The role of an Employment Lawyer (Melbourne)

What is an employment lawyer?

An employment lawyer represents both employers and employees. The role of employment lawyers for employees and employers can be broad – it is reflective of the complex world of work. Sometimes you might need advice about a new contract; other times, you might be in dispute about conditions your employer is proposing, the bonuses that they might be proposing to pay (or not to pay) or performance-related issues, including termination of employment. 

At Gordon Legal, our no win no pay employment lawyers act for employees in matters such as unfair dismissal, disputes at the workplace, discrimination, disciplinary matters, unlawful termination/general protections applications, bullying at the workplace, underpayment and wage claims.

 

What type of lawyer do I need for work-related issues?

We recommend you get an employment lawyer with specialist knowledge in these areas to advise you in your employment dispute. We will be able to identify the issues more efficiently and determine your rights.

 

How can I get an employment lawyer?

You can arrange an appointment with Gordon Legal and attend an initial consultation for a flat fee. In this initial consultation, we will review your documents and provide initial guidance and advice. You can then choose to engage the lawyer to work on your matter.

 

What is unfair dismissal in VIC?

An unfair dismissal is where you have been terminated from your employment and you believe it was harsh, unjust or unreasonable. You need to meet eligibility criteria including type of employment and length of service to be eligible. You can check this with an employment lawyer or you can use some of the questionnaires on the Fair Work Commission website. As part of an unfair dismissal application, you can seek reinstatement to your employment or compensation for your dismissal. An unfair dismissal application is a two-step process – after you lodge your application, it will be listed for a conciliation to try and resolve the matter with your former employer. If the matter is not resolved, the Fair Work Commission can determine the matter at a hearing. 

 

Can I be dismissed without warning?

Yes, in cases of serious misconduct. Such cases might include situations where theft or workplace assault is involved. In other less serious cases, ordinarily, there is an expectation that you are given a warning about any concerns around your poor performance or conduct prior to dismissal. However, there is not a fixed rule. 

The myth that your employer must give you three warnings before terminating you is untrue. In cases where employees are dismissed without prior warning (especially in cases involving alleged poor performance), there is a reasonable case to be made that the dismissal was unfair.

 

How much compensation will I get for unfair dismissal?

The maximum award for compensation for an unfair dismissal is six months pay or reinstatement. It is very rare for applicants to receive the maximum amount of compensation.

 

Who cannot claim unfair dismissal?

There are eligibility thresholds for unfair dismissal claims. Permanent full-time and permanent part-time employers, as well as casuals with regular shifts and expectations of ongoing work, are eligible if they have worked for a small business for at least 12 months, and a larger business for at least six months.

Those who cannot claim unfair dismissal include:

-   Employees on fixed-term contracts that have ended

-   Workers on apprenticeships and training schemes

-   Employees who earn more than the high-income threshold (updated annually, most recently $153,600 excluding superannuation)

-   Those covered by the modern award

-   Workers who have been made genuinely redundant

 

What are the general protections available to employees?

Under the statute, employees cannot be terminated for discrimination on the grounds of sex, gender, age etc, for taking sick leave, or for exercising workplace rights, such as making complaints and union activity. Unlike unfair dismissal, general protections do not require an eligibility claim for length or type of employment. Like unfair dismissal, it is dealt with by the Fair Work Commission, and needs to be filed within 21 days of termination.

Your circumstances may be more appropriate for a general protections claim – consult your lawyer to find out which route is right for you.

 

When should I hire an employment lawyer?

You should consult an employment lawyer for advice on employment law matters, such as being called into a meeting that might affect your employment. You should engage an employment lawyer at the earliest stage possible so you can get guidance on your case and to take the appropriate steps to protect your position.

 

How do employment lawyers get paid?

We charge a flat fee for the initial consultation. From there, we disclose our hourly rate – if you continue with us, you will be charged at this rate. We will provide you an estimate of total legal fees to run your matter.

 

What happens if I make an application and someone challenges my eligibility?

If a claim is made by an employee, the employer can make a jurisdictional objection. This is dealt with first as part of the jurisdictional hearing.

If your eligibility is challenged, you can get legal advice or access materials through the Fair Work Commission, which will outline your rights.

 

Does sexual harassment come under employment law?

Typically, sexual harassment is dealt with through the Equal Opportunity Commission or Federal Human Rights Commission.

In Victoria, the case will start with the Equal Opportunity Commission and a conciliation will be run. If the case is not resolved through the conciliation, it will go to the Civil and Administrative Tribunal at no cost.

At a federal level, it will go through the Human Rights Commission, then Federal Court to bring your claim – at this point, it is a cost jurisdiction, meaning that if you win, your costs will be paid for.

Unfair dismissal generally is not relevant for sexual harassment cases, but general protections could be, as it may fall under discrimination. Talk to your lawyer for advice.

 

What happens if I lose my employment law case?

The Fair Work Act comes under a no-cost jurisdiction, so if you lose your case you do not have to pay legal costs for the other parties. The exception is if you brought a case vexatiously or for a collateral purpose to frustrate, or with no merit.

 

Is there an employment lawyer near me?

We have offices across Melbourne in the CBD, Geelong, and Dandenong.

 

What to do if this information applies to you

At Gordon Legal, we understand that workplace disputes are a personal issue.

For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal on (03) 9603 3000 or our Geelong office on (03) 5225 1600 to speak with a member of our team.

Given the current environment, we are providing consultations over the phone or via video conferencing platforms.

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