Legal complaint against Your Employer, 12 reasons to do so
In today’s workplace, you may incur a variety of reasons to sue your employer. This is not to say that legal claims against your employer are easy victories or that all such potential claims are viewed equally by courts. Rather, that you may have a good reason to lodge a legal complaint your boss is indicative of an increasing awareness in Australia of your rights as an employee. Further the fading of a workplace culture in which an employer can run roughshod over those rights. Lodging a legal complaint is a right, not a luxury.
That said, this Article will not examine in detail the evidentiary standards of each of the workplace claims described below. Instead, this Article is intended as an overview of the workplace rights that you do enjoy. And the reasons that you do have, as a result, to sue your boss. These particular reasons are not all-inclusive. They represent the most common bases for unfair dismissal and excising of rights claims in the Australian legal landscape. This a suggestive list, acting a prompter if you will. Not a users guide. Need further details look on our web site under services, and continue to search / read under the blogs. Or ring or email us.
If you have been sexually harassed by your boss or anyone else in your workplace, you may have a solid claim against your employer.
In this day and age, unwelcome advances or suggestions of “quid pro quo” for pay raises, opportunities for promotion, or even continued employment are increasingly at the forefront of public awareness. Claims of sexual harassment are more than ever seriously investigated in-house by credible businesses. HR Departments routinely now maintain workplace employment manuals which spell out processes for filing and registering sexual harassment complaints.
It is important that you pursue such remedies, documenting on your own all evidence supporting your claim and maintaining that documentation outside of the workplace. Whether your HR department takes you seriously or not, whether an effective remedy is proposed, removing you from future harm, you will have bolstered your legal case against your boss by following your company’s procedure, first, and stockpiling your evidence second. If you get dismissed through this process, take immediate action.
If the issue is not resolved, a sexual harassment lawyer or industry specialist (like ourselves) should be your next step in remedying workplace sexual harassment. You can make enquiries with the federal AHRC, in Victoria, VEOHRC, in NSW, the Anti Discrimination Board. Other states have forums to lodge.
Adverse action, retaliatory Action
As an employee, you have the right to file complaints regarding workplace rights, pending unfair dismissal, wrongful or illegal activity by your employer. (general protections action) or others both internally and to outside legal authorities. (Fair work Commission)
However, filing such a complaint may render you something of a pariah internally, or at least in the eyes of the boss engaged in the untoward activity. You can sue/ issue a complaint your boss for responding to your whistleblowing or your lawful complaint with demotion, unfair treatment, pay-decreases, workplace relocation, dismissal or other such measures.
All states have a workers compensation scheme, its with the support of a medical practitioner you have the absolute right to lodge a claim. Psychological injuries are harder to get approved by the insurer. The insurance companies managing the schemes are not your friends. Many employees get dismissed or discriminated whilst on workers compensation
Accidental workplace injuries not resulting from employer negligence are generally covered by workers’ compensation insurance. However, there may be occasions in which your workplace injury gives rise to a right to sue your employer directly. As implied above, employer negligence may provide you a cause of action for a personal injury lawsuit (or even criminal charges, depending on the level of negligence).
Workplace Discrimination Legal Complaint
If you’ve suffered discrimination in your workplace because you are a member of a “protected class,” this may provide a strong basis for legal complaint your boss. What is a “protected class?”
It is a category created by the Fair Work Act, which describes a number of protected attributes, including:
- Sexual Orientation
- Physical or Mental Disability
- Marital Status
- Political Opinion
- National Extraction
- … and others.
To sue your boss for workplace discrimination, you must typically prove that:
- You are a member of a protected class;
- Have performed your job well;
- You have suffered discrimination in the workplace; (different or less favourable treatment)
- The discriminatory treatment was a result of your membership in the protected class.
Discrimination feels obvious when it happens. But it is not always easy to prove, particularly where your boss may truthfully assert performance or competency issues that may provide a basis for some treatment or dismissal you’ve endured.
Dismissal or Forced to Resign
If you’ve been dismissed from your position for the wrong reason, you may be able to issue a complaint against your employer. The Fair Work Act likewise protects you from illegal termination.
Some of the reasons you might be able to sue your boss after being dismissed include:
- Family responsibilities;
- Poor performance—but without procedural fairness
- No valid reason given for dismissal at all.
- Non genuine redundancy
There are many more reasons for dismissal which might give rise to a right to issue a complaint against your employer .
It is important to remember, however, that you have only 21 days to file an unfair dismissal claim, so you should not waste any time to consult an experienced unfair dismissal representative to discuss your case if you feel that you have been unfairly dismissed.
Unfair Disciplinary Process
Have you been disciplined differently than your co-workers? Were you disciplined in a manner outside of the company policy outlined in your employee manual? Have you been give a fair go? Flawed workplace investigation.
Depending on the answers you may have a right to issue a complain your employer under General Protections.(F8C form)
When your boss fails to follow the company’s disciplinary policy or administers that policy in an unequal manner that results in different or less favourable treatment, you have the right to parity in the workplace—and the right to complain about your employer .
Docking of Pay
Employers are only allowed to deduct from or dock your pay under very limited circumstances under the Fair Work Act.
Employers cannot, for instance, deduct any money from your pay if:
- It benefits the employer directly or indirectly and is unreasonable;
- You are under the age of 18;
- You have agreed in writing and the deduction is principally for your benefit;
- It isn’t allowed under your registered agreement;
- It isn’t ordered by a court or the Fair Work Commission.
Likewise, the recoupment of overpayments can only be deducted from your pay if you agree in writing, among other circumstances. There are allowable deductions for business goods and services, on the other hand, or for personal items bought with your company credit card, among other things. If your pay has been docked improperly—you may be able to sue your boss.
The workplace ombudsman is a great starting point Phone 131394
We get a lot of call relating to defamation in the workplace. Defamation can be an actionable reason to sue your employer under very specific circumstances only. What is defamation? It is a factually untrue statement that results in economic or reputational damage.
Thus, comments or statements that are merely rude or less than elegant that do not result in harm beyond the “ruffled feathers” level will not be a strong reason to issue proceedings your employer. When a statement, on the other hand, results in a loss of employment, a demotion, or otherwise adversely affects the terms and conditions of your employment, you may have a cause of action for defamation.
Workplace Monitoring or Surveillance
If your employer installs video cameras around your office, is this level of surveillance a reason to sue your boss? What if the cameras are installed in the ladies’ rest room?
The Privacy Act 1988 does not provide a cause of action generally for workplace surveillance. The premises do belong to your employer, after all, and your boss is entitled to monitor your work-related activity. Your computer and network systems, likewise, may be loaded to the gills with time- and activity-tracking software and apps—and this is likely not in breach of any law.
However, there are limits to the surveillance your employer can engage in.
State laws will, beyond reasonable extents, potentially provide you a cause of action for misuse of CCTV or other workplace surveillance activity that may amount to an invasion of privacy.
Constructive Dismissal or Forced Resignation
If your employer has engaged in conduct with the intention of bringing your employment to an end or such that you had no effective choice but to resign, you may be able to sue your employer for constructive dismissal.
Underpayment of wages, for example, has been found to constitute constructive dismissal by Australian courts. Likewise, forced relocation or significant diminishment of workplace environmental conditions could constitute constructive dismissal. (Who can forget the boss’ order in the movie Office Space to hapless worker Milton that he move his desk to a dark, rat-infested basement?)
Unreasonable behaviour in the workplace that risks your health and safety may constitute bullying under Anti-Bullying Laws. You can lodge a order to stop bullying with the Fair work Commission (form F72). The technical test of bullying is it must be repeated and it must be unreasonable management action.
If you are a worker, not a member of the Defence Force, and you experience bullying in the workplace within a constitutionally-covered business, you are eligible to sue your boss for bullying.
This cause of action requires that you prove either actual harm to your health and safety or that a risk of that harm was created by the bullying behaviour. That bullying behaviour must be the cause of the threat of harm or actual harm, in other words. Don’t feel embarrassed about going to the Fair work Commission, they take bullying complaints very seriously.
Issues with Overtime Pay and Penalty Rates and Conditions
Finally, employers often err in the allocation of overtime pay and overtime penalty rates and conditions. Your boss cannot require that you abide by different rules regarding overtime pay than is stipulated by the rules and award system governed by the Fair Work Commission. It is possible that an employer stumbling through these complex rules may make a simple but potentially costly error.
It is also possible that your Employer is engaging in Wage Theft.
Overtime pay rules are enforced by the Fair Work Ombudsman. If you think that your OT has been awarded improperly, you may indeed be entitled to take action against your employer. Superannuation is grossly underpaid by some employers, check your fund statement. Many employees don’t consider their superannuation balance, its something they will consider when they are closer to retirement, by then its too late. The ATO manages the collection and reconciliation of superannuation. They are good at it.
Conclusion: 12 Reasons to issue a complaint against Your Employer
There are certainly more than 12 reasons possible for you to issue a legal complaint against your employer.
The bottom line is that, if you aren’t sure what your rights are, or if you suspect that your rights have been violated in the workplace, it may be time to consult an experienced workplace representative to discuss your legal options. If you’ve been dismissed or suffered harassment, retaliation, or any of the other events described above, contact us now to seek justice today.
We are A Whole New approach, leaders in workplace commentary, representation. All Fair work Australia regime matters, workers rights, employment rights, come to us. We are based in Victoria, we work on a national basis.
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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.