​Workplace issues

What does the law say about bullying in the workplace and unfair dismissal?

Bullying is when:

  • a person or group of people repeatedly behave unreasonably towards a worker (or a group of workers)

  • the behaviour creates a risk to health (including mental health) and safety.
The person doing the bullying could be a colleague, supervisor or manager.

Management actions that are reasonable in a workplace — such as performance management — are not bullying.

You can find out more about bullying behaviour and who is protected from being bullied from the Fair Work Ombudsman.

If the bullying includes threats of physical or sexual violence or you have been hurt or fear you will be hurt you can:

  • go to the police
  • get an Apprehended Violence Order.

What is unfair dismissal?

Unfair dismissal is where you have been dismissed from your job and the dismissal is ‘harsh, unjust and unreasonable’.

Your dismissal may be unfair if you were:

  • not told why you are losing your job

  • not given a chance to explain why you should keep your job or to improve your performance.
The law also prevents you from being dismissed because:

  • of discrimination — for example, because of your age, race, nationality, sex, gender, disability, religious belief, pregnancy, or because you are a parent or carer

  • you complain about your work rights.
You may be able to get compensation or your job back. This will depend on your particular situation, the size of the workplace and how long you have been working.

You should get legal advice or contact the Fair Work Commission or Fair Work Ombudsman to find out what you can do.

You should get advice quickly because:

  • you only have 21 days after you were dismissed to apply to the Fair Work Commission for unfair dismissal, and

  • there may be other types of legal action you could take — for example, you may be able to make a claim about discrimination.

Is it illegal to join a union?

No. Employees have the right to be a member of a union or to decide not to join a union.

If your employer fires you because you joined a union or participated in union activity, you can apply to the Fair Work Commission for unfair dismissal. Get legal advice.

My client has been sexually harassed at work. What can they do?

Sexual harassment is any behaviour that is unwelcome, unwanted, embarrassing, offensive or intimidating. It is against the law for a colleague or employer to sexually harass a person at work.

It can be sexual harassment if someone:

  • stares at you in a sexual manner

  • makes comments about your physical appearance

  • makes sexual jokes or insults

  • keeps asking you to have sex or dates with them when you have already said no

  • asks you unwelcome questions about your sexuality or private life

  • puts up sexual material up on a noticeboard or screensaver

  • sends you sexually explicit emails or internet sites

  • makes unwelcome physical contact with you.
You client can:

  • talk to the person who harassed them if they feel safe to do so, or to their employer

  • make a sexual harassment complaint to the Human Rights Commission or the Anti‑Discrimination Board of NSW

  • make a complaint about a breach of their general protection rights with the Fair Work Ombudsman or Fair Work Commission

  • go to the police if they fear for their safety or if they have been threatened or sexually assaulted.
If your client is sexually harassed at work they should get legal advice. A lawyer can help them think about what they want and help them work out what to do.

My client’s employer hasn’t paid their wages. What can they do?

If you have not been paid your wages or think you have been underpaid you can:

  • check your Award or employment contract

  • check your payslips or electronic pay record

  • contact the Fair Work Ombudsman to find out your award and pay entitlements. Tell them if you are not getting a pay slip.
If you think your employer owes you money you can:

  • talk to your employer, manager or supervisor, or your Human Resources section if you have one

  • contact the Fair Work Ombudsman — they can explain how to recover the money or they may help you do this in some cases

  • go to court — but you should get legal advice or help from your union before you do this.
You have 6 years from the date your employer owed you the money to start court action to get your wages back.

Make sure you have good records of your hours. Those hours might involve unpaid overtime payments and penalty rates. Keep a diary or use the Fair Work Ombudsman App.

Where can I refer my clients about problems at work? 

  • LawAccess NSW
    • LawAccess NSW is a free government telephone service that provides legal information, referrals and sometimes advice for people who have a legal problem in NSW.

    • It is the best place to start when you are looking for a legal service to help your client. They can refer people to their closest legal service, including their closest Legal Aid NSW office and Community Legal Centre.
      1300 888 529

  • Legal Aid NSW has employment lawyers who work in different locations.

  • Redfern Legal Centre provides state‑wide advice for international students.

  • Kingsford Legal Centre provides state‑wide advice about discrimination.

  • The Women’s Legal Service NSW provides advice about discrimination and sexual harassment to women.

  • The Human Rights Commission or the Anti‑discrimination Board of NSW provide information about discrimination and sexual harassment and about their complaint processes.

  • Fair Work Commission especially if clients have been dismissed or bullied. The Fair Work Commission can arrange free legal advice.

  • Fair Work Ombudsman for information about Awards, underpayment and other employment issues.
Site content is current as at November 2018