12/09/2016, 09:14:AM
12/09/2016, 09:14:AM
Unfair dismissal – you have rights!
The Fair Work Act provides that a national employee is protected from unfair dismissal, as long as two requirements can be met:
1. The minimum employment, ‘probationary’, period must have been completed, which is normally 6 to 12 months in a small business employer’s situation.
2. The employee must be covered by an award or enterprise bargaining agreement, or their annual earnings are below the high income threshold.
If an employee wants to start an unfair dismissal claim against an employer, it must be commenced within 21 days of the dismissal by lodging an application with the Fair Work Commission.
In the event that a claim is lodged after that date, the filing party needs to establish to the Fair Work Commission unusual or extraordinary reasons for the delay, which is reasonable on the facts of the circumstance.
So let’s have a close look at a case:
In Homes v Coles group Ltd [2014], employees that worked in a warehouse were provided with Milo to drink during their staff breaks. One employee during the break period would mix the Milo with a product that the employee brought from his place of residence, and would also take a small amount of the Milo home each day. The employee continued this process for some time. Management was informed that this employee was spooning Milo into his bag and taking it home. On one particular occasion the employee was stopped by security, questioned, and their bag was checked with the contents of some Milo being discovered. When the employee was questioned at the time the bag was inspected, the employee gave a mix of answers, saying that the Milo was brought from home, and some was taken from the staff room.
Coles suspended the employee, and conducted and inquiry 11 days later. Coles following the investigation resolved that the employee had breached Coles code of conduct by removing the Milo from the premises with the employee’s conduct being dishonest when questioned by security.
The question before the Fair Work Commission was whether the conduct of Coles supported a claim for unfair dismissal?
The Fair Work Commission held that the employee did not act dishonestly, and the interrogation by the Coles security guard that questioned the employee was not appropriate and resulted in the dismissal of the employee. As a consequence of the Fair Work Commission findings, the employee was reinstated.
Sometimes the stronger party may act as a bully. So keep in mind, when things are not right, get that legal advice to protect your legal rights & interests.
The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799
Legal AU Pty Ltd Lawyers are “Liability limited by a Scheme approved under Professional Standards Legislation.”
