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James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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I have been bullied by work sustained an injury on the

Customer Question

i have been bullied by work sustained an injury on the weekend related to work and suffered a grade 3 clavical rupture, unabling me to work and have had job threatened and sustained further injury trying to stay employed plus dont think income protection available because for several years super not up to date.
and alot more incuding they know they cant sack me on medical certificate so are trying via a disciplanary meeting they have only given me 24 hours notice for and not enough time to have legal representation present.
and so much more
clint edwards(###) ###-####
Submitted: 1 year ago.
Category: Australia Law
Expert:  James D. Ford replied 1 year ago.

Hi Clint

Where in Australia do you work? as in which state/territory?

The issue of bullying is serious, and perhaps we can discuss this over the phone.. (I will send you an offer of additional service) as you have rights to complain in this regard.

The issue of the unpaid super - can you please elaborate... if your employer has not paid your Super.. you can report them to the ATO, and the ATO will collect your Super on your behalf.

This unpaid Super, in no way impacts on your ability to obtain income protection, or workers compensation.

If you have a balance in your Super account, it would have been used to pay the income protection insurance premium... if your Super Fund offers Income Protection, and this is part of your membership.

With regard to the disciplinary meeting, your employer must always act fairly and reasonably.. including allowing you to have a support person present at any disciplinary meeting. It does not have to be a lawyer. If you want more time to select a support person or a lawyer, then write to HR requesting more time to do this.

If they refuse, it would be an example of them not being fair and reasonable.

Unless anything else has occurred previously, all they can do is issue you with a warning (which could be verbal or written), which must be very clear and specific regarding the conduct they allege has occurred.

Length of warning

Under unfair dismissal laws, there is no statutory period of time in which a warning (verbal or written) remains valid.

The period a warning remains enforceable will depend on a number of factors, including the seriousness of the problem and the nature of the offence.

Between three and eight months is usually appropriate, but will obviously vary depending on the circumstances, such as how often the criteria for satisfactory performance can be applied to an employee.

A ‘shelf life’ of a year or longer for a written warning would be considered extreme in most cases before a tribunal.

The warning should have a review date. When setting a date for review, the seriousness of the problem and the length of time the behaviour has been apparent will determine the appropriate length of a warning.

If the employee reaches the review date without re-offending in any way, the warning should be withdrawn and the employee’s employment record regarded as ‘clean’. If the employee re-offends or other performance-related issues arise after the review date, the employer could re-issue another ‘first’ warning with reference to the previous warning.

Please be aware that you DO NOT have to sign any record of the meeting they supply to you.

How big is the employer you work for? How many employees? If less than 15 than a special small business dismissal code applies... please let me know if it applies and I will send you a link to a copy.

Kind regards,