Australia: Employees should know their legal rights in the workplace

Last Updated: 27 November 2017
Article by Nathan Luke

The recent row over a young woman who was dismissed soon after making a sexual harassment complaint to a large media firm's HR department highlights the need for everyone to know their legal rights in the workplace. (See Audio recording reveals how Channel 7 cadet was dismissed soon after making harassment complaint.)

Employers obliged to investigate sexual harassment complaints

Under employment law, employers should investigate any complaints made of sexual harassment, even if other complaints are on the table.

If you make a formal complaint, the employer has an obligation to investigate. The employer has a duty of care to you in the workplace under work health and safety laws.

In one court case, an employer was ordered to pay $1.36 million for failing to act on a complaint of sexual harassment, abuse and bullying of a female employee, so the cost can be high. (See Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728.)

Don't forget that your employer is within their rights to monitor your work emails or social media posts involving work, so always be careful what you write.

Having a support person present at meetings

During an investigation, there is no legal right for a worker to have a support person present, but it is obvious from the Fair Work Act 2009 that the law expects a worker to be allowed a support person unless there are reasonable grounds to refuse one.

The support person does not necessarily have the right to be a vocal advocate, but is present in a supporting role as a witness to the discussions.

Keeping careful notes of conversations

Anyone who is hauled in to face human resources or managers over a work complaint should keep clear notes of the conversation, or ask if it can be recorded. (It can be an offence in NSW to record a conversation without the consent of the other party.)

If allegations are made against you, ask for written evidence.

What happens if you are the employee being investigated?

  • Employers will often pressure an employee to resign rather than be terminated. While there can be some merits in a resignation over a termination, a resignation will make any subsequent claim for compensation difficult.
  • You should ask for the opportunity to respond to the concerns. This might be after the meeting. Do not be pressured into giving a statement then and there. Seek legal advice first. Do not sign anything in that meeting.
  • Unless you are being fired on the spot for gross misconduct, an employer will still need to give you adequate notice of your last day of employment. If they do not want you to work out that period, they must pay you that notice in lieu of you working. You are also entitled to receive your statutory entitlements, including long service leave, which is payable in part after five years even if you are terminated.
  • If you resign, generally you are not entitled to long service leave unless you have worked for that employer for over ten years.

Employees in trouble can take their case to the Fair Work Ombudsman, Fair Work Commission or the Australian Human Rights Commission. But first, it would be best to seek legal advice on the best avenue to pursue.

Sometimes a letter to an employer from a lawyer experienced in employment law, pointing out their obligations under the law, can resolve a problem before it needs to go to such a body. Get legal advice early before you find yourself isolated or out the door.

Nathan Luke
Employment law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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