Employment Lawyers for Employers Melbourne

Frequently asked questions.

Plain-English answers to the questions we are asked most often by Melbourne clients.

When should an employer obtain employment law advice?

As early as possible — ideally before taking action, not after. The most common employment law claims arise from decisions that were made quickly, without proper process, or on the basis of contracts and policies that did not properly support the decision. Early advice on performance management, misconduct, restructuring, redundancy or executive exits typically saves significantly more than it costs by reducing the prospects of an unfair dismissal, general protections or discrimination claim.

What is an unfair dismissal claim?

An unfair dismissal claim under the Fair Work Act 2009 is a claim by an eligible employee that their dismissal was harsh, unjust or unreasonable. The Fair Work Commission considers whether there was a valid reason for the dismissal, whether the employee was notified of that reason and given an opportunity to respond, whether they had support, and the size and resources of the employer. Strict 21-day time limits apply. Most matters are resolved at conciliation rather than at a final hearing.

How should performance issues be managed?

Performance issues should be addressed early, clearly and through a documented process. The expectations being failed should be specific and reasonable, the employee should understand what is required to meet them, they should be given support and a reasonable opportunity to improve, and the outcomes of each step should be recorded contemporaneously. A poorly run performance process is one of the most common sources of unfair dismissal exposure.

What makes a redundancy genuine?

Under the Fair Work Act, a redundancy is 'genuine' where the employer no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the business, the employer has complied with any consultation obligations in the applicable award or enterprise agreement, and it would not have been reasonable in all the circumstances to redeploy the employee within the employer or an associated entity. Failing any one of those limbs can convert a redundancy into a dismissal that is open to challenge.

When is a workplace investigation required?

A workplace investigation is required (or strongly advisable) whenever the employer needs to determine, on a defensible basis, what occurred — typically in response to misconduct allegations, bullying or harassment complaints, safety incidents or whistleblower disclosures. The hallmarks of a sound investigation are procedural fairness to all participants, a properly defined scope, an impartial investigator, clear documentation and confidentiality. A poorly run investigation can be more damaging than the conduct it was set up to address.

Can employees challenge disciplinary action?

Yes. Disciplinary action — including warnings, suspensions, demotions and termination — can be challenged through several avenues, including unfair dismissal, general protections (adverse action), discrimination, breach of contract and (in some cases) workers' compensation or workplace health and safety processes. The best defence is a proper process supported by clear policies, contemporaneous documentation and adherence to natural justice.

What should be included in an employment contract?

At a minimum: position and reporting line, commencement date, ordinary hours, remuneration and any salary set-off arrangements, leave entitlements, applicable award or enterprise agreement, probation, confidentiality, intellectual property, post-employment restraints, termination rights and notice periods, and any deductions authorised on termination. Senior and executive contracts require additional terms around bonuses, equity, gardening leave and notice. Template contracts pulled from the internet are a frequent source of avoidable exposure.

What are general protections claims?

General protections (also known as adverse action) claims are made under Part 3-1 of the Fair Work Act. They protect employees from adverse action taken because they have or exercise a workplace right, engage in industrial activity, or because of a protected attribute (such as race, sex, age or disability). The legal threshold is lower than for unfair dismissal in important respects — including a reverse onus of proof on the employer — and uncapped compensation is available. These claims are increasingly common.

How can employers reduce employment law risk?

By getting the basics right: properly drafted contracts that match the role, current and well-communicated workplace policies, consistent performance management practices, a defensible process for misconduct and termination, proper consultation around change, and early legal advice when a sensitive issue first appears. Most employment law claims are not caused by bad intent — they are caused by good intent executed without process.

Should workplace policies be reviewed regularly?

Yes. Workplace policies — including codes of conduct, performance management, bullying and harassment, discrimination, leave, social media, workplace surveillance and grievance procedures — should be reviewed at least every two years and immediately following any significant legislative change or workplace incident. Policies that are out of date or inconsistently applied are routinely relied on by employees in unfair dismissal and general protections claims to demonstrate that the employer's process was unfair.