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Case studies

These case studies can assist in identifying unlawful workplace behaviour, suggests strategies to deal with these behaviour and where to find help.

Jing is injured at work

Jing works in a restaurant. One day, while she is washing dishes, Jing slips on the wet floor and hurts her ankle. Jing finds it hard to stand up as her ankle is too sore.

Jing goes to the doctor. The doctor tells Jing that she must tell her boss and that her boss should report the injury to its insurance company. The doctor also tells Jing that she must take time off work until she can stand without hurting her ankle.

At work the next day Jing tells her boss about the injury. She also tells her boss what the doctor said about reporting it to the insurance company and taking some time off. Jing's boss gets angry; he says "This is not my problem; it's your fault if you slip on the floor. How do I know you even hurt your ankle at work? You can take time off but I will not pay you if you take any time off."

Jing is not sure what to do – she can't afford to take time off work and not get paid for it.

What can Jing do?

It's your employer's job to make sure you are safe at work. Everyone has the right to a safe workplace. If you think there is something at work that is not safe you should tell your boss. In Jing's case, if she sees that the floor gets wet when she washes up she could ask for a rubber mat to be put near the sink. You should not get into any trouble because you ask for something dangerous to be fixed at work.

If you are hurt at work you should tell your boss as soon as possible. Usually your boss will ask you to fill out an incident report. Your boss should also report your injury to their insurance company. In NSW all workplaces must have insurance in case an employee gets hurt at work – it doesn't matter who's "fault" the injury is.

Like in Jing's case, if your boss does not report your injury to their insurance company you can call Workcover NSW on 13 10 50. Workcover NSW might be able to give you the insurance company's details. Jing could tell the insurance company about her injury herself.

Usually if you are injured at work you can apply for Workers Compensation. Workers Compensation is paid by your employer's insurance company and usually pays you for some of the wages you miss out on if you are injured and can't work, as well as for medical costs. Once you have reported your injury you should go and see your doctor. You must tell your doctor if you hurt yourself at work so that they can use the correct WorkCover NSW forms.

If your doctor thinks that you are not well enough to work, they will give you a medical certificate which says how long you would need to take time off from work. On the other hand your doctor might think that you are well enough to do some work subject to restrictions or 'light duties'. For example, your doctor might say that you cannot lift anything heavier than 5kgs or that you should not stand for more than 30 minutes at a time.

You will also need to give your doctor a permission to give details of your injury to your employer's insurance company.

Yifei is unfairly dismissed

Yifei works as a cleaner at the local shopping centre. She mainly works at night when the shopping centre is closed. She had worked for the cleaning company for two years without any problems. However, a few weeks ago Yifei was given a "Final Written Warning" for poor performance. Yifei has never been given any warning before. Yifei is very worried about her job and does not really understand what she has done wrong.

One night after work Yifei is called to the cleaning company's headquarters to meet with her boss. She isn't told what the meeting is about in advance. At the meeting her boss tells her that her performance is not good enough and they have decided to dismiss her. Her boss tells Yifei she will be paid 2 weeks of wages and that tonight will be her last night of work.

What can Yifei do?

There are two main reasons why a person might be dismissed – conduct and capacity. Conduct is your ability to follow the rules at your workplace, for example, by arriving on time, wearing the correct uniform or being courteous to your workmates. Capacity is your ability to do your job well. These include the ability to working quickly or without mistakes.

Employers are allowed to talk to their employees about their conduct or capacity and tell their employees if they need to improve their performance. Sometimes if you're not doing things well at work you will be given a 'warning' in writing. There are no laws that say a warning must be in writing or that you need to be given 3 warnings before you can be dismissed. How much warning is fair will usually depend on how serious the problem is. Sometimes, if you breach or commits serious wrongdoings (such as breaking safety rules or stealing) you could be dismissed without any warning.

If you are doing something wrong at work you should usually be told what it is you have done wrong and what you need to do to improve. You should also be given a chance to explain your side of the story.

If you are dismissed and you don't think the reason you were dismissed, or the way in which you were dismissed, was fair you might be able to make a complaint for unfair dismissal. Not everyone can complain about unfair dismissal – it depends on how long you have been employed and how many other employees are at your work. You should get legal advice if you're not sure whether you can apply. To complain about unfair dismissal you must file an application with Fair Work Australia within 14 days of your dismissal. It is very important that you meet this time limit because otherwise Fair Work Australia might not deal with your case. You can get a copy of the application form on Fair Work Australia's website www.fwa.gov.au.

If you think you have been unfairly dismissed you should try to get legal advice as soon as possible. You can get free legal advice about unfair dismissal from a local

Community Legal Centre or Legal Aid NSW. You can visit the Law Assist website for more information about unfair dismissal.

Sue is being underpaid

Sue has worked in a fruit and vegetable shop for 3 years. She works Tuesday to Saturday - 38 hours per week. Sue is paid $10 per hour regardless of how many hours per week she works.

What can Sue do?

In Australia, Fair Work Australia decides the minimum wage that people should be paid depending on what type of work they do – an employer should not pay you less than this minimum amount. Fair Work Australia set out the different rules for how much employees should be paid in documents called Modern Awards. There are different Modern Awards for different industries – such as the retail, cleaning or restaurant industries.

You can call the Fair Work Ombudsman on 13 13 94 to find out what Modern Award covers your type of work.

The amount in your Modern Award will be the same as, or higher, than the Minimum Wage. The minimum wage usually changes on 1 July every year. At the moment, the minimum wage is $15.96 per hour or $606.40 per week for a 38 hour week.

In Sue's case, she is most likely to be covered by the General Retail Industry Award 2010. Under the General Retail Industry Award 2010 Sue should be paid at least $17.52 per hour.

Modern Awards also include rules about whether an employee must be paid extra to work at night or on weekends. These are called penalty rates. In Sue's case, because she works on Saturday she should be paid an extra penalty rate of 25%. That means that on Saturday Sue should be paid at least $21.90 per hour.

You can make a complaint to the Fair Work Ombudsman if you have been paid less than the minimum wage or your Modern Award. The Fair Work Ombudsman can investigate your complaint and try to get your employer to pay the money they owe you. If your employer does not agree to pay you the money they owe you, the Fair Work Ombudsman might take your case to the Court. If they don't, you can take your case to court yourself, although you might need some help from a lawyer. You can speak to a lawyer for free at a local Community Legal Centre or at Legal Aid NSW.

Wei Ling works for a trial period

Wei Ling applied for a job in a factory packing boxes. The boss told Wei Ling that she would be "on trial" for 3 days. The factory is very busy and there are lots of new people, just like her, that are on a 3 day trial. During the 3 day trial, Wei Ling and the other trial employees have to pack boxes for a big shipment that has just come in.

At the end of the 3 days, when the big shipment has all been packed, the boss tells Wei Ling that he was not happy with her performance and that she did not pass the trial. None of the other trial employees received ongoing jobs either.

Wei Ling and the trial employees think the boss has just taken them on to pack the big shipment and that he wasn't really trialling them at all. They are very upset because they have not been paid for the 3 days of work they did.

Should Wei Ling get paid for trial work?

What can Wei Ling do?

An employer is allowed to trial an employee – this is usually called a "probationary period". A probationary period gives the employee a chance to decide whether they like the type of work they are doing and whether they like the workplace. A probationary period gives the employer a chance to see how well the employee can do the job.

You should always be paid during your trial or probationary period. It is against the law to make someone work and not pay them. It is against the law to tell someone that in order to get an ongoing job they must do an unpaid trial.

Wei Ling and the other trial employees could contact the Fair Work Ombudsman and tell them about the unpaid trial. The fact that they are all making complaints together may make their case stronger.

If the employer does not agree to pay Wei Ling the money they owe her, the Fair Work Ombudsman might take the case to the Court. If they don't, Wei Ling and the other trial employees can take their case to court themselves, although they might need some help from a lawyer. You can speak to a lawyer for free at a local Community Legal Centre or at Legal Aid NSW.

Lisa wants to take parental leave

Lisa has worked in a laundry service for 3 years. One day, she tells her boss that she is pregnant.

When she is 7 months pregnant Lisa begins to find the long hours too tiring and she starts feeling unwell. Her doctor tells her that she should not be working as it is dangerous for the baby and for her. The doctor gives her a medical certificate that says this.

Lisa tells her boss that she is not feeling well and that she needs to take some time off. She gave the medical certificate to her boss. She said that she would like to come back to work when the baby is 6 months old.

Her boss is angry about this. Her boss tells her that they cannot afford to have anyone taking time off from work. Her boss says "we can't hold your job for you, you need to resign and you can reapply for the job when you are ready to come back".

Can Lisa take time off work or does she need to resign?

What can Lisa do?

The National Employment Standards set out what rights a pregnant employee has and what rights the parents of a newborn baby have. Employers have to comply with the National Employment Standards.

Employees who have worked for more than 12 months have the right to take up to 12 months off work to care for a new baby. This is called unpaid parental leave. The 12 month period can start before the baby is born if a doctor says you are unwell due to pregnancy. You can share unpaid parental leave with your partner if you want – for instance, you might take 3 months off work and your partner might take 9 months off work. You should let your employer know in writing if you want to take unpaid parental leave. You should try to tell your employer at least 10 weeks before you plan to take unpaid parental leave.

At the end of the 12 months you can return to your old job. Your job must be kept for you. You should not lose your job, be demoted or paid less when you return to work.

If you have problems at work because you are pregnant, want to take parental leave or want to return to work after taking parental leave you should speak to a lawyer. You can speak to a lawyer for free at a local Community Legal Centre or at Legal Aid NSW.

If you are an Australian resident (this includes some types of Visas) and have a new baby you can also get Paid Parental Leave. You need to have been working before you have the baby to be eligible. You can talk to Centrelink about whether you can get Paid Parental Leave (or some other type of payment). If you are eligible you will receive 18 weeks of pay at the minimum wage. At the moment the minimum wage is $606.40 per week.

Is Ling a casual or permanent employee?

Ling has worked in a factory assembling lights for 13 years. She has been called casual but she works 5 days a week, 8 hours per day. Ling is paid the minimum wage per hour. She doesn't get paid when she takes time off when she is sick nor is she given annual leave. Ling doesn't have anything in writing that says she's an employee of the Company. What can she do?

What can Ling do?

Because Ling has worked for 5 days per week for so long, it is likely that she is a "permanent" employee. This means that she should be paid for personal leave (when she is sick or she is caring for someone who is sick) and for annual leave (when she wants some time off, for instance, to go on a holiday). Permanent employees who work at least 38 hours per week are usually called "full time" employees. Full time employees should get at least 10 days of personal leave and 20 days of annual leave each year.

Since Ling has worked in the factory for 13 years, she is entitled to paid long service leave. Casual employees who have worked continuously for the company for more than 10 years will also be entitled to long service leave. You will usually be entitled to long service leave after you have worked somewhere for 10 years. After working for an employer for 10 years you are entitled to long service leave of one month of time off work with pay.

If you don't think you have been paid for annual leave, personal leave or long service leave you can lodge a complaint to the Fair Work Ombudsman on 13 13 94. You can also speak to a lawyer for free at a local Community Legal Centre or at Legal Aid NSW.

It can be hard to prove that you have worked somewhere when you don't have a written contract or payslips. By law, your employer doesn't have to give you a written contract but he or she needs to give you payslips. If your employer refuses to give you payslips you can complain to the Fair Work Ombudsman.

Other ways you can prove where you work include:

- Reporting your income to the Australian Taxation Office (even if you are paid "cash in hand") and keeping your tax records;

- Keeping a copy of the job advertisement, if that is how you found the job;

- Keeping a diary of the days and times you worked and how much you got paid;

- If you receive cash in hand, deposit your wage into your bank account and keep copies of the bank statements; and

- Finding workmates, friends, family members or customers who can confirm you worked there.

Karina wants to be paid superannuation

Karina is 24 years old and has just started a new job in a restaurant. When she started her boss asked her to fill out a Tax File Declaration. Karina asked her boss whether or not she should also provide her superannuation details but her boss said that she would not be paid any superannuation.

Karina is not sure about her superannuation entitlements.

What can Karina do?

Any employee who is between 18 and 69 years old and paid $450 or more (before tax) in a month is entitled to Superannuation. This means your employer must pay an additional 9% of your wage into a superannuation fund. You will be able to access this money when you retire. Until then your superannuation fund can invest the money for you. You should contact your superannuation fund for details about how your money is invested and to make sure you receive statements. Your statements will show how much superannuation your employer has paid on your behalf, what fees you are paying and how your investments are performing.

Some Modern Awards have extra rules about superannuation. For example in Karina's case, the Restaurant Award says that employees who make more than $350 per month are entitled to superannuation.

If you are not getting paid any superannuation and your employer will not agree to pay you, you should report this to the Australian Taxation Office on 13 28 61 or 13 14 50 (for multilingual).

Aimee feels discriminated against her

Aimee works in a factory and she speaks very limited English. Due to her limited English she finds it hard to understand her supervisor's instructions and she has often been called "stupid Chinese". Aimee feels like she's treated unfairly because she is often asked to do heavy lifting and cleaning while other workers don't have to. Aimee is the only Chinese worker in her part of the factory.

Aimee is upset because she feels she is treated worse than employees who are not Chinese.

What can Aimee do?

Discrimination at work can happen when you are treated less favourably than other employees because of your race, sex, pregnancy, disability, sexuality, age or carer's responsibilities. Discrimination is a complicated area of law and you should try to get legal advice about whether or not what is happening to you is discrimination. You can speak to a lawyer for free at your local Community Legal Centre or Legal Aid NSW.

In Aimee's case being called names and being made to extra work because she is Chinese might be discrimination.

If you feel you have been discriminated against at work and you can't solve the problem by talking to your employer, there are three places where you can lodge a complaint: Fair Work Australia, the NSW Anti-Discrimination Board and the Australia Human Rights Commission. You can only choose one of the three places to lodge a complaint. It is best to speak to a lawyer to work out which option is best for you.

Surveillance in the workplace

Cindy has been working for two years in a production line in a clothing factory. She has recently noticed surveillance cameras are being installed around the factory. She was not told they would be installed and believes that her employer is using the cameras to monitor her and the other employees.

Cindy does not feel comfortable working while being filmed and wants to know her rights as an employee.

What can Cindy do?

If your employer wants to install cameras at the work place, he/she needs to give written notice at least 14 days before installing them. Cameras should be clearly visible and your employer should display a clearly visible sign notifying you that cameras are installed. Cameras should never be installed in bathrooms, showers or change rooms. You should also be consulted before cameras are installed. If you are a member of a Union, the Union may be able to talk to your employer about your concerns.

If you start to work for an employer who already has cameras installed you should make sure there are clear signs up.

The film footage should only be used for a proper purpose related to the workplace – for example, to check employees are following safety rules. If you are worried about what your employer might do with the footage you should get legal advice. If your employer doesn't notify and consult you and other employees before installing the cameras you should also get legal advice. You can speak to a lawyer for free at your local Community Legal Centre or Legal Aid NSW.

Jenny is made redundant

Jenny had been working in a clothing factory for 5 years. For the past 6 months, she has noticed that her boss had not been paying her wages on time. Two months ago, when she went into work all her colleagues were standing outside the factory, looking worried and upset. The factory had closed down without any notice and no one was able to reach the boss. Ever since, Jenny has tried to call her boss but can't get through. Jenny feels very lost and doesn't know what to do. She was hoping that the factory would reopen or someone would take over the business so she can continue to work but at the moment, it doesn't seem likely.

Jenny wants to know what her entitlements are, if any.

What can Jenny do?

A company can go into liquidation or a business owner can become bankrupt when they cannot pay their debts. Debts include employee wages and leave entitlements. If you're employer can't afford to pay anyone to do your job anymore your job might become 'redundant' – if there is no other work for you to do in the company you can be dismissed – this type of dismissal is called a redundancy or retrenchment.

If you are a permanent employee like Jenny, you should receive notice and may receive redundancy pay if you are made redundant. You should also be paid any outstanding annual leave and long service leave you are entitled to. In some cases smaller companies and businesses do not need to pay redundancy pay but they still need to pay you for annual leave and long service leave.

However, in some circumstances, the employer may not have enough money to pay employees' outstanding entitlements. These may include wages, unpaid annual leave and redundancy pay.

If your employer is in financial difficulty, you should speak to a lawyer at your local Community Legal Centre or Legal Aid NSW. You may need to fill out a "proof of debt" (a form that explains why your employer owe you money and how much) to the liquidator

or trustee of your employer. You may be able to receive some of your unpaid entitlements.

If your employer doesn't have enough money to pay your entitlements, the General Employee Entitlements and Redundancy Scheme (GEERS) may be able to help you by paying you some of the unpaid entitlements. These include unpaid wages, annual and long service leave and redundancy pay. You can lodge a GEERS claim online, by post, fax or email. If you need more information please contact the GEERS Hotline on 1300 135 040.

Shan wants to become a permanent employee

Shan has been working for over a year at an embroidery factory as a casual clothing packer. Shan usually works 2 or 3 days per week. Shan would like to work more hours but she is worried about asking her boss for more hours in case she gets angry at Shan for complaining and asking questions. Shan would also like to become a permanent worker so that she gets paid sick leave and holidays.

What can Shan do?

Shan should talk to her boss about wanting extra work. Workers can always ask for more shifts – they shouldn't be treated badly because they want extra work.

Because of the type of work Shan does, some of the rules about her pay and hours of work will be set out in her Modern Award. Shan's Modern Award is the Textile, Clothing, Footwear and Associated Industries Award. If Shan wants a copy of the Modern Award she can get one on the Fair Work Ombudsman's website - www.fairwork.gov.au.

The Modern Award says that if Shan has been working regular hours for at least 6 months her boss should give her a Notice telling her she can elect (choose) to become a permanent employee. If her boss doesn't give her a Notice Shan can ask her boss to make her a permanent employee. Shan and her boss will need to talk about whether or not making her a permanent employee will suit them both. Shan can get legal advice or help from her Union, her local Community Legal Centre or Legal Aid NSW. If Shan belongs to a Union someone from the Union might even talk to Shan's boss for her.

Not all Modern Awards say that your boss needs to give you a Notice after working as a casual for 6 months – each Modern Award is different. Shan should not be treated badly because she has asked to become a permanent employee. If Shan is dismissed, or treated badly in some other way, she should get legal advice straight away.

Lily and her tax

Lily arrived from Vietnam two years ago and is now a permanent resident. Since coming to Australia Lily has been working in a factory. She is paid in cash – she doesn't get any

payslips. Her boss does not pay any of her tax to the Australian Tax Office for her and Lily has never filed a tax return. Lily 's friend tells her she can get in a lot of trouble for not paying her tax. She is worried and does not know what to do.

What can Lily do?

Firstly, it is important for Lily to keep a record of her wages.

The law says that her boss must give her a pay slip – but even though they are supposed to, sometimes employers don't. Lily should ask her boss to give her a pay slip each week. She should also ask her boss to start making "Pay As You Go" (PAYG) tax deductions from her pay – this means her boss will send her tax payments directly to the Australian Tax Office (ATO) for her.

Lily should not get into any trouble for asking her boss to give her a payslip and to make PAYG deductions – every worker has the right to ask for these things.

If Lily does not have pay slips she should keep a record of the hours and days she works and how much she gets paid by:

- Keeping a diary either in a notebook, on her calendar or in a document on her computer; or

- Depositing her wages into the bank each week.

That way, Lily will know how much money she is paid each year and can make sure the ATO knows as well. Secondly, Lily's friend is right – she might get in trouble if she hasn't paid her tax and she has earned more than the tax-free threshold (which is $18,200 per year). Lily should speak to a lawyer to get some legal advice.

Lily may have to pay the Australian Tax Office:

- any tax she owes;

- interest on any tax she owes; and/or

- a fine

The sooner Lily fixes the problem the less likely she is to face any serious penalties like a criminal charge for not paying her tax. Lily should speak to a lawyer about the penalties she might face for not paying her tax. You can speak to a lawyer for free at your local CommunityLegal Centre or Legal Aid NSW. Lily might also need to speak to an Accountant for advice on how much tax she owes.

Ann and overtime

Ann has been working as a permanent employee in a clothing factory for three years. As Christmas is approaching, the clothing factory has been very busy. Her boss has asked her to work overtime in the evening. Ann has a family to look after and cannot work theextra hours. Ann is a single mother of two and cannot afford to hire someone to look after her children. Ann's boss knows this – she told him when she applied for the job three years ago she could only work until 5:00pm.

Ann is not sure if she can say no to overtime and is scared that her employer will treat her badly because she refused to work overtime.

What can Ann do?

Overtime is usually when you work more than 38 hours a week or outside of the hours you usually work. Modern Awards and Enterprise Agreements include rules about overtime.

For example, if an employee does not normally work at weekends or late at night as part of their ordinary hours of work, and are asked to work at these times, they may be entitled to be paid extra money.

How much extra money you get will depend on what your Modern Award or Enterprise Agreement says. Most Modern Awards say an employee should be paid 'time and a half' for overtime.

Usually an employer may be able to ask an employee to work "reasonable" overtime at overtime rates. Whether it is "reasonable" will depend on:

- any risk to health and safety (especially if they have already worked lots of hours that day);

- personal circumstances like family responsibilities;

- the needs of the workplace;

- how much notice you have been given (e.g. on the day or a week in advance); and

- any other relevant matter – for example working late might mean Ann has to catch the train home by herself late at night and this might not be very safe.

Ann should speak to her boss about her children and explain she has no one to care for them after 5:00pm. It is probably not reasonable to expect Ann to work overtime when she has to care for her children, especially when the boss has known this the whole time she has worked there. If Ann feels like her employer is treating her differently or badly because she is unable to work overtime, she should get some legal advice. You can speak to a lawyer for free at your local Community Legal Centre or Legal Aid NSW.

Lucy wants to ask for her missing pay

Lucy applied for a job online and was asked to go to an interview. Lucy did very well at the interview and was asked to come to a three hour trial at the workplace. She was told that if she wanted the job, that she would have to come to the trial. She did the trial and began working at the new job. However, she was not paid for the three hours of training.

She heard that she should have been paid for the trial but she is not sure. She also does not know who to contact to find out. She is also worried that if she complains she could lose her job or be treated badly by her boss.

What can Lucy do?

Most job offers are made after an interview. When offered a job you may be asked to work for a trial or probation period. This is so that you and your employer can see if you can do the job and that you get along.

You must be paid for any trial or 'on the job' training your employer asks you to do. 'Unpaid trial work' is against the law - even if it is only for a couple of hours.

Lucy could try speaking to her boss. If that doesn't work, Lucy should contact the Fair Work Ombudsman (FWO). Their number is 13 13 94. The Fair Work Ombudsman will talk to Lucy's boss and see if she is owed any money. They can help Lucy negotiate with her boss.

Lucy might need to give the Fair Work Ombudsman some evidence (proof) to show that she wasn't paid for the trial. This might include:

- her pay slip;

- a copy of the advertisement (print or electronic) for the job; and

- any letters or emails between her and her boss about the trial.

If Lucy's boss starts to treat her differently or badly because she asked to be paid for her trial she should get a legal advice. Lucy might be able to make a complaint to Fair Work Australia or a Court – this type of complaint is called a General Protections complaint. Employees always have the right to ask for their pay.

The law protects employees from being treated badly because they have workplace rights. Workplace rights include rights to:

- annual leave, personal and other types of leave;

- be paid correctly and on time;

- be given a pay slip;

- be a member of a Union;

- say 'no' to unreasonable overtime ;

- work in a safe environment;

- ask for Workers Compensation if you're hurt at work; and

- complain about things that are worrying you at work or to ask questions about your employment.

Lucy should speak to a lawyer or her Union if she is treated badly because she asked to be paid. You can speak to a lawyer for free at your local Community Legal Centre or Legal Aid NSW.