I was working as an operator and got put off after a week they can not give me a reason why. My brother was working

Expert's Assistant chat
Customer: I was working as an operator and got put off after a week they can not give me a reason why. My brother was working under the same superintendent at the superintendent previous previous job and made it hard for him and I feel I have been discriminated against because of my name. I want to know if I have a leg to stand on.
JA: Was there discrimination based on age, race, religion, gender, or disability?
Customer: None of the above but discriminated against my name
JA: What kind of workplace is this (private sector, public sector, etc.)? How many employees?
Customer: Mining,contracted through workpac. there are roughly thirty people to a crew and they are still advertising for people today
JA: Where are you located? Discrimination laws vary by state.
Customer: QLD
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I don't think so
Answered by John Melis in 40 mins 3 years ago
imglogo
John Melis
10+ years of experience
logo

75916 Satisfied customers

Expert in: Family Law, Legal, Estate Law, Real Estate Law, Criminal Law, Employment Law, Business Law, Consumer Protection Law, Bankruptcy Law, Traffic Law, Personal Injury Law.

logoimgimgVerified lawyers, 10+ years of experience
Chat with a Lawyer in minutes, 24/7
imglogo

Verified lawyers, 10+ years of experience

Save time and money. Get specialized help.

imglogo
John Melis
10+ years of experience
logo

75916 Satisfied customers

Jessica

Jessica

Consultant

31,131 Satisfied customers

Pearl avatar
Lawyer's, Assistant
14 Lawyers are online right now.
img

John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

img

John Melis, Expert

Based on the facts that you have raised you may have a claim for unfair dismissal; section 386(1) of the Fair Work Act sets out circumstance when an employee is dismissed.

Claiming unfair dismissal depends on the type of employment, duration, salary, occurrence of dismissal, timing, and whether the employee has sought other remedies already.

Please note There is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance. For example, there is no rule that an employee must receive three written warnings.

However, industrial tribunals over the years have consistently upheld unfair dismissal claims where an employee has not had an opportunity to respond to performance concerns or to improve their performance over a reasonable period of time.

Proceedings under the common law are available to those employees who are, for instance, capped out of unfair dismissal claims and are effectively a claim for breach of contract: for example, where an employee’s contract does not contain an express notice provision and the employee is dismissed without the provision of a reasonable period of notice. The benefit of these types of claims over unfair dismissal actions is they are not subject to the six-month maximum compensation cap. However, unlike the majority of unfair dismissal claims, generally the unsuccessful party can receive a costs order against them.

If the employee has wrongly filed a claim with Fair Work Commission, the employer then could raise a counter claim.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action: defined in s 342, against an employee who has a workplace right: defined in s 341.

An employee who has been dismissed because of a proscribed discriminatory reason under s 772 of the Fair Work Act may make an unlawful termination application to the Fair Work Commission.

An employee cannot make an unfair dismissal claim unless they have completed the qualifying period of employment, which is 6 months continuous service, in the case of an employee of a small business employer (who has less than 15 employees); or 12 months continuous service, for all other employees.

Casual employment does not count towards the minimum qualifying period, unless a casual was employed on a regular and systematic basis and had a reasonable expectation of ongoing work (s 384(2)(a)). This means that, generally, only long-term casual employees are able to bring an unfair dismissal claim.

The following employees can raise a claim where they are on award wage, enterprise agreement, and the income is less that $145,000 per annum indexed each year.

The time limit for lodging an unfair dismissal application is 21 days from the date of the dismissal, or such further period as the FWC allows in “exceptional circumstances”. Applications brought out of time will be ineligible.

Making a claim for unfair dismissal Form 2 needs the used and the application fee being paid.

Form 2: https://www.fwc.gov.au/documents/documents/forms/form_f2.pdf

The claim is then lodged through FWC:

https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/lodge-application/online-lodgment-service

Fair Work may permit a filing of a late application form but it will need to under special circumstances as set out in section 394(3) of the Act.

In mist cases where the delay to lodge the claim is not the fault of the employee, the application will be permitted.

The main point is that you file the application with Fair Work Commission as soon as possible.

Fair Work will try an mediate the situation with there employer and where that fails there will be conciliation conference, where you you can be represented by a lawyer if you need. However if the matter goes to hearing then permission is required to have a lawyer assist you at the proceedings.

Would you like to consider this option.

The claim is then lodged through FWC:

https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/lodge-application/online-lodgment-service

PART 3-2--UNFAIR DISMISSAL Legislation

http://www5.austlii.edu.au/au/legis/cth/num_act/fwa2009114/index.html

Division 1--Introduction

379. Guide to this Part

380. Meanings of employee and employer

381. Object of this Part

Division 2--Protection from unfair dismissal

382. When a person is protected from unfair dismissal

383. Meaning of minimum employment period

384. Period of employment

Division 3--What is an unfair dismissal

385. What is an unfair dismissal

386. Meaning of dismissed

387. Criteria for considering harshness etc.

388. The Small Business Fair Dismissal Code

389. Meaning of genuine redundancy

Division 4--Remedies for unfair dismissal

390. When FWA may order remedy for unfair dismissal

391. Remedy--reinstatement etc.

392. Remedy--compensation

393. Monetary orders may be in instalments

Division 5--Procedural matters

394. Application for unfair dismissal remedy

395. Application fees

396. Initial matters to be considered before merits

397. Matters involving contested facts

398. Conferences

399. Hearings

400. Appeal rights

401. Costs orders against lawyers and paid agents

402. Applications for costs orders

403. Schedule of costs

404. Security for costs

405. Contravening orders under this Part

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
I was only there two weeks as soon as he found out who I was related to I was gone. So I don't have any chance do I.
img

John Melis, Expert

On the facts you have provided, this is a form of bullying conduct which you could also raise with fair work commission
Ask a lawyer and get your legal questions answered.
See all Legal Questions
img
Related Legal Questions
How it works
logoAsk for help, 24/7
Ask for help, 24/7
Members enjoy round-the-clock access to 12,000+ verified Experts, including doctors, lawyers, tech support, mechanics, vets, home repair pros, more.
logoExpert will respond in minutes
Expert will respond in minutes
After you reach out, we match you with an Expert who specializes in your situation. Talk, text, chat, whichever you prefer.
logoSave time & money
Save time & money
No scheduling hassles, missing time from work, or expensive consults.
A JustAnswer membership can save you significant time and money each month.
img
logo 593 Verified lawyers, 10+ years of experience
DISCLAIMER: Answers from Experts on Askalawyeroncall.com are not substitutes for the advice of an attorney. Askalawyeroncall.com is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response as proposing specific action or addressing your specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances should be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on any information received from an Expert, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. The responses above are from independent, freelance Experts, who are not employed by Askalawyeroncall.com . The site and services are provided “as is”. To view the verified credentials of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service.
Explore law categories
Powered by JustAnswer