• The maximum compensation payout is six months’ salary.
• While the majority of claims settle during conciliation conferences if the claim proceeds to a hearing the commissioner can either award an amount of money in compensation or order reinstatement.
• It should be noted that the maximum payout and reinstatement are rare but it will depend on the individual facts. 

• The conciliation conference is a good chance to achieve non-monetary outcomes in addition to compensation that cannot be awarded during a hearing.
• Some common negotiated outcomes include but are not limited to:
  • the chance to tell your side of the story and hear comments from an impartial conciliator;
  • financial compensation for specific damages you have suffered;
  • a termination can be changed to a resignation;
  • agreement by the employer to provide a reference or a statement of service; and
  • a staff email sent advising of employee’s resignation. 

• The Fair Work Act defines serious misconduct as:
  • wilful or deliberate behaviour that is inconsistent with the continuation of employment; and
  • conduct that causes serious and imminent risk to:
    • the health or safety of a person; or
    • the reputation, viability or profitability of the employer’s business.
• If the employer can show that the employee engaged in serious misconduct the employee’s employment can be terminated without notice.
• The employer must still follow proper and fair termination procedures to ensure the termination is fair such as:
  • conducting an investigation;
  • informing the employee of the allegations that have been made against them;
  • providing them with an opportunity to respond to the allegations before deciding to terminate the employee; and
  • allowing the employee the opportunity to have a representative present at meetings in relation to the allegation or termination. 

• A genuine redundancy will occur when the employer no longer needs work that was performed by an employee to be performed by anyone.
• The answer here will depend on:
  • the type of employment the employee held;
  • the terms of employee’s contract;
  • the modern award or enterprise agreement;
  • the size of the employer; and
  • how long the employee was employed with the employer.
• A full time employee within a business of more than 15 full-time staff members will be entitled to:
  • annual leave;
  • any accrued long service leave;
  • a notice of termination; and
  • severance payment if employed for more than one year.
• An employee of a business of less than 15 full time staff members is generally not entitled to severance pay on redundancy.
• If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.

• The Fair Work Ombudsman has produced a table outlining 9 indicators to assist in determining whether a person is a contractor or an employee:
  • degree of control over how work is performed:
    • an employee performs work under the direction and control of employer on an ongoing basis; and
    •  a contractor has a high level of control in how the work is done;
  • hours of work:
    • an employee generally works standard hours while a casual employee’s hours may vary from week to week; and
    • a contractor decides what hours to work to complete a specific task;
  • expectation of work:
    • an employee has an ongoing expectation of work however some employees may be engaged to complete specific tasks on a short term basis; and
    • a contractor will usually be engaged for the duration of a specific project;
  • risk:
    • there is no financial risk to the employee as the employer manages risk; and
    • a contractor will bear the risk for profits or losses on each task and will have their own insurance to cover losses;
  • superannuation:
    • the employer pays the superannuation of the employee; and
    • a contractor generally pays their own superannuation;
  • tools and equipment:
    • an employee generally has either a tool allowance or the employer provides tools and equipment; and
    • a contractor generally use his or her own tools unless the contract of service provides otherwise;
  • tax:
    • the employer deducts income tax from the employee’s wages; and
    • a contractor pays their own tax and GST to the ATO;
  • method of payment:
    • an employee is paid regularly; and
    • a contractor must have their own ABN and submit invoices for work completed;
  • leave:
    • an employee is entitled to receive paid leave; and
    • a contractor does not receive paid leave.

To access a table online go to: http://www.fairwork.gov.au/about-us/policies-and-guides/fact-sheets/rights-and-obligations/contractors-and-employees-whats-the-difference

• Generally speaking the Fair Work Commission is a no costs jurisdiction. This means that each party pays for their own legal fees.
• However the commission may order an employee or employer to pay some of the other party’s costs in an unfair dismissal application where:
  • the application or response was frivolous, vexatious or did not have a reasonable cause; or
  • there were no reasonable prospects of success.
• You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.

• Sometimes an employer will request a potential employee to attend a trial when they are being considered for a job. The trial must only be to determine whether someone is suitable for the job and not for personal or business gain by the employer.
• A work trial can be unpaid if:

• it is only to demonstrate a potential employee’s skills for the position they have applied for;
• the duration is only as long as is necessary to demonstrate the skills required for the position depending on the complexity of the role and could vary from one hour to one shift; and
• the potential employee must be supervised for the duration of the trial.

• As an example if the trial is for a wait staff position at a café one hour might an appropriate period for the potential employee to demonstrate their skills. However a five-hour shift could be considered unreasonable and the potential employee should be paid for the entire shift.
• If an employer is concerned about the suitability of a potential employee they could consider hiring them as a casual employee with a probation period. 

• It is important to note that the legal working age differs depending on which state or territory you will be working in. Listed below are the contact numbers for your individual state:

• Australian Capital Territory: ACT Office for Children - Youth and Family Support – 13 22 81;
• New South Wales: NSW Office of Industrial Relations – 13 16 28;
• Northern Territory: NT Office of the Commissioner for Public Employment – 08 8999 5511;
• Queensland: Department of Justice and the Attorney-General – 07 3225 2299;
• South Australia: Office of the Employee Ombudsman – 08 8207 1970;
• Tasmania: Worksafe Tasmania – 1300 366 322 (within Tasmania) or 03 6166 4600 (outside Tasmania);
• Victoria: Business Victoria - 1800 28 287 or 03 9651 9200; and
• Western Australia: Wageline - 1300 655 266 (within Western Australia) or 08 922 7700 (outside Western Australia). 

• Generally speaking if the conduct of the employee out of work hours affects or has the potential to affect the business of the employer or the relationship between the employee and the employer then it could be used to justify termination of the employee.
• This is a complex area and each case will need to be decided on the individual facts.
• Our LegalPlan™ membership will allow you to ask lawyers for a tender or Fixed Fee Quote on your matter.
• As a precaution employees should be careful when posting material about their work online and avoid posting any material that your employer might react negatively to if they saw it.

• There is no requirement for employers to provide references for former employees.
• If an employer does provide a reference for a former employee they should ensure that the reference does not misrepresent the behaviour of the former employee to a new employer.

• Subject to what an individual employment contract or modern award stipulates the National Employment Standards set out the minimum notice requirements upon termination of employment.
• The length of notice varies from 1 week to 4 weeks depending on the period of continuous employment.
• Employees over 45 years old who have been employed for over 2 years are entitled to an extra week of notice.
• Payment of wages or salary including superannuation equivalent to the period of notice can be substituted as an alternative to giving notice.
• The same notice periods usually apply to employees upon terminating their employment.