NSW Unfair Dismissal - No Employment Contract, Superannuation and Annual Leave?

[Hafiz07]

I have started working casually for this company in November 2014 for a couple of weeks. I was told that they like my work and was offered a full time role soon after. I was employed full-time on 12 January 2015 and dismissed on 10 July 2015 (last day). I was not given an employment contract from the start, only an email received from the employer advising my employment start date.

Till today, I have not been paid my annual leave and Superannuation yet. No reasons have been given for my unfair dismissal. There was no training provided, no complaints, no performance review and etc....

Can someone please help me with my situation and employee rights?

 

[Sophea]

Hi Hafiz07,

Firstly, just because you don't have a written employment agreement does not mean you don't have a contract. The contract is formed by your employer's offer of work and your acceptance of it. The email confirming your start date would be evidence of this. The terms that make up your contract will be largely implied by the course of dealing between you and your employer and any thing implied by law into the contract.

Under the NES, which covers most workplaces in Australia, your employer must pay you 4 weeks annual leave per year (5 if you are a shift worker) which accrues as you work. You should be paid out for any accrued leave when you leave that employment. Here is some more info: Annual leave - Fact sheets - Fair Work Ombudsman

Employers are required to pay 9.5% superannuation to you if you are paid $450 or more before tax in a month and you are: over 18 years, or under 18 years and work more than 30 hours a week. This applies whether you are full-time or part-time and sometimes to casual employees.

In order for you to claim "unfair dismissal" from employment, you must prove that all of the following have occurred:

• you have been dismissed
• your dismissal was harsh, unjust or unreasonable
• if your employer is a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code
• your dismissal was not a genuine redundancy.

When your employment is terminated you must be paid out by your employer:

• any outstanding wages or other remuneration
• any payments being made in lieu of notice of termination by the employer
• any accrued annual leave and long service leave entitlements
• any severance pay entitlements if the employee has been made redundant and the employee has an entitlement to redundancy under relevant Commonwealth workplace laws or an industrial instrument.

Based on what you have stated above it sounds as though you have not received all of these entitlements. The Fair Work Ombudsman can investigate and take action on your behalf to make sure that all legal entitlements under relevant Commonwealth workplace laws are paid.

Employers can be liable for penalties if they do not comply with their obligations under Cth workplace laws.

I would start by writing a letter to your former employer stating that you have not been paid out your correct annual leave, superannuation and severance pay entitlements as required by law and requesting that this be done within 14 days and a statement of these payments provided to you. If they don't comply or don't respond, contact the Fair Work Ombudsman and they can sort it out for you.

 

[Hafiz07]

Hi Sophea,

Thanks for the help. Greatly appreciated. I have read the fair work commission website and I am still unsure of the 6 months requirement thing to qualify for the unfair dismissal.

Can you or someone please tell me if i do qualify based on my casual and full time period?

 

[Sophea]

Yes, you will unlikely be entitled to redundancy as you have not been there 12 months. What sized business is your employer? Does it have 15 or more employees?

Based on what you have stated you were employed full time for 1 day short of 6 months. In know of certain cases where casual employees who have been employed on a regular and systematic basis have also been able to apply for unfair dismissal however I think the more important issue to broach first is why you believe it was an unfair dismissal? Why was it harsh, unjust or unreasonable? What was the reason given for your dismissal?

 

[Hafiz07]

it's a mid size biz with 15 employees....definitely more than 5 million turnover.

the reason given for my dismissal was unable to provide me with training and therefore i had to go. However, my employee separation certificate states redundant as the reason.

The real reason is the internal office politics and favouritism and i had to be made the scapegoat for it

 

[Sophea]

I think it may be difficult for you to argue the unfair dismissal side of this, especially if they are arguing it is a redundancy. I would call and speak to someone at the Fair Work Ombudsman.

However you do have a right to be paid all of your correct termination payments, so definitely follow up on that.

 

[Hafiz07]

Thanks Sophea, I have called Fair Work Commission and they are unable to determine too, kind of 50-50 case as I have started working as a casual before being offered a full time position.

They would most likely be arguing the 6 months timeline as they had actually advertise my position online and promote someone internally after i left and hire someone to replace that person.

 

[Sophea]

That's interesting because if they have advertised for the position they fired you from it is not a genuine redundancy.

 

[Hafiz07]

Hmm...they did for 2 positions. By the way, do you know what is the maximum legal work hours per week?
Everyone in the office was told to work from 830 to 530 (inclusive of 30mins lunch break). I just feel that is not right.......

 

[Sophea]

The National Employment Standards specify maximum hours of work which apply to all employees covered by the national workplace relations system. Under the NES, an employer cannot require their employees to work more than 38 hours in a week unless reasonable. In determining whether or not the time in excess of 38 hours is reasonable, they must consider any risk posed to the employee's safety or health, their personal and family circumstances and responsibilities, the needs of the workplace, whether the employee gets paid overtime or penalty rates for the additional hours, the notice given by the employer of the requirement to work extra hours, the usual practice for that particular industry, the nature of the employee's role etc. It is also possible to average hours out over - for example a month - so that you work over 38 one week but less the next - that is also okay when it averages out to 38 a week.

As regards the minimum break requirements - this is generally specified in your award, enterprise agreement or other registered agreement. You can search your industry and determine what you entitlements are here: fairwork.gov.au/employee-entitlements/hours-of-work-breaks-and-rosters/breaks