BSS Business Legal Services:
EMPLOYMENT LAW
This section includes information on workplace relations issues such as discrimination/harassment, unfair termination of employment and unfair contracts, and what to do if you have an employment problem.
1. Anti-Discrimination - Harassment
• What is harassment?
In general harassment is any form of behaviour:
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you do not want; |
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offends, humiliates or intimidates you; and |
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targets you because of your sex, pregnancy, race, marital status, disability, homosexuality or age. |
• What types of behaviour could be either harassment or sexual harassment:
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material that is racist, sexist, sexually explicit and so on and is displayed in the workplace or put in somebody's work space or belongings or on a computer or fax machine or on the Internet; |
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sexual or suggestive remarks; |
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imitating somebody's accent; |
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obscene telephone calls, unsolicited letters, faxes or e-mail messages; |
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offensive jokes; |
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threats or insults; |
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ignoring, isolating a person or group because of their sex, homosexuality, race and so on; |
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sexual or physical contact such as slapping, kissing or touching; |
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sexual advances or invitations; |
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unwelcome practical jokes. |
• How does the law deal with harassment?
In New South Wales it is against the law for you to be harassed because of your:
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Sex |
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Pregnancy |
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Race |
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Marital Status |
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Disability |
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Homosexuality |
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Transgender |
• Is harassment a serious management issue?
There are many problems for an organisation where harassment is allowed to happen. For example unchecked harassment of any kind between or against employees can cause:
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Increased stress |
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Absenteeism |
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Low morals |
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Decreased productivity |
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A decrease in quality of work |
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Loss of reputation/image |
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Unnecessary resignations |
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Career blocks |
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Breakdown in communication and trust |
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Industrial problems |
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Worker's Compensation claims |
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Occupational Health & Safety issues. |
• Legal Consequences
In general an employer is liable for any harassment it commits as well as any harassment by an employee unless the employer can show that they took "reasonable steps" to prevent the harassment from happening. "Reasonable steps" includes developing a policy on harassment. Distributing it to every one in your workplace and making sure that everyone understands their rights and responsibilities.It should include developing an easy to use complaint handling procedure that is followed properly.
• Remedies:
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Financial compensation up to $40,000.00. |
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Appropriate action taken against the harasser. |
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Introduction of anti-harassment policies and education. |
2. Termination Of Employment
Laws affecting the right to terminate:
• Workplace Relations Act - commenced 1/1/1997
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Unfair termination
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harsh, unjust, unconscionable
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Who can apply:
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– Commonwealth public sector employee |
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– Federal award employee
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who is exempt:
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– Fixed task. |
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– Fixed term contract (provided no ability to terminate prior to end of term). |
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– Probation or trial period of 3 months or less. |
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– Casual employees for a short period (ie employees who are casuals fro less than 12 months with no real expectation of full time employment). |
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– employee not governed by award, earn more than approximately $75,000.00 per year. NB - remuneration includes non monetary benefits.
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What is harsh, unjust, unconscionable
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Relevant factors
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– Valid reason for termination related to the employee's capacity or conduct or the employer's operational requirements. |
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– employee notified of reason |
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– employee given an opportunity to respond to any reason. |
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– If unsatisfactory performance - whether employee warned about unsatisfactory performance. |
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– NB: Redundancy - termination for redundancy is not excluded, need to provide bona fide grounds for redundancy, employees are sufficiently consulted, a fair selection process is applied, alternate work is considered and sufficient notice of termination is given.
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Remedies
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– Reinstatement. |
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– If inappropriate, compensation not exceeding 6 months salary.
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Costs
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– Only awarded against a party (employee) if claim made vexatiously or without reasonable cause - or party failed to settle a claim - rare.
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• NSW Industrial Relations Act 1996
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Unfair Dismissal - harsh, unfair, unconscionable
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Who can apply:
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– State award employees. |
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– Crown employees. |
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– Employees who earn less than $71,200.00 as at 1 July 2000. |
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– Public sector employees. |
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Exemptions - same class as Workplace Act.
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What is harsh unfair etc and - same as Workplace Act except added:
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– Nature of reason given. |
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– Whether it has any basis in fact. |
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– Whether employee had opportunity to make out a defence/explanation. |
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– Whether reinstatement requested.
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Remedies - identical.
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Costs - if unreasonably failed to settle or vexatious or frivolous claims.
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3. Unfair Contracts
• Who can apply - any employee irrespective of amount earned.
• What contracts - contracts of employment, arrangement, condition or collateral agreement.
• When will contract be unfair.
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– The Court has a wide discretion. |
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– terms operate unfairly (one side or onerous). |
The unfair contract provisions of the Industrial relations Act means that regardless of the class or status of an employee, the termination of that employee's employment may always be the subject of review by a court on the discretionary ground of fairness.
What to do if you have a problem
If you have an employment law problem (whether as an employer or employee), quick legal advice on what to do will help. Call us to discuss your problem.
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