if they can prove that it was reasonable for them to come to this conclusion and that it was not possible for you to return to your previous position after your absence. 
• Different provisions may apply if you are on leave due to a work related injury. 

Question

Yesterday my supervisor called me for a meeting and gave me a written warning that alleged I acted unprofessionally with my colleagues. I did wrong. What should I do? 

Answer

• It is unlawful to terminate an employee’s employment because they took paid or unpaid sick leave. Paid and unpaid sick leave is an employee entitlement. 
• An employer may only dismiss you because you have abandoned your employment if they can prove that it was reasonable for them to come to this conclusion and that it was not possible for you to return to your previous position after your absence. 
• Different provisions may apply if you are on leave due to a work related injury.

Question

Yesterday my supervisor called me for a meeting and gave me a written warning that alleged I acted unprofessionally with my colleagues. I did wrong. What should I do? 

Answer

• The steps you can take to place yourself in the best position going forward are:

1. make sure that you fully understand the allegation being made against you;
2. if you do not understand ask your employer to provide details of the allegation in writing;

• sometimes for confidentiality reasons the employer cannot provide names of other employees if they made allegations against you;

1. provide your employer with a written response which should be placed on your employee file; and
2. if you are certain that you did not act as alleged, respond accordingly.

• You can request in writing that the warning be removed from your employee file. Even if it is not removed it is important that the correspondence is kept on your file so that if there are future employment concerns your objection to the previous warning is fully documented.

Question

I have been observing the conduct of one of my employees for the past three months. He does not come to work on time and many colleagues have complained against his inappropriate behaviour with them and customers. I am thinking of sending him a text message to not come to work from tomorrow. Can I do this? 

Answer

• You should always terminate someone’s employment in person unless there are special circumstances that would make it unreasonable to do so such as if there is a risk of violence should the employee attend the workplace. 
• The verbal conversation should be followed up with a written letter outlining the reasons for termination and the final date of their employment. 
• Treating the employee fairly and with respect may reduce the chance that an unfair dismissal claim will be made against you. 

Question

It came to my notice yesterday that my staff member stole money from the cash registers. I am angry that this has happened and want to terminate his employment immediately. Can I do this? 

Answer

• Theft is serious misconduct. You should adhere to a proper disciplinary or dismissal procedure including:

1. conduct a thorough investigation including obtaining witness statements if necessary;
2. outline the allegations to the employee in writing;
3. allow the employee an opportunity to respond to the allegations; 
4. inform the employee of the outcome in person and in writing; and 
5. allow the employee the opportunity to have a representative present during meetings.

• You can terminate your staff member’s employment immediately for cases of serious misconduct. In such circumstances notice is not required. However you will need to make sure that you have clear proof and substantial evidence of his misconduct and you should ensure the dismissal is done calmly, not in anger.

Question

I have been dismissed from my job as a casual employee because I had an argument with my boss. I worked in the same role for 2 years for 4-5 days per week. Can I make an unfair dismissal claim?

Answer

• For a casual employee to lodge an unfair dismissal claim they must have:

1. been employed for the minimum employment period; and 
2. been employed on a regular and systematic basis. 

• The minimum employment period is 6 months or 12 months if employed by a small business with less than 15 employees. 
• As you have been employed on a regular and systematic basis for 2 years and you believe the dismissal was unjust or unreasonable you may be able to make an unfair dismissal claim. 

Question

I am nearing the end of my maternity leave and want to return to my previous position. However my boss said that they have hired someone else as a permanent employee and my role is no longer there so I will be made redundant. Is this legal?

Answer

• You are entitled to return to your previous role after your period of maternity leave. This is the case even if someone else is performing your role as a replacement. 
• If the role no longer exists you must be given a suitable alternative position on similar pay. 
• This alternative position must be similar to your previous role and responsibilities. 

Question

One of my old employees has brought a civil claim against our company wanting extra wages. There is no basis for her claim. Now the case has been listed for a pre-hearing conference. I would like to know more about what this is. 

Answer

• A pre-hearing conference happens before the matter is listed for a hearing. 

• It is a mandatory meeting that all parties must go to. If you have a lawyer then they will come and represent you at this meeting. 

• The purpose of the pre-hearing conference is to help the parties to try to reach an agreement to resolve the issue.

Question

I have filed a writ and statement of claim at the court registry. I am making a claim for damages against my landlord. The registry staff told me I need to serve the other party but I have no idea how to find them. He does not take my phone calls and I do not know where he lives. How can I serve the documents on him?

Answer

• If you are cannot find the other party then you may apply to the court for substituted service. 

• Substituted service is a special process where you let the defendant know about the court case in an alternative way. 

o Examples of substituted service methods include:

 text messages;

 phone calls; and

 Facebook posts. 

• Another option is to use a process server. They are professionals who have special expertise in finding and serving court documents on people.

• It may be that you need to speak to a lawyer to discuss your options. 

Question

I have already tried everything to serve my court documents on my landlord. I am representing myself as I cannot afford a lawyer or a process server. I would like to know more about how I can apply to the court for substituted service?

Answer

• Your registry staff will be able to help you with questions about how to apply for substituted service at your court. 

• Generally you will need to apply in writing.

o You must send a letter to the court asking for substituted service.

o You must also prepare a supporting affidavit. This affidavit will need to include information such as:

 the date of the writ; 

 your attempts to serve the documents; 

 the time and place of these attempts at service; and

 your proposal for an alternative way of serving the documents. 

o You must include information about:

 your genuine attempts to find the person; and

 how the attempts have been unsuccessful.

o You must also explain how the proposed method of service will successfully tell the defendant about the court case.