Employee Rights

Daily Archives: February 18, 2021

Difference Between the Fair work Commission and Fair work Ombudsman?

Find out where you should be, it effects your rights

The specific functions of the Fair work Commission include:

1) Judging disputes, complaints in the workplace, (including unfair dismissal, general protection applications and anti bullying applications), sexual harassment stop orders
2) Maintaining the minimum employment standards including wages and employee rights
3) Reviewing and changing awards and agreements
4) Various other functions related to the workplace.

5) Resolving and ruling on matters relating to the National Employment Standards (NES)

The FWC, (as its known) also has a free call service to provide basic and general information on the Fair Work Act 2009, but they cannot provide legal advice.

Therefore, it is more appropriate for employees, employers, contractors and any other relevant parties that believe they have workplace liabilities or responsibilities, particularly around wage theft, to call the Fair Work Ombudsman for free advice and information.

The Fair Work Ombudsman also conducts investigations. Basically they enforce the underpayment of award wages and disputes around this For most of our clients, we recommend that employees who believe that they have been underpaid go to the Fair Work Ombudsman to enquire into what they should have been paid and request an investigation if they have indeed been underpaid.

One point worth noting we get allot of enquiries around the issue of late or non payment of superannuation. Or around the issue of contractors and superannuation and whether they qualify for superannuation. This issue is the responsibly of the Australian Taxation Office (ATO)

We get feedback that many employees ring the two fair work bodies and particularly the Ombudsman and the time waiting to discuss a matter can be lengthy, then people then give up and lodge a claim with the alternative body, thinking that will do, it will sort its self out, well it won’t. Both bodies in essence do there own thing and don’t necessarily interact.

Many employees get confused and try and lodge a unfair dismissal application with the Ombudsman, when it should be with the FWC, being a strictly enforced 21 days to lodge a claim then find them selves out side this timeline and have the serious risk of having their claim denied. Some employees lodge a unfair dismissal claim because they have not been paid there redundancy pay and its unfair, then end with having to pay the Employers legal cost because their in the wrong place.

Not sure, get advice from us, its free, its through, equally The FWC and the Ombudsman have enquiry lines, and are are helpful people. Call 131394, be aware they cannot give legal advice, they are their to process your claim.

We are A Whole New Approach, we are not lawyers, but the nations, leading workplace advisors, with some 30 years experience. We are leaders in workplace commentary, social justice and employee rights. Get advice today, its free, prompt, confidential and honest. We work in all states, NSW, Vic, Qld, SA, WA, Tas, happy to help.

Serious Misconduct In The Workplace

serious misconduct in the workplace

The term ‘serious misconduct’ is something that is thrown around by employers way too much in the employment sphere.

You may have heard it during a termination or when your employer is threatening your employment. ‘Serious misconduct’ is actually a legal term that will allow for employers to terminate /dismiss you on that basis and bar you from receiving your normal entitlements when you exit your employment. For example, when you are correctly dismissed for serious misconduct, you will be stripped from your entitlements to annual leave, long service leave, notice period and in the case a company is going through a downsizing or restricting, any redundancy pay you might have been owed but for the alleged serious misconduct.

However, since employers know that they can significantly reduce the costs of having to terminate your employment by saying that it was for ‘serious misconduct’, they may wrongfully do this and unlawfully strip you of your rightful entitlements. Employers, especially in tough periods and situations, will rely on this method to drive their wages down and reduce payroll to save them some money.

Thus, it is very important for you to know and determine whether your dismissal was likely for ‘serious misconduct’ or for mere misconduct.

Now you understand there is a crucial difference. The Fair Work Commission decisions are very clear on the very high bar employers must meet to satisfy ‘serious misconduct’ of an employee. Some examples are provided, but are not limited to these:

– Theft
– Physical or verbal assault
– Fraud
– Intoxication or illicit substance abuse at work
– Blatant disrespect for lawful and reasonable orders.

This is definitely not an exhaustive list but it could give you some flavor on whether your misconduct is more similar to a regular mishap in the workplace or something more onerous against the employer.

The reason for this blog, is the extraordinary amount of employees who now search this word / phase on our advertising campaigns. In these tough economic times times some employers will resort to whatever it takes to reducing cost, avoiding redundancy etc as already mentioned. Dismissal for any reason is a career impediment, or an inhibitor to getting another job, this need to be corrected.

serious misconduct

Serious Misconduct In The Workplace

I have reedited the article as of the 21/12/2021, the reason being the large amounts of enquires and dismissals due to the Xmas party season, this year it seems particularly high. My theory is after the various states getting out of lock down, employees actually having to go back to work, that employees are going nuts, wild, whatever, glad to be out there. Nothing wrong with that, I’m not the fun police. But established codes of conduct still apply, drunkenness’, sexual harassment, offensive behaviour etc, will lead to termination for serious misconduct if your not careful.

Also the lockdowns, the stress of the pandemic has take a huge human toll on many, many supervisors, mangers are now cranky, lacking a sense of humor, so in some cases behavioral issues, jokes, innuendo, was overlooked in the past is no longer tolerated. so be careful.

Also after some near two years lockdown, companies, people are not the same , some are better, some worse. Companies are watching their expenses like never before. So if a company can dismiss you for serious misconduct, notice does not have to be paid, long service leave is not paid, bonus in many cases do not apply or forfeited.

We are A Whole New Approach P/L, we are not lawyers, but leading workplace advisors. 30 years experience, leaders in workplace commentary and justice for employees, we are here for you

Hope you found the article “Serious Misconduct In The Workplace” informative. Call us at 1800 333 666 to receive a free consultation on whether we think your dismissal or pending dismissal may not have been or will be for ‘serious misconduct’. Explore your options, our advice is prompt, honest, and we will not mislead you. We work in all states, NSW, Qld, Victoria, Tas, SA, WA, NT, All Fair work Commission matters, including abandonment of employment issues, being falsely accused of sexual harassment

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