Workplace relations and employment disputes

Twomey Dispute Lawyers acts for both employers and employees in a full range of workplace and
employment disputes, unfair dismissal and general protections applications before the Fair Work
Commission, as well as disputes about restraints of trade.

Unfair Dismissal

An employee will have been unfairly dismissed if the employee was dismissed in a way which was
harsh, unjust or unreasonable.

In considering whether an employee has been unfairly dismissed, the Fair Work Commission will
take into account numerous matters including:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct
(including its effect on the safety and welfare of other employees);

(b) whether the person was notified of that reason;

(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person;

(d) any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussion relating to dismissal;

(e) if the dismissal related to unsatisfactory performance by the person, whether the person had
been warned about that unsatisfactory performance before the dismissal;

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the
procedures followed in effecting the dismissal;

(g) the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed effecting the
dismissal; and

(h) any other matters the commission considers relevant.

Even if an employee has been dismissed for doing something which would warrant dismissal, it is
possible that the way the employer goes about dismissing the employee may amount to unfair
dismissal.

An employee who has been unfairly dismissed is entitled to recover compensation from their
employer, up to a maximum of six months of the employee’s wages and entitlements as at the date
the termination took effect.

Strict time limits apply for an employee wishing to bring an unfair dismissal claim and if you think
you have been unfairly dismissed, or if you require advice about dismissing an employee to ensure
you are not liable for unfair dismissal, contact Twomey Dispute Lawyers, your specialist unfair
dismissal lawyers without delay.

General Protections

An employee may be entitled to bring an action against their employee under the general protections provisions of the Fair Work Act.

The general protections legislation provides that an employer must not take adverse action against an employee because that person has a workplace right, has exercised a workplace right, or proposes to exercise a workplace right.

Each employee has certain guaranteed workplace rights which include the right to make a complaint or an inquiry about their employment.

An employer must also not take adverse action against an employee because of a particular attribute of that person, including because of the person’s race, sex, sexual orientation, physical or mental disability, as well as other attributes of a person.

The most comment form of adverse action taken is where an employer terminates or fires an employee. It is however possible for other actions taken by the employer to amount to adverse action taken against an employee. This may include treating the employee different to other employees, not giving them their legal entitlements, offering them different (unfair) conditions of employment to other employees, or not hiring them.

Employees who have adverse action taken against them for a prohibited reason are entitled to recover compensation from their employer. Unlike with unfair dismissal there is no cap on the award of damages which an employee can obtain for breach of the general protections legislation.

Employers who are found to have taken adverse against an employee for a prohibited reason can be subjected to serious penalties, up to $63,000 for corporations, and $12,600 for individuals, for each contravention of the general protections legislation. It is also possible for individuals who are involved in a contravention of the legislation to be personally liable for penalties.

Restraints of Trade

We are often retained to advise and act on behalf of both employers and employees in relation to disputes about restraints of trade.

The overriding principles of a restraint of trade are that a restraint of trade will be invalid unless the employer established that the restraint is justified on the basis that the employer has a legitimate business interest to protect, and that the restraint is reasonable and necessary to protect that interest.

Restraint clauses are generally contrary to public policy on the basis that each person should be free to use their skill and experience to their best advantage.

That is not to say the restraint of trade clauses are unenforceable, and each matter will generally turn on the specific terms of an employment agreement, and otherwise, the particular circumstances of each case.

Restraint of trade clauses have been held to be enforceable where they go no further than is reasonably necessary to protect the legitimate business interests of the employer.

These legitimate business interests may include protecting:

(a) trade secrets and confidential information;

(b) customer, client and trade connection; and

(c) promoting stability of an employer’s workforce.

An employer will generally seek to enforce a restraint by either or both of:

(a) immediately applying to the court for an injunction forcing the employee to comply with the terms of the restraint of trade clause; and / or

(b) seeking an award of damages against the employee for any loss suffered as a result of the employee acting in breach of the restraint of trade clause, or otherwise, an order that the employee account to the employer for any profit which the employee has made as a result of the breach of the restraint of trade clause.

Whether you are an employee or an employer, our specialist workplace and employment solicitors can help you understand whether the restraint of trade clauses are enforceable, and advise you what you can do to ensure your interests are protected.