Guest BrisbaneBevan Posted March 14, 2014 Share Posted March 14, 2014 Hey guys, I've tonight just been fired, whilst off with flu this week! Any employment lawyers out there who can offer some advice? I was given termination without notice, even though I am out of my 3 month probation, and have not broken any rules in their employment contract. I am going to be contacting the Fair Work Ombudsman about it, but it seems like they have no right to do this? Any comments appreciated. Link to comment Share on other sites More sharing options...
Guest Posted March 14, 2014 Share Posted March 14, 2014 Fired or made redundant? Have you been paid in lieu of notice? Link to comment Share on other sites More sharing options...
blossom Posted March 14, 2014 Share Posted March 14, 2014 Fired or made redundant? Have you been paid in lieu of notice? Agreed. Also, were you a casual? What reason did they give? Link to comment Share on other sites More sharing options...
newjez Posted March 14, 2014 Share Posted March 14, 2014 There may be exceptions if the sickness prevents you from working and there are no alternatives, but they shouldn't fire you for being sick as such. If you are repeatedly sick, they can start proceedings against you, but this takes time. They can of course find other reasons to fire you, and they can do this despite being sick. Get everything in writing and seek professional advice. Link to comment Share on other sites More sharing options...
Que Sera Sera Posted March 14, 2014 Share Posted March 14, 2014 Its perfectly possible to fire someone for being sick especially if they have been there a short amount of time. However they'd be exoected to follow their own contract unless you are casual, Link to comment Share on other sites More sharing options...
northernbird Posted March 14, 2014 Share Posted March 14, 2014 Hey guys, I've tonight just been fired, whilst off with flu this week! Any employment lawyers out there who can offer some advice? I was given termination without notice, even though I am out of my 3 month probation, and have not broken any rules in their employment contract. I am going to be contacting the Fair Work Ombudsman about it, but it seems like they have no right to do this? Any comments appreciated. What visa are you on? Link to comment Share on other sites More sharing options...
Guest BrisbaneBevan Posted March 16, 2014 Share Posted March 16, 2014 Terminated without notice. On a full time contact, so fired without payment in lieu. First time sick, so it was if the employer was just waiting for an excuse. They are quoting small business rules at me. Have lodged a complaint with the Fair Work Ombudsman as they have not followed their code, i.e given me warnings, time to improve etc. Fortunately my 457 visa is a spouse one. Link to comment Share on other sites More sharing options...
Mizzmp Posted March 16, 2014 Share Posted March 16, 2014 How many employees are there? There has to be under 15 employees to class as a small business and they HAVE to include casual employees. You cannot go for unfair dismissal if you have been employed for under 6 months no matter how many employees they have but they do need to pay 1 weeks notice pay in lieu plus any annual leave you have accured. They also need to give a valid reason. Sounds like they aren't very nice people to work for and you are better off with another employer. Link to comment Share on other sites More sharing options...
realitynotincluded Posted March 16, 2014 Share Posted March 16, 2014 If you feel you have been fired unfairly , you need to put a complaint in within 21 days......A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. Under the Fair Dismissal Code, employees of small businesses cannot make a claim for unfair dismissal in the first 12 months after being hired. Employees of larger businesses are able to make a claim for unfair dismissal at 6 months. kind of a double edge sword if you ask me... but they still have to follow rules. check this all out at http://www.fairwork.gov.au/ Answers you want are in the FAQ Hey guys, I've tonight just been fired, whilst off with flu this week! Any employment lawyers out there who can offer some advice? I was given termination without notice, even though I am out of my 3 month probation, and have not broken any rules in their employment contract. I am going to be contacting the Fair Work Ombudsman about it, but it seems like they have no right to do this? Any comments appreciated. Link to comment Share on other sites More sharing options...
starlight7 Posted March 16, 2014 Share Posted March 16, 2014 Did they give you any reasons for their actions? I wouldn't have thought they could fire you legally, especially as you have finished your 3 month probationary period. However, if you chase after them and involve lawyers it could be costly and stressful- plus some employers spread the word around, depending on what field you are in. Link to comment Share on other sites More sharing options...
Guest The Pom Queen Posted March 16, 2014 Share Posted March 16, 2014 I also think there seems to be a huge play on words when employing people, I see it used a lot up here and in Melbourne. They will offer you a job as full time BUT it is casual full time, most companies do start you off as being a casual because it is easier to get rid of people they don't want. You always need to check that your contract states permanent full time, or permanent part time. Im not saying this is the case for you but its good to make others aware. Link to comment Share on other sites More sharing options...
Guest BrisbaneBevan Posted March 16, 2014 Share Posted March 16, 2014 Thanks for the advice guys. I am over 6 months employed with the fools, and the reason given for termination was 'unsatisfactory performance'. That may be ok enough, and may wash with the Fair Work Code if I had warnings, help to improve, and basically they told me my performance wasn't good enough. But they didn't. I just had sarcastic and threatening emails, whilst I was off sick. An expectation to take phone calls whilst in bed, and a generally bullying pursuit of me whilst I was dying ;-) I think the only was they can summarily dismiss without notice is for 'gross misconduct' etc. Now they are even late with my last salary. Due on the 14th. It it looks like it only costs $65 to lodge a complaint with the Fair a Work people, so I will definitely do this within 21 days. They are a business with less than 15 people, and I will name and shame as soon as this is all over. One final insult from their termination letter to me was; a reminder that there is a restraint clause in my contract preventing me from finding similar work for 6 months. It seems they've ignored all of the other clauses set out to protect the employee though. ..to be continued! Link to comment Share on other sites More sharing options...
ali Posted March 16, 2014 Share Posted March 16, 2014 Thanks for the advice guys. I will name and shame as soon as this is all over. ..to be continued! Not on PIO ... it's one of our rules. Link to comment Share on other sites More sharing options...
Rupert Posted March 17, 2014 Share Posted March 17, 2014 You cannot make a claim for unfair dismissal against a small business if you have been there for less than 12 months. So I think you are wasting your time and $65 in this respect. Of course if they owe you any unpaid wages that is another matter and personally I would take no notice whatsoever of the six month clause. They cannot deny you the right to make a living and no court will uphold that they can. So just ignore it and let them sue. I am curious about why they were so upset about the sick leave, did you have an unusual track record in this regard? Link to comment Share on other sites More sharing options...
starlight7 Posted March 17, 2014 Share Posted March 17, 2014 I'd be looking for another job- never mind the 6 month stuff. I would also write it all off as a bad experience if it is just a small business- there must have been other reasons for how they acted, at least in their minds. If you bad mouth them they could sue and then you would be even worse off. Link to comment Share on other sites More sharing options...
silencio Posted March 17, 2014 Share Posted March 17, 2014 They should have give you at least 2 warnings before they sacked you! No matter if you were casual or not. Link to comment Share on other sites More sharing options...
silencio Posted March 17, 2014 Share Posted March 17, 2014 Working for a small business - like mentioned before with the 12 month rule - you're not covered under the Fair Work Act regarding your dismissal. But for late or missing salaries your are! Check if they paid you the right amount, sometimes such dubious companies 'forget' to pay the correct wages. In SA lodging a complaint at Fair Work is fee free. Hubby did it last year, month after his unfair dismissal, because his old company 'forgot' to pay holiday leave. It was enough to buy a bike for 1200 bucks. Might worth to check your payslips with Fair Work!!! Link to comment Share on other sites More sharing options...
Chortlepuss Posted March 17, 2014 Share Posted March 17, 2014 Can't you ring Fair Work for advice before paying them? Restraint clauses are nonsense - I had one in my contract and if I had paid any attention to it I would have been unable to earn my living - so unenforceable. I worked for a very large not for profit which behaved fraudulently and stuffed me over. It became apparent to me that taking action against them would hurt me substantially more than it would hurt them. They did pay me off in return for not going to Fair Work Australia - but were never really worried about the claims myself and another senior member of staff made, despite being very well documented and evidenced. Some of the perpetrators were bullet proof - completely immoral but very well connected. All doing very well currently in very senior roles and still up to their old tricks. Proceed with caution. Link to comment Share on other sites More sharing options...
grahamffc Posted March 17, 2014 Share Posted March 17, 2014 I've been in Australia (Melbourne) for a year now and cannot believe how cut throat employment appears to be here. In my job I've seen colleagues made redundant in what seems a very quick process without many other people batting eye lid. I have seen similar processes in the UK and people were first told their position is at threat, then given consultation time etc. It buys them time to look for something else (more than the standard week here) and the time to pass on any part of their work within the company. I work in an office enviornment and have a mate here who is a carpenter which seems far worse, he seems to go through dozens of jobs because there isn't the work but has never had more than a days notice. It feels as if every business is run by the mafia here! Link to comment Share on other sites More sharing options...
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