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Navigating the Complexity of Unfair Dismissal Laws in Victoria: Your Guide with Frontline Employment Defenders

Dealing with job dismissal can be challenging and emotionally draining, especially when it appears to be harsh, unreasonable, or downright unfair. Under the Fair Work Act 2009 (Cth), specific employees in Victoria have rights to compensation following such unjust termination. But does this apply to independent contractors as well?

Contrary to what some might think, independent contractors are not safeguarded from unfair dismissal. This protection extends exclusively to employees. However, the lines may blur when the relationship has been inaccurately defined as a contractor relationship instead of an employment relationship. When this occurs, the so-called ‘contractor’ who is in fact an employee, may be entitled to protection from unfair dismissal.

Renowned for our over a century-long dedication to legal excellence, Frontline Employment Defenders is the leading legal authority in Victoria. Our clientele varies from private individuals to large corporate entities and governmental agencies. We specialise in employment law, offering comprehensive advice on understanding your legal rights in cases of unfair dismissal and assisting in procuring due compensation.

Unravelling the Concept of an Independent Contractor Independent contractors enjoy the autonomy of running their own business and regulating their workflow. They offer their services to a variety of clients and are not controlled by a specific employer in terms of their work schedule or methods. Ordinarily, they enjoy the freedom to set their fees, choose how they provide their services, and work with multiple clients simultaneously.

Unfair Dismissal: Where Do Contractors Stand? There are instances where workers, despite owning an ABN and invoicing for their work, fail to meet the legal contractor criteria. They are labelled ‘contractors’ but function in the capacity of employees. This discrepancy could make them eligible for compensation.

The courts and commissions will look beyond the relationship’s label, examining the substance of the relationship to determine its actual nature. This assessment precedes the decision regarding compensation for unfair dismissal.

Employee vs Contractor: How Does the Court Decide? The court or tribunal evaluates various aspects of the working relationship to determine if a person qualifies as an employee and can thus claim for unfair dismissal:

  1. The level of control over the work performed.
  2. The ability to delegate their work.
  3. The advertising of their services to others.
  4. The exclusivity of their work for one company.
  5. The mode of payment for their work.

Remember, while labelled as contractors, individuals may still possess rights and protections in the workplace. They may also have unique responsibilities related to insurance, taxation, and superannuation.

Making an Unfair Dismissal Claim: The Clock is Ticking All employees aiming to make an unfair dismissal claim with the Victorian Industrial Relations Commission or Fair Work Commission must do so within 21 days from their dismissal date. Extensions are granted only in extraordinary circumstances.

It’s imperative to get trustworthy legal advice to determine if you’re genuinely an independent contractor or a mislabelled employee.

When Can Employees Claim Unfair Dismissal? Ordinarily, employees (excluding those from small businesses) must be in service for at least 6 months before filing for unfair dismissal. For those employed by a small business, the eligibility period extends to 12 months.

To File or Not to File for Unfair Dismissal? Unfair dismissal cases can involve intricate legalities best navigated with a lawyer. The seasoned employment lawyers at Frontline Employment Defenders are committed to providing advice on the existence of unfair dismissal grounds and guiding you on the appropriate course of action.

Our ‘no win no fee’ policy allows you to access our services in Bayswater and Kilsyth with confidence. Stand up against bullying and unfair dismissal today. Your rights are our priority at Frontline Employment Defenders.

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