Daily Archives: February 18, 2021

Difference Between the Fair work Commission and Fair work Ombudsman?

Difference-Between-the-Fair-work- Commission-and-Fair-work-Ombudsman?
Find out where you should be, it effects your rights. You only get one chance at your unfair dismissal claim

Difference Between the Fair work Commission and Fair work Ombudsman?

Is a question that needs answers. There has been confusion for the last 12 years, when the Fairwork Act was enacted on the 1st of July 2009. Fair work is a great name and I understand the rationale. However it only works if its fair to everybody. Particularly the day to day users. Employees who have being dismissed, lost their jobs. underpayments, or award queries are examples. More people search in Google Fair work Australia, than Commission or Ombudsman, they are not sure what they are looking for.

We all witnessed this with the recent pandemic. Jobkeeper, jobseeker, not getting vaccinated, wanting to continue to work from home. I don’t want to work from home and I’m being made to. Lets try and bring some clarity to the situation.

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. However 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.

looking-confused-been-dismissed-not-sure-where-to-go
Looking confused, where do i go. Why isn’t there one place that can handle everything/ (well as we know government doesn’t work that way)

The Fair Work Ombudsman also conducts investigations

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.

This is to enquire into what they should have been paid and request an investigation if they have indeed been underpaid. You can take underpayments to the Fairwork Commission under various sections of the Fairwork Act. However it is easier in the first instance to go to the Ombudsman.

Non payment of superannuation

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). The ATO has a very helpful page on this. Its with a step by step process if you qualify for superannuation and non payments of superannuation.

Side note to this is watch your superannuation payments by your employer. It is one of the few payments by the employer that is not guaranteed by the government if your dismissed or if the company is liquidated.

Fair-work-conference-room
Conciliation room at the Fair work Commission used for unfair dismissal or general protections claims

Employees ring the two fair work bodies

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. The Ombudsman is clearly under resourced, and this needs to be fixed. Employees should be entitled to their monies in a timely manner and assistance to do this. 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. They 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, (it belongs with the Ombudsman). Then end with having to pay the Employers legal cost because their in the wrong place.

Workcover claims

This has nothing to do with the Fairwork regimes. It belongs in the various states with the work compensations authorities, or work safe. You may be able to bring a unfair dismissal or general protections claim if your sacked for being on worker compensation. Or for making a workers compensation claim. Get advice immediately for this. Again I’ll state there is a strict 21 days to lodge a claim.

help-is-a-phone-call-away
Help is there, sometimes its a journey to get there. Give us a call, we are here to help.

Conclusion

We all should be able to go to one body for all things to do with the workplace. Unfortunately its like health, you can end up with a dozen bills for the one hospital stay. We stay connected on social media, etc, etc. But when it comes to issues that matter, it appears very little progress has been made in the last 30 years.

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. All Fairwork Australia, matters including general protection claims, redundancy, probation issues. We work in all states, NSW, Vic, Qld, SA, WA, Tas, happy to help.

A article on Fair work Australia that may assist you, click here

An article on Fair work compensation, click here

How much is my unfair dismissal worth?, click here

Fair work Australia, click here

Fair work Australia, protections rights, click here

Serious Misconduct In The Workplace

serious-misconduct-in-the-workplace
Being shown the door, yes my performance wasn’t up to scratch. However I should not be dismissed for serious misconduct and lose my notice and long service leave. And have my reputation in tatters. My children don’t believe me when I tell them i didn’t take anything from the employer.

Serious Misconduct, what’s it all mean?

Serious Misconduct In The Workplace and how it applies has become more controversial as 2022 progresses. Vaccine issues, booster shots, return to work orders, working from home. Restructures, redundancies, workplaces have changed for ever. What’s it all mean?. We will attempt to unravel serious misconduct, now in 2022 the employers preference for termination, as its the cheapest. However it is the hardest for employer to prove. However when monies involved, companies wanting to improve their bottom line, they will take their chances.

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. This can 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. 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.

Female-employee-is-going-to-be- dismissed
Employer has already made up their mind you are to be dismissed. Their meeting is a scam

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.

_ Sexual harassment (Fairwork Act,2009 recently amended)

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. Serious reputation damage, social media issues, conflict of interest are also reasons cited

The reason for this article, 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.

dismissed-for-serious-misconduct
Dismissed, sacked, terminated, call it what you like. Its terrible in any circumstances. However regroup, take a deep breath, call us, we will work it out together..

Serious Misconduct In The Workplace

I have reedited the article as of the 15/3/2022. The reason being the large amounts of enquires and dismissals due to the Xmas party season and now the opening up of the economy and the returning to work. 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 dismissal for serious misconduct if your not careful.

Stress of the pandemic has take a huge human toll

Also the lockdowns, the stress of the pandemic has take a huge human toll on many, many supervisors, managers are now cranky. They are 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. Why pay for office space when your employees can work from home. However the employer is still stuck with a on going lease, and in turn has to reduce the cost somehow. We have had feedback of employees forced to assemble goods at home, or act as a pick up or delivery point to reduce cost.

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. They will do it.

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.

Be-honest-in-the-investigation-avoid- dismissal
Don’t be naïve, always prepare. Keep good records away from the workplace. Be open and transparent in any workplace investigation. Remember the Employer has to make his claim for serious misconduct, the legal onus under the Fair work Act lies with the employer. If your dismissed there is a strict 21 days to lodge a claim.

Serious Misconduct In The Workplace

Hope you found the article “Serious Misconduct In The Workplace” informative. The article was relatively brief, I wanted to sharply as I could to bring this issue to your attention. So if you get that call, “you have been suspended, stay at home”. “We will let you know what’s going on, can’t tell you at the moment”. “There will be a workplace investigation we’ll be in touch”. You know where all this is going.

Employees turn up with the thinking of day by day, do a good job and go home. There’s that adage “a fair days work for a fair days pay”. Employers plot and plan where they want to be. In some / many cases that doesn’t include you and there’s the door. More and more employers are hiding behind the Zoom. They don’t have to see you in person, look you in the eye, be a human being, a person of decency about it. You may think I’m over reacting, I’m not. I get the calls, I get the stories, the breakdowns, the stress of employees that you can literally measure over the phone.

Call us at 1800 333 666 to receive a free consultation. 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, probation, constructive dismissal, redundancy, casual employees.

An article that may interest you, social media and misconduct click here

An article on serious misconduct and workplaces click here

How much is my case worth, click here

Serious misconduct dismissal due to COVID19, click here


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