What is Employment Law?
Employment law protects the rights of both the employee and the employer. The experience of a good employment lawyer is important in evaluating and negotiating the terms of any new employment contract or agreement. Understanding the terms and legality of the contract, as well as your legal rights prior to signing is important before you accept any job.
Employment in Melbourne is protected in a variety of ways ensuring that employers are providing adequate internal resolution of employee concerns, lawful and fair employment expectations, and lawful dismissal while following requirements of compensation.
Employment law is taken seriously in Melbourne and choosing the right lawyers to review your concerns, claims, and ensure the law is working on your behalf is important before, during, and after employment.
Employment Contract Lawyer Melbourne
LGM Advisors is one of Melbourne’s most sought after employment lawyers in Melbourne. See below for examples of how our expertise may assist you.
Review of employment contracts
The contract of employment is the bedrock of a formal relationship between employer and employee. It must make the terms and conditions of the employment clear, stipulating the inherent requirements of the position, and responsibilities of both parties in relation to the most important aspects of the employment relationship.
It is important to note that there is no legal requirement for employment contracts to be professionally drafted or reviewed. This is the reason that many businesses make do with publicly available templates or hastily drafted agreements. In reality, such contracts often lack the required specificity to pinpoint where a breach has occurred and leave the parties vulnerable to the unneeded expense of legal disputes.
As experts in commercial and contract law, LGM Advisors have the expertise required to formulate or review employment contracts to ensure that they will serve their intended purpose. This allows the employment transaction to proceed, and indeed end, smoothly as required.
Employment Contract Law
Employment contracts can be complicated, and at times difficult to define once a claim has been filed due to the nature of the agreements themselves. Employment contracts can be either in writing or oral, as well as oral and partially written.
They are not necessarily limited to a single document, yet are often found in multiple documents such as the initial work agreement, policies, job descriptions, work processes, and additional training. The law not only protects big-company based employment, but also freelance, and independent contractor agreements. By utilising an employment law professional, like LGM Advisors, you will have access to the expertise and legal experience in employment law.
Prior to starting a job, it is important that you understand the terms of your employment agreement, as well as the consequences for breaching that agreement, a statement often ending up to and including termination. While used often in policies it should not be held lightly.
Breach of Employment Contract
A breach of employment contract occurs when one party does not act in accordance with the employment agreement. The law is situated to protect the employee from unlawful acts which lead to personal damage, such as termination due to harassment, various discrimination, or other agreements stipulated in the contract.
However, the law also protects nontraditional workers from employers who demand work outside of the agreement and workers who do not fulfill their work in accordance with the agreement. Documenting why you feel a contract has been breached, the discussions, and any evidence you may have will help a lawyer better evaluate your situation and recommend a path forward.
Many employers are unaware, or uncertain, of their lawful requirements. Utilising a qualified legal team can help you benefit from Alternative Dispute Resolution in many cases, preventing the need to go into litigation.
While it is important to do your diligence in understanding the full scope of your employment contract, one of the more vital components of the contract is the non-compete agreement. This is important due to the implications concerning other employment after working with your current employer.
The non-compete agreement is a post-employment agreement usually stating you will not work for, or set-up, a competing business within a geographic region and for a stipulated period of time. Often a company will require potential employees to sign this agreement due to concern over intellectual property rights. However, if you leave this employer you may find yourself in a bind as your expertise and skills may be entirely lent to your previous employer’s industry.
If you feel the non-compete agreement within your contract is unreasonable, you should consider negotiating the agreement prior to signing your employment contract. While you may not be able to remove all aspects of the non-compete, negotiating a reasonable compromise is possible. Contacting an employment lawyer in Melbourne, like LGM Advisors, will make the process easier as well as the reassurance that you are getting professional advice.
Workplace Bullying Lawyer Melbourne
Also known in employment lawyer Melbourne terms, workplace harassment, workplace bullying is more common than you may think often leading to stress in the workplace, and sometimes more harmful consequences. Bullying is when a coworker, whether colleague or leader treats an employee in such a way that it is considered unreasonable, leading to a risk in health and safety. The following are examples of behaviour that may, in legal terms, constitute bullying/harassment in a workplace context:
- Spreading malicious rumours or causing serious damage to an individual’s reputation.
- Harassment in the forms of written or verbal communications. This includes email and social media, as well as direct verbal or other harassment.
- Exclusion of a certain employee from employee functions or events, without providing valid justification for that exclusion.
- Repeated demands that an individual be required to complete an unreasonably large amount of work without support or assistance that would normally be required.
If you feel you may be subject to workplace bullying a legal consult can help you establish your claim and determine if your employment is covered by the Federal Anti-Bullying Law, is unreasonable, creating a risk to your mental or physical wellbeing, and is likely to continue without intervention.
Workplace discrimination law
Australian law prohibits workplace discrimination based on specific attributes, such as gender, race, age, political or religious beliefs, and disabilities. Discrimination can come as a result of demotion, unwarranted poor reviews, termination, or standing in the way of potential opportunities.
Workplace discrimination can occur to anyone in the workplace regardless of position, rank, or duty. The laws in place look to ensure every employee has the same rights and protections while at work.
Sexual harassment law
Sexual harassment is any conduct viewed as an unwelcome sexual conduct or advance. It is not subject to gender or position. Sexual harassment is often treated severely by companies as if a company cannot prove they took reasonable steps to prevent the conduct, the company is also held liable.
In addition to sexual harassment, victims and witnesses to sexual harassment are protected by coming forward to report such misconduct at work. Much like whistle-blower protection, all employees have the right and are protected by coming forward against a company or individual. Any threat perceived as detrimental to the employee or the employee’s job would be considered for victimisation.
Dismissal and redundancy law
Dismissal and redundancy laws protect employees who have been forced to retire or vacate their position, unlawfully terminated, or terminated due to a position no longer being available. The laws on dismissal and redundancy are clear, and if you feel as if you have been wrongfully dismissed, or your dismissal benefits were not satisfactory, it is imperative you act quickly. There are only 21 days from dismissal for you to file a wrongful dismissal claim.
Unfair dismissal law
Unfair dismissal occurs when an employer dismisses, or terminates an employee from their position in such a way that it is considered harsh, unreasonable, or unjust and the dismissal was not due in part to redundancy.
The Fair Work Act 2009 legislates quite extensive remedies for any employee able to demonstrate their unfair dismissal. Primarily, this legislation seeks reinstatement of the dismissed employee as its primary remedy in the case of unfair dismissal. However, this is often not realistic as the dispute between employee and employer as part of an unfair dismissal claim can be very damaging to the bilateral relationship between these parties. As a result, monetary compensation is a primary remedy sought by unfairly dismissed employees who are able to demonstrate that their case is valid.
To determine if you have a claim for unfair dismissal you must be able to show
- Your termination was not justified due to your position and conduct leading up to the termination i.e., the employer is unable to specify a valid reason for having dismissed an employee.
- You were not notified of the reason for termination, and there is proof that no genuine redundancy was the cause.
- You were not given sufficient opportunity to respond to the accused reason for termination.
While the laws vary slightly depending on the size of your company, they are in place to protect the employee, and quick action as well as evidence you provide will be essential to your claim. For example, small business unfair dismissal laws are legislated through the Small Business Fair Dismissal Code. This legislation enables unfairly dismissed small business employees to seek remedies whilst protecting small businesses from unjust claims. In short, for an unfair dismissal case to be brought against a small business, the Small Business Fair Dismissal Code requires that the following be demonstrable:
- The employee was not provided with the required length of notice prior to being dismissed.
- Termination stemming from non-disability/illness related incapacity, unsatisfactory performance, or poor conduct, must be preceded by formal warnings to the employee in question. The opportunity to give responses to these warnings must also be provided for any eventual dismissal to be lawful.
- If an employee is summarily dismissed, that is without warning or notice, the employer must demonstrate their reasonable belief that the dismissed employee was involved in misconduct serious enough to warrant summary dismissal as stipulated in the employment contract. Common examples of serious misconduct include theft, sharing confidential information, or causing serious reputational damage to the employer.
Wrongful dismissal law
While unlawful dismissal is the “how” of your termination, wrongful dismissal is more of the “why” of your termination. Wrongful dismissal is the breach of an employment contract by the employer, leading to your dismissal.
Unlawful dismissal is typically resolved in one of two ways, and is best done so with the help of an employment lawyer if your matter is complex. You can either seek to be compensated by your previous employer for damages sustained as a result of your termination. Alternatively, you can request to continue within the scope of your current contract. In this case you still have the opportunity to receive compensation for damages including time-lost wages.
Unlawful Termination Lawyer Melbourne
Unlawful termination is when an employer terminates an employee in such a way that the employer has broken a law. Unlawful termination can be a result of discrimination, protected absences, non-membership of a trade union, or filing a complaint for breaking the law.
Unlawful termination protects an employee from unlawful acts by a company and is protected under the Fair Work Act 2009 (Cth). In all claims you will need to prove that your employment was terminated due to the criteria of unlawful termination and not as a result of your work performance or behavior.
Dismissal by redundancy is a complex situation. There are two factors you are evaluating. The first is whether your position was actually made redundant, or if you were simply dismissed under that pretence. The second is if your position was made redundant, were you adequately compensated for your dismissal, as in receiving your entitlements and full redundancy pay.
Companies often do not fully understand the law and obligations they have when making a position redundant. Like all unfair dismissal claims you must act quickly and discuss your situation and options with a lawyer.
Employment law is not always understood by the employee or the employer. As is the case it is important that you review your contract or agreement prior to committing to a new job, as well as understand the expectations of your work, and consequences for not upholding the employer’s policies and requirements, as well as the laws protecting you.
An employment lawyer Melbourne expert can help you determine if you have a claim to file against an employer based on your evidence, as well as help you file that claim within the mandatory 21-day limit from time of dismissal. A lawyer can also suggest a strategy going forward and represent you in litigation if your claim cannot be resolved in alternative dispute resolution.
LGM Advisors is a trusted Melbourne law firm, providing expert employment Law services. LGM Advisors have the skills, experience and expertise to ensure that you and your employment contract matter is consulted upon with the utmost professionalism. Contact LGM Advisors and speak to an employment contract lawyer today on (03) 9832 0608 or by email at email@example.com.
- Workplace Discrimination Law in Melbourne
- Unfair Dismissal Law in Melbourne
- Contractor and employee law in Melbourne
- Commercial Law in Melbourne