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Kenneth Hunt
Kenneth Hunt, Principal Solicitor & Migration Ag
Category: Australia Law
Satisfied Customers: 265
Experience:  This is not legal advice. No client solicitor relationship is created. Seek independant legal advice
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I am writing to you to seek advice with regards XXXXX XXXXX

Customer Question

I am writing to you to seek advice with regards XXXXX XXXXX if I have grounds to file a complaint of unfair dismissal against my former employee.
Up to the 30/12 this year I was employed by Container Swinglift Services as their Customer Services Manager .
The commencement date of my employment was 1st September 2008 with a probationary period of 3 months.
During the time of my probation I received no formal feedback on my performance, I also received no formal training and for the majority of the time I was employed was the sole person in the Customer Services area.
Upon completion of the 3 month probation period I had a meeting with the CEO Carl Marchese .
I was advised at this meeting that my performance was not acceptable. The issues he had with regards XXXXX XXXXX performance were not directly related to any customer service issues but rather I was too defensive in my attitude to other staff members in regards XXXXX XXXXX that arose "I was very defensive in my replies". He said that I did too much of the mundane everyday queries and did not focus on the major customers; (given there was only myself within the customer services area it would have been impossible to not do these things, ). He said I was "drowning" and not coping; at no stage was there any discussion about how I was dealing with customers, in fact the day prior he had received an email from a major client praising my efforts, he forwarded it to me telling me well done.

He went on to say that due to the changes of staff and changes to duties the receptionist would come in to customer services and do some of the more mundane duties thereby freeing me up to concentrate on the higher level details.
During this meeting I was extremely upset as I this was the first time I had been told I wasn't performing to a satisfactory level I had assumed that I was doing a satisfactory job I did acknowledge that; yes I was struggling slightly due to the huge learning curve I faced and also that I was very conscious of the fact of not making mistakes.

He said to me that he was going to extend the probationary period for another month to see how I went. He informed me also that I was very reliable and cheerful which contradicted his previous comments.
I was not given any thing in writing to indicate that the probationary period was to be extended due to poor performance and at no time was there an agreement between the 2 of us as to this extension. In fact during the entire interview I was extremely tearful and upset.
On 30/12 we had a meeting and I was informed that although he felt there had been an improvement in my perfromnace he had held discussions with various people and felt that I was not satisfactory for the role and dismissed me on the spot.
They had employed a person 3 weeks prior to my dismissal; whilst I was on 4 days annual leave they placed her in my role and for a week after my return she remained in my role; when I enquired if I was doing anything wrong I was told that I was not doing anything wrong far from it but they just wanted to see what I did.
When I asked Carl how I was going and he told me I was doing well.

During my 4 months at CSS they had major staff changes of a staff of 9, 5 resigned and 1 was fired resulting in massive changes to roles and positions, the only person experienced enough to assist me is now doing 2 roles starting at 0730am and working though until 1000pm which hinders greatly her ability to assist me. My hours of work were from 0800am until 0500pm I did not get a meal break I ate at my desk whilst answering phones. I was also subjected to workplace bullying and harassment which did not help my efforts.

I need to know if I do have a case against Container Swinglift Services and if so what steps do I need to do to begin proceedings.
Submitted: 8 years ago.
Category: Australia Law
Expert:  Leon replied 8 years ago.
As the employment was for such a short period I beleive that your chances of success in an unfair dismissal claim would not be very good. The reason I say this is becaue I am assuming that your employer has paid you out some entitlements and the maximum compensation in any unfair dismissal is 6 months pay,
From what you say thought about no getting meal breaks you could be entitled to additional pay.
I suggest you contact the Workplace ombudsman and file a complaint with them and the matter shoudl be listed for mediation.
You should document in detail what was going on and if possible dates when you were not given breaks. Also set out why you believe that your dismissal was harsh and unwarranted.
I hope this is f assistance and if so please click on the accept button
Customer: replied 8 years ago.
I am sorry but I do not accept your reply, I have not been paid out any entitlements and the reason that my employment was for such a short period of time was that they dismissed me! I had read about probationary periods and how they work and in order to extend a probationary period beyond what was set out in the contract I was of the understanding that it had to be agreed by both parties and then be put in writing. amd this never occurred. Can you please remove me from your web site I do not wish to pay for advice that I believe is not of a statisfactory nature
Expert:  Leon replied 8 years ago.
I am not saying they extended your probationary period
I am sorry I could not be of more assistance
Expert:  Kenneth Hunt replied 8 years ago.


A probationary period can only be extended by agreement between the parties and this must be done prior to the end on the initial probationary period. This does not have to be reduced to writing, but it is certainly good practice to do so.


Another factor you must take into account is the business structure of the employer. The Liberal governments unfair dismissal rules still had application to corporations employment less than 100 staff and this needs to be taken into consideration.


You can lodge a claim personally in the industrial relations commission for unfair dismissal. this may be a good place to start and the commission will convene a without prejudice mediation prior to anything going to hearing to see if the dispute can be resolved. Even if successful in an action for unfair dismissal, your length of service will be a determining factor in a decision as to damages. In my view any award you receive would be at the lower end of the scale due to length of service.


You should consider taking full and thorough legal advice before commencing any action as there are consequences with regards XXXXX XXXXX unsuccessful.



Ken Hunt


Kenneth Hunt, Principal Solicitor & Migration Ag
Category: Australia Law
Satisfied Customers: 265
Experience: This is not legal advice. No client solicitor relationship is created. Seek independant legal advice
Kenneth Hunt and other Australia Law Specialists are ready to help you
Customer: replied 8 years ago.

Thank you for your reply, I accept what you have to say with regards XXXXX XXXXX I fully realise that it would be on the lower end of the scale but this is not the first time that they have done this to people they employ. I am also fully aware of the consequences if I fail and that is why I sought your advice prior to doing anything it is a great shame that the fear of having to pay legal costs prevents people for standing up for their rights and thus allows "bad" behaviour by employers to continue.


Expert:  Kenneth Hunt replied 8 years ago.
best of luck