Excising Your Rights in the workplace
Excising Your Rights, general protections, adverse action. or unfair dismissal what’s that mean?, how do I go about it? Lets look briefly at the history, and the benefits.
Excising Your Rights in the workplace. There’s allot of current Commentary Regarding Retired High Court Justice Dyson Heydon, a brilliant jurist, who seems not to be able to keep his hands away from the female associates. What we are currently observing is an increasing percentage of General Protection applications (F8 & F8C) involve sexual harassment / sex discrimination in the workplace. The three female employees recently received substantial payouts.
When the Fair work Act was enacted in July 2009, General Protections applications were predominately about about discrimination/ illness/ injury type issues, racism issues. This was reflected in the statistics of the various equal opportunity and anti discrimination boards. Where the number reason for the lodgment of complaints was disability and illness. Over the ensuring 11 years the claims have moved more to the “excising of workplace rights” a more all embracing approach to disputes, leading to dismissals in the workplace. Then in the last 4 years, we have found 20-30% of all dismissal claims involve some level of sexual harassment and related sex discrimination issues.
The advantage being that General Protections Application Not Involving Dismissal (F8C)
The Fair work Commission application will be processed and allocated to a Member (equivalent of a judge) of the Fair work Commission immediately. Conferences are then convened within 2-3 weeks. Whereby claims lodged with the various Human Rights and Equal Opportunity commissions around the country can vary between 3 to 6 months. Expediency is important, particularly if the employee is still turning up to work everyday.
They absolutely stressed out or waiting at home for something to be sorted out before going back to work. Many employees run out of sick pay and holiday pay while waiting for their claims to be processed or resolved. This is not the Human Rights or EO Commission’s fault, claims have to be investigated, plus they have limited resources.
Many employees in the alternative reach the point of just wanting to move on. They just want to be packaged out with a settlement amount that can see them securely into the next job. Plus a with a decent reference or statement of service. Our statistics at AWNA tell us that the longer matters are in abeyance. (wanting to be conciliated) the more the relationship with the employer is coming to a end. Dismissals for both unfair and unlawful are increasing.
The various Federal and State government’s tell the world about how they champion workers rights, yet cut the Commissions budgets. The Fair work Commission have a more direct approach, list the Application immediately, get the matter to a conference ASAP, then go from there. There are pluses and minuses in both approaches, every claim and employees circumstances are different. Choosing where to proceed with your claim is important. You have to be careful of messing up a perfectly legitimate claim by being in the wrong jurisdiction.
An example of this within the Fair work regime is different forms for same dismissal, depending of what section of the Fair work Act was breached. Get advice, study some of the articles on unfair and unlawful dismissal, and what is the difference.
Basically what are your rights
- National Employment Standards (NES) is a workplace right, to be paid properly, to not be terminated because you complained about an entitlement set out in these standards.
- Asking or complaining about not receiving pay slips.
- Insisting on OH&S standards are met, and wanting to go to an authority
- Ringing police, ambulance, or fire brigade when appropriate.
- Complaining about bullying and harassment
- Being forced into sham contracting arrangements.
- Insisting on being paid on time / paid for overtime
- Enquiring about holiday hours, sick leave hours accrued.
- Seeking legal or union advice
- Complaining about unfair disciplinary processes.
- Complaining about and insisting on training in order to satisfactory do your job.
- Inaction by an employer refusing to deal with a legitimate complain that’s leads to your dismissal.
The list is not exhaustive but you get the idea, you cannot lodge a unfair dismissal claim or general protections claim at the Fair work Commission because your have a bad day. Or someone has upset you, there are processes at the company that you need to adhere to. There are strict criteria around unfair dismissal applications, general protection and adverse actions.
Excising Your Rights / General Protections
What to do with your rights can be complex. Your job, your income, your career is important to you. Get advice on the best way to proceed, with a General Protections Application, or unfair dismissal claim. You don’t have to wait 7-10 years as with the High Court, to lodge a claim, you have the right to bring employers, and individuals to account now.
Human rights don’t end at the workplace door. Employers that honor the dignity of individual workers are more engaging, more equitable. Ultimately more successful and great companies to work for. But where do employees rights end?, The right to free speech, to say what you like in the workplace, but in reality it ends at the front gate. In finding a path forward in the workplace, its needs to be understood the employer has rights too. Generally its limited to provisions under the Fair work Act. Be careful is the point I want to make, some employees say almost anything, the way I put it, its never a problem until there is a problem.
There are other places to go in refence to workplace issues, of course these depend on what they are. You can go to the police, work safe, member of parliament, lodge a workers compensation claim. There are options, confused? Give us a call, we will help you.
In undertaking some research for this article, a lot of forums talk about what’s fair. Fairness for workers, what’s this mean?. It is all a bit vague as fair as I’m concerned. I don’t necessarily submit to this approach. You want justice and compensation or a job. Fairness doesn’t pay the bills, that I know. You’ve got to go and take it, its yours!. Talk to your employer, exhaust these options, (be professional). Go to the Fair work Commission, its your right. Members (judges) at the FWC will never criticize you for going there, its a employees right. Whether of course your their for a particular breach of the Fair work Act is the challenge
Workplace advisors: Excising Your Rights in the workplace
We are Australia’s leading workplace advisors, we are at the fore front of workplace commentary, research, and representation. We only represent employees, we are here for you, have a question, have a concern?, want to lodge a claim?, give us a call, its free, you have nothing to lose. I’m particularly interested in discussing workers rights, casuals rights and in general employments rights. Please call me, happy to chat. All Fair work Commission matters, including general protections, unfair dismissals, forced to resign, serious misconduct and investigation issues.
Call 1800 333 666, do it for yourself, your family, the community, get what is rightfully yours.
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.