The Law Handbook 2024

Chapter 11.6: Protection for your rights at work 1067 award payments or payments in excess of the award entitlement. The employee can also proceed in this way to recover the amount provided for in a modern award where a term of the contract of employment was that the employee would receive the amount payable under a modern award. Proceedings for the recovery of a contractual debt are usually commenced in the Magistrates’ Court, or County Court or Supreme Court, depending on the amount in dispute (see Chapter 1.2: An introduction to the courts). Proceedings may be brought up to six years after the date payment was due. If no wage rate is fixed or agreed, the employee can sue for a reasonable price for the services rendered once the contract has been terminated. Where the employee concurrently wishes to make a claim in a federal court (e.g. for a breach of the NES), the employee may also bring a claim for the recovery of a contractual debt as an ‘associated claim’ in the same federal court. Small claims Under section 548 of the FW Act, employees can choose to take their own legal action to recover employment entitlements – up to a maximum amount of $20 000 – using the small claims process. The small claims process is quicker, cheaper and more informal than regular court proceedings. The aim of the small claims process is to settle disputes quickly and fairly with minimum expense to the parties. Matters are usually resolved with only one hearing. The simple process means there is usually no need for the involvement of lawyers. For more information about making a small claim, see the Fair Work Ombudsman’s guide ‘Taking legal action in the small claims court’ at www.fairwork. gov.au/workplace-problems/fixing-a-workplace- problem/resolving-disputes-with-our-help/legal- action-in-the-small-claims-court. Insolvent employer compensation scheme The Fair Entitlements Guarantee Act 2012 (Cth) (‘ FEG Act ’) provides the Fair Entitlements Guarantee Scheme ( FEGS ) to compensate employees who have lost wages and/or other entitlements due to an employer’s insolvency or bankruptcy. FEGS is administered by the federal Attorney- General’s Department and applies to the employees of an employer who became bankrupt or entered liquidation on or after 5 December 2012. Decisions made under FEGS can be reviewed internally (s 38 FEG Act) and externally by the Administrative Appeals Tribunal (s 40 FEG Act). For more information about the scheme, see www.dewr. gov.au/fair-entitlements-guarantee . Termination of employment Introduction Most claims in relation to termination of employment fall into three categories: 1 unfair dismissals under the FW Act; 2 dismissals prohibited under the FW Act; and 3 common law claims for wrongful dismissal. This section deals with unfair dismissals under the FW Act and common law claims for wrongful dismissal. (For information about dismissals prohibited under the FW Act, see ‘General protections’, below.) This chapter does not discuss claims under other legislation relating to termination of employment (e.g. the Competition and Consumer Act 2010 (Cth)) and equal opportunity legislation (see Chapter 11.1: Discrimination and human rights). Unfair dismissal under the Fair Work Act Unfair dismissal criteria Under section 385 of the FW Act, a person has been ‘unfairly dismissed’ if all of the following apply: • the person has been dismissed; • the dismissal was harsh, unjust or unreasonable; • the dismissal was not consistent with the Small Business Fair Dismissal Code (which is only relevant where the employer has fewer than 15 employees); and • the dismissal was not a genuine redundancy. Has the person been dismissed? For the purpose of section 385 of the FW Act, a person has been dismissed if they: • were terminated at the employer’s initiative; or • were forced to resign because of the employer’s conduct or course of conduct (s 386).