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Executive Unfair Dismissal Solicitors - Litigation Lawyers Australia
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Our specialist executive employment law solicitors deal with executive rights relating to all Australian employment matters with a particular emphasis on unfair dismissal and unlawful dismissal. Whilst some executives will be protected by the Fair Work Act 2009, most will not be able to avail themselves of the legislation due to salary caps which will preclude all but the most junior executives. Our employment lawyers have detailed experience in offering legal counsel on executive rights. To speak to a specialist executive employment law solicitor just complete the contact form, email our offices or use the helpline.
Our specialist employment law solicitors handle unfair dismissal and constructive dismissal compensation claims for executives under the Fair Work Act 2009 (FWAct) that has been in force since 2010. Consideration of financial award might have a different benchmark for executives than a regular employee, consideration must be given by the Fair Work Commission (FWC) to all matters that are relevant during the assessment process for an award of compensatory damages, those matters could include the executives’ capacity within a company or corporation, their responsibilities and seniority, as well as the reason for an alleged wrongful termination of employment. According to law, the FWC must require reinstatement when appropriate; however, it is rarely appropriate to reinstate an executive that has been dismissed, or in the case of constructive dismissal it would almost never be considered appropriate unless there has been a change in ownership or management since the termination.
The Fair Work Act 2009 (FWA) covers executives whose employment has been terminated by reason of unfair dismissal or constructive dismissal. Compensation claims for executive unfair dismissal must comply with the criteria outlined under FWA as follows :-
- submission of FWA application within 14 days of termination
- the executive must have been dismissed rather than being made redundant
- the termination of employment must have been harsh unjust or unreasonable
- earnings below the 'salary cap' or award/enterprise bargaining agreement
- minimum 12 months employment with firm having less than 15 employees
- minimum 6 months employment with firm having 15 or more employees; and
- termination not inconsistent with the Small Business Fair Dismissal Code
Fair Work Commission Criteria
Justification of a compensation claim for unfair dismissal requires that an executive’s termination of employment was unlawful; it is a necessity to fulfil these criteria of the FWAct:
- executive must have been dismissed; it cannot have been a redundancy (or pending redundancy)
- minimum 6 months employment (firms with a minimum of 15 employees)
- minimum 12 months employment (firms with a maximum of 15 employees)
- ‘harsh, unjust, or unreasonable’ dismissal in accordance with FWAct
- in accordance with Small Business Fair Dismissal Code
- application made within a 21-day period after termination (to the FWC)
- salary must not be more than 133,000 AUD, as of 1 July 2014 (scheduled for review every July)
- covered under a “modern award” or pre-2009 award
- covered under an “enterprise agreement”
Salary Cap & Alternatives
The reality of the criteria outlined in the Fair Work Act 2009 is that most Australian executives will not be eligible for protection under the legislation mainly due to the salary cap. Most middle and senior executives will be prevented from making an FWA application however there may be alternative methods of dealing with executives unfair dismissal compensation claims that depend on contractual terms and conditions or on an enterprise bargaining agreement or on state & federal industrial instruments. The overall effect of this is that most executives will fall back on the terms outlined in their contracts of employment which may give scope for bargaining that may eventually lead to an acceptable settlement often associated with a deed of release which binds both parties.
Contracts of Employment
In addition to dealing with wrongful dismissal our executive employment law solicitors provide legal advice on executive rights relating to contracts of employment including advice prior to taking up an offer of employment and subsequent advice on the interpretation of clauses within the employment contract either during the currency of employment or after termination. We have a particular interest in matters relating to employers who seek to introduce new contracts or who unilaterally impose changes to existing contracts of employment which are almost always not in the favour off the executive who may feel pressured into agreeing less than favourable terms that are often disguised as part of a package that apparently gives benefits that are often either short term or completely worthless. If you have been presented with an agreement containing fundamental changes that is unfair or is not subject to consultation and negotiation you should take urgent legal advice.
Wrongful Dismissal
Our executive employment law solicitors deal with all matters relating to unlawful termination of employment. Australian law classifies wrongful dismissal as either unfair or unlawful :-
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Unfair Dismissal is an unlawful act that occurs when the termination of employment is harsh, unjust or unreasonable which may also applies in the case of constructive dismissal which occurs when an employers behaviour is inconsistent with employment to the extent that the employee has no other alternative than to terminate employment. Unfair dismissal justifies an application for compensation or reinstatement.
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Unlawful Dismissal is an unlawful act that occurs when the termination of employment is based on unacceptable reasons that are outlined in the Workplace Relations Act 1996 including decisions based on trade union membership, family responsibilities, pregnancy, marital status, temporary absence from work due to illness and for discriminatory reasons such as gender, age and race or nationality. Unlawful dismissal justifies an application for compensation or reinstatement.
Letter of Appointment
It is becoming the case that disputes involving executives are better settled on the basis of breach of contract rather that recourse to most statutory provisions for compensation for loss of employment which often cap the amount of the award or preclude eligibility on the basis of salary levels. Probably the most important legislation that executives rely on when pursing a claim for breach of contract against an employer is the Trade Practice Act 1974 which together with the application of case law derived from several substantial breach of employment contract cases has served to increase damages awards over recent years. Courts are now taking a flexible approach to the construction of contracts of employment and in addition to awarding damages for the breach, are also awarding damages for loss of chance and for personal distress provided that the executive has suffered a disturbance to heath or lifestyle.
A formal contract is just that and usually covers most issues that might arise between the employing company and an employee however where appointment on the basis of an exchange of letters with no formal contract, the appointment letter is often silent on a number of important matters. It is often to the executives advantage to be employed on the basis of a simple letter of appointment due to the fact that where the letter of appointment is actually silent on particular matters, then common law prevails which is often more generous to an employee than a carefully drafted contract, usually prepared by the company lawyer. An employee can sue for breach of contract on the basis of either a formal contract or on the basis of contractual terms that may be contained in a letter of appointment or an exchange of letters prior to appointment.
If you were employed by a company on the basis of a letter of appointment and the company seeks to unilaterally impose a contract of employment you should take urgent legal advice. A contract of employment will often mean that valuable common law rights are lost and the threat of dismissal upon refusal to enter into the agreement could be the basis of a claim for unfair dismissal or constructive dismissal. Constructive dismissal occurs when an employer’s behaviour is such as to repudiate the employer/employee relationship to the extent that the employee has no real alternative than to terminate their own employment by handing in their notice.
Redundancy
Our executive employment law solicitors provide legal advice on redundancy including sham redundancy whereby an employer may mask wrongful termination as redundancy in order to secure a financial advantage. It is often the case that an employee will receive a more generous financial settlement in the event of wrongful dismissal rather than redundancy which unfortunately encourages some employers to allege the existence of a redundancy situation where non in fact exists. Redundancy is defined as the situation that exists when an employee is no longer require for work because the employer no longer needs the job doing by anyone and it is only at a later date, after dismissal, that most employees realise that they have been the victim of wrongful termination dressed up to look like a redundancy. Our executive employment law solicitors will take your instructions, examine the facts and investigate the issues with a view to taking legal proceedings for wrongful termination if there has been a sham redundancy.
Specialist Employment Solicitor
Our executive employment law solicitors deal with applications under the Fair Work Act 2009 and give advice on common law rights, contractual terms and unlawful dismissal which relates to failure to comply with the Workplace Relations Act 1996 including decisions based on trade union membership, family responsibilities, pregnancy, marital status, temporary absence from work due to illness and for discriminatory reasons such as gender, age and race or nationality.
Executives that were dismissed require legal advice, which could be very urgent to their financial well-being. Take the necessary legal guidance and counsel from a knowledgeable and experienced unfair dismissal solicitor. This advice could be crucial in either negotiating that severance package and/or prior to signing any document to include a deed of release or a deed of settlement that may contain undesirable or unacceptable restrictions or a restraint of trade clause. To speak with an expert lawyer or setup a consultation, simply email our office or complete and send a contact form, or phone the helpline.
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