To find out more about this area of law, please see our legal questions and answers on this topic below, or click here to see our complete list of Legal Questions & Answers.


I have just received a promotion at work and they want to put me on a new probationary period, is this allowed?
No, probation periods only relate to employees that are new to the business not new to a position to which they have been promoted. Therefore, employers should take care to ensure that appropriate consultation and fairness is given to an employee who has been promoted but is having difficulty performing in their new role.

What should I do if I am issued with a written warning?
Make sure that you read it carefully and ask for explanations of anything that you don't understand. If you do not agree with something in the letter you should respond in writing (by letter or email) and keep a copy of the letter. If you have a meeting with your employer ask for an agenda and that an independent witness be present and keep notes of what happened in the meeting. Contact us for advice.

When do superannuation contributions have to be paid by an employer each year?
Within 28 days after the end of the quarter.

How much superannuation does an employer have to pay an employee?
An additional 9% on top of the employee’s salary.

Who do the compulsory superannuation payments apply to?
Compulsory superannuation payments apply to most permanent employees over 18 years of age and under 70 years of age.

What people are exempt from receiving the benefit of compulsory superannuation payments?
Genuine independent contractors (note that people who are paid for the provision of labour are deemed to be employees and therefore eligible for superannuation payments), employees paid less than $450.00 per month, employees under 18 years of age and working less than 30 hours per week, employees 70 years and over, people doing domestic or private work on less than 30 hours per week eg part time nanny or house keeper.

How long does an employee have to lodge an Underpayment of Wages claim with the Chief Industrial Magistrate's Court?
6 years from the date that the payment was due.

Can an employee make an underpayment of wages claim even though they were not covered by an Award or Industrial Agreement?
Yes if the employer promised the employee a certain payment and it was never made the employee could still rely on the common law principles of contract to recover this payment.

I have just been sacked, I think it was unfair, how long do I have to lodge an Application for Unfair Dismissal?
In most circumstances you only have 21 days from the date the termination took place or from your last day of work (whichever occurred last) to lodge your Application. In very rare circumstances the Commission may allow an extension to this time limit if you convince them that you have a genuine, "reasonable" excuse.

I resigned from my job because I feel that my employer “pushed me out”, is there anything I can do?
It depends on the situation but you may have a claim for "constructive dismissal". Constructive dismissal is a situation where the conduct of the employer, gives the employee no other choice but to leave / resign. For example, if an employer reduces an employee’s responsibilities and the employee resigns as a result of these changes, the employer may be taken to have "constructively dismissed" the employee. If you feel that you have been ‘pushed out’ you should call us immediately for legal advice and/or assistance.

My position has been made redundant, my employer doesn’t have any other positions for me, what payments am I entitled to?
This is a complicated situation and there isn’t a simple answer. It depends on the type of employment you held, the terms of your contract or any relevant Award, how long you have been employed and the size of your employer. If you are a full time employee you will generally be entitled to your annual leave, long service leave (where you have been employed continuously for more than 5 years), notice and a severance payment (if employed for more than a year). If your position becomes redundant call us for advice.

Is every employee entitled to sick leave?
No. Casual employees receive a loading included in their hourly rate instead of receiving paid sick leave for days off. Even full time employees are not always automatically entitled to sick leave. Sick leave only becomes an entitlement through an Award, enterprise agreement or contract. Even then an employer may have the right to refuse payment if the time off is not supported by appropriate documentation. If you have problems regarding leave call us.

I was away from work for 3 days due to the flu. I was so sick that I couldn’t get to the doctors or answer the phone or the front door. When I returned to work the Boss told me that I was no longer employed there because I had “abandoned” my employment and they had tried to telephone me & had sent a courier around to my house to try to communicate with me. Can my Boss terminate my employment like this?
In order to justify their determination that you had truly abandoned your employment your Boss would have to prove that it was reasonable for them to have come to this conclusion. Your Boss would have to show that no other legitimate explanation, like sickness, was possible. Even if they could prove that their determination was reasonable your Boss would have to show why it was not feasible for you return to your old position after such a short period away. If your ill health arose from work-related psychological stress you may also have the right to lodge a discrimination complaint and other claims.

When does an employee become entitled to unpaid parental leave?
Most casual and permanent employees can take 12 months parental leave after being employed with an organisation for at least one (1) year.

Can an employer force an employee to take annual leave?
Yes. An employer can insist upon an employee taking annual leave when they have accrued 2 or more weeks of annual leave or if the business is having an annual close down eg “from Friday before Christmas until Monday after New Years day”

I have heard that a company was held liable for victimising an employee even though the employee’s allegations of discrimination and harassment were found to be false?
Yes, that is a true case. Victimisation can happen even when the complaint upon which it is based is untrue. Victimisation happens when the alleged offender threatens or harasses the complainant or others involved in the complaint. Victimisation is viewed seriously by the Anti-Discrimination Board and strong penalties apply to those who are found liable for victimising others.

I do not want compensation for being harassed I just want an apology and an assurance that it won’t happen to anyone else. Can I ask for an apology from the offender and the company?
Yes, in addition to (or as an alternative to) a monetary payment you can indicate to the offender and the company that you are seeking: 1. A verbal and/or written apology from offender and/or the company; 2. An assurance from the company that training will be undertaken by the offender and others and that a copy of the report of that training will be provided to you within a specified period. Studies have shown that in many cases the best way to resolve a matter is through the provision and acceptance of an apology.

Does a person that is being sexually harassed need to inform the offender that the offender’s conduct is making the victim uncomfortable in order for an offender to be liable for breaching harassment laws?
No. Sexual harassment includes any conduct that would make a reasonable person uncomfortable regardless of whether the offender has received a warning to stop the inappropriate behaviour complained of.

I have been dismissed from my job and am not sure if I am entitled to claim for Unfair Dismissal?
Regardless of the IR Reforms, employees continue to have considerable rights. The termination may breach obligations set out in your employment contract or the law. Remember you only have 14 days to lodge an Unfair Dismissal Claim or 60 days to lodge and Unlawful Termination Claim. If you are a state-based employee have have 21 days to lodge either claim.

Can email and computer usage be monitored in the workplace?
Only if proper disclosure of the surveillance has been made. Otherwise employers can be fined and required to destroy the illegally obtained information. Employers should have a Surveillance Policy and a Computer, Internet and Email Policy.

My previous employer is withholding my accrued Annual Leave and Long Service Leave entitlements? Is there anything I can do?
Yes, your employer must pay your leave entitlements on the day of termination. The first step is usually to send a letter of demand seeking payment. If they still do not pay, court proceedings can be commenced.

Why can't I lodge an Unfair Dismissal claim if my employment was terminated during my Probationary Period?
Probationary Periods give employers and employees the opportunity to see whether they can work together. Probationary Periods allow either party to walk away if they are unhappy. The Government has passed laws to prevent employees from being able to lodge Unfair Dismissal claims during probationary periods. However, for the probationary period to be valid the employee must know about it, and sign their agreement to it, before they accept the job. Probationary Periods usually do not exceed three (3) months.

Are all employees required by law to have a written contract of employment?
No. Many employment contracts are created verbally, through custom and law. The terms of a verbal contract are hard to prove compared to written agreements. Many jobs are covered by Awards and legislation (Annual Holidays Act, Long Service Leave Act, Occupational Health & Safety Act etc…) that automatically apply, even though the employee hasn’t signed anything.