KPA Lawyers has represented both employers and employees in understanding their rights and obligations. In seeking the best results for our clients, we take into account the many factors which affect their case and aim to resolve their matter in the most commercial and cost effective way possible.
KPA Lawyers can assist clients with enquiries in all areas of employment law, including:
- Employment and Contractor contracts
- Breaches of Contract
- Bullying & harassment claims
- Unfair dismissal claims
- Wrongful termination
- Equal opportunity laws
- General Protections
- Award advice
Q: Am I an employee or a contractor?
Typically, an employee is someone that is hired by an employer to perform in a role which is set out in an employment contract. In theory, employment contracts have no end date and typically, the employment continues indefinitely unless terminated by either the employer or the employee. An independent contractor or subcontractor, on the other hand, provide a service for a certain period of time or until the completion of a certain project, on the basis of an individually negotiated contract with another business or entity.
Sometimes, the lines of between being an employee or a contractor can be blurred. Figuring out whether a person is an employee or a contractor (whether you’re the employer or not) is important because the categories impact yours rights and obligations. For example, an employee has their superannuation and tax paid by the employer whereas a contractor will pay and deal with these on their own and getting it wrong can result in penalties and charges being incurred.
It’s important to note that just calling somebody a contractor does not necessarily make them a contractor – when disputes arise, the Court will look at the whole circumstances of the job the person was paid to do and whether that job has the features of an employer/employee relationship or a contractor relationship.
Q: What is unfair dismissal?
Unfair dismissal refers to dismissal that is unreasonably harsh or unjust. In summary:
- The employee was dismissed;
- The dismissal was unreasonable, harsh or unjust and had no valid reason or proper grounds;
- The dismissal was not a case of genuine redundancy;
- The dismissal was inconsistent with the Small Business Fair Dismissal Code.
To be covered by the relevant unfair dismissal legislation, an employee has to have worked for the employer for a minimum period of time, which is a period of 12 months for small businesses with fewer than 15 employees, or 6 months for businesses with 15 or more employees. There is also an income threshold of $129,300 per year meaning that if you earn more than this amount, you are unable to make an unfair dismissal claim.
An Application to the FairWork Commission regarding an unfair dismissal claim must also be made within 21 days of the dismissal.
If you are concerned regarding a dismissal, you can contact our solicitors who will be able to give you some preliminary advice as to the merits of the unfair dismissal claim.