Flixy

Hi everyone,

Unfortunately my husband is going through an unfair dismissal process at the moment with his ex employer. They basically made up 2 warnings that he has never seen, and said that he refused to sign them!!

If it is deemed as a small company of less than 15 employees, and he has worked less than a year, then he can't go for unfair dismissal. My husband thinks that there were more than that on the day he was sacked. We are going to a hearing in August where the employer has to prove he had less and we have to prove he had more. How on earth do we go about finding out the information??
Any help would be greatly appreciated

Bix

Is the hearing with the Fair Work Australia?

Flixy

Yes it is Bix, we had a telephone conference that was unsuccessful, we had a face to face conference yesterday and the employer is stating legal jurasdiction regarding small business laws. The company are so corrupt they will no doubt try and cook the books!

Bix

I have found the laws in Australia to be weighted in favour of employers and even when you think you are covered by something there is often an unexpected loophole allowing them to ignore their responsibilities and a total malaise amongst the government agencies who have authority to exercise it in a timely and prudent manner.

If you haven't already done so read the info on the Fair Work website.....
http://www.fairwork.gov.au/terminati...s/default.aspx

It looks like everything does hinge on whether they are deemed to be a small company and the criteria for counting the employee numbers changed on 1 Jan 2011.

I do not see that an individual can prove the numbers of employees other than to list the names of everyone he considered were employed. That too may not be possible.

I would ask the FWA for advice on how an individual employee is supposed to obtain that information.

Failing that ask the FWO. I believe the FWO has the power to walk into businesses to inspect employment records. Trouble is they don't handle unfair dismissal claims.

Yes, it's a bloody mockery but they should still try to give you advice or point you in the correct direction. (Round and round in circles possibly).

jothefw

Unfortunately I have a little knowledge of this too.

Whilst it may to appear that they employed more than 15 people it comes down to Full Time Equivalents. If you have a look on the FWA website it shows how this is calculated - it's along the lines of one casual for only 6 months in the year is equal to half a FTE.

I should think it's going to be hard to get the true figures short of a lawyer demanding the information, freedom of information act and all that.

Good luck anyway. It's a yukky, yukky process and I don't think anyone ever truely wins.

the troubadour

Have had some experience in this matter and you are at a disadvantage with the employer being a small company and that the conferences have failed to come up with any compromise.

I have the impression that the laws go far to far towards protecting the employer.
They are one step ahead in that the employee takes the initial action by having the claim lodged through Fair Work Australia to the employer who then employs a solicitor that in a sense preempts further actions.
The employee has little choice but to use legal representation which doesn't come cheap.

There is the thing also that a lot of law firms that deal with employment issues work more protecting firms rights.

Often an agreement allowing the employee to resign and no negative comments will be said by the company to any future employer will be agreed on.

Thing is sometimes it is what is not said just as damaging.......
Good luck. This goes on a lot and a lot of lies are told. So not easy being a little man against the system. See a solicitor.

furbacchione

Can you contact employees that were there at the time and get them to state the numbers of employees there were.

There would also be a tax record of who got paid and when. Not sure if you can get access to that though

the troubadour

Quite often no contact is allowed with employees. If it was on grounds og gross misconduct,which isn't very hard to get,then this will be more than likely the case.

Flixy

Thank you everyone for your input. It wasn't gross misconduct, he was given 2 fabricated warnings on the same day, one was dated when he was off sick with an work related injury. They know that we can cause a lot of trouble for them if it goes ahead, they have a contract with the education department and they have been doing work that doesn't need doing etc, my husband spoke up about it and that is why they made up warnings about lateness to sack him. They are trying everything to get out of going to a public hearing.

But even if it doesn't go ahead, the education department will be getting a call

EvannTel

Where abouts are you? If you are in a small community think carefully before taking action, especially if for punitive reasons.
In a small community it will get out in the media and will likely render your husband unemployable.
Even in a larger community what will your husband say about his dismissal to future employers? An prospective employer can ask if he has even taken such action in the past, if he tells the truth as he should he is unlikely to get employed.

Think carefully about what you wish to gain from the action. Have you suffered genuine material loss you wish to recover or is this vengeance (understandably). Your lass post re call to the education suggest rather than seek compensation you seek harming his former employer.

MY OH was grossly discriminated against by her former employer, essentially sacked her to create a position for his girlfriend. We had him on record saying if she (OH) doesn't resign he'll sack for incompetence. I was furious and wanted to bury him but in the end we suffered no real loss and while we could have cost him his job it would also have seriously tainted the OH so we choose to let it go.
It still doesn't sit well with me but unencumbered by a tribunal case my OH's career has taken off.
Do think carefully.

TiddlyPom

Shouldn't you see a solicitor?

It may be 'Wrongful dismissal' instead of 'Unfair dismissal' but you need a legal professional to tell you, not people on a website,

PamE

Sadly have to agree with many of the comments already here. We have experienced similar - also small company, also less than one year employment - and sadly the employee has no rights at all. Ours went to FWA, hearing, etc and came to nothing. We also considered the small town aspect. It was an absolute nightmare. So very unjust. Stunned that the worker has so few i.e. no rights when under 12 months, even on permanent contract. Wish could offer you positive encouragement. I do wish you all the best.

Flixy

We are in Perth, so not a small town, it is the principle that they are ripping off the education department that we are annoyed with. We all pay fees to the public schools as they are struggling as it is, and these guys don't do the job properly first time as they get paid every time they go to 'repair' something. My husband also spoke out because they refused to pay the apprentices fuel money that they were entitled to. There is a lot more to it than I have put on here, but we probably won't go through the whole thing because we can't prove it. Anyway, we are off to Bali on Wednesday, so will hopefully be so chilled when we get back we won't care!!!

PamE

We pursued it on a principle too. Don't blame you for wanting to try. Anyway all turned out so much better for us, we now say it was the best thing that could have happened as another and much better opportunity came up which would not have had if it hadn't all gone tits up in the other place

Have a wonderful time in Bali. Ubud was our last stop before immigrating. Happy memories

Flixy

You are so right, OH is waiting to hear if he has got a job with a fantastic company. They are taking up references and when my OH said that we were going to Bali, the interviewer said 'oh good, that will give me time to order your company car'. Fingers crossed he gets it!!!