GWAG’s legal advice is that Assistant Ministers are legally recognised as employees and as such have the benefit of access to workplace rights under the Fair Work Act 2009. The legal test to determine if a person is an employee rather than an independent contractor focuses on the notion of control - Stevens v Brodribb (1986) 160 CLR 16. As Assistant Ministers are subject to the direct control of the Senior Minister/Pastor, they would be classified as an employee. To see our legal advice on this matter, click here.
Yes, as Assistant Ministers are classified as employees they can pursue an action for unfair dismissal through the Fair Work Commission. However, Assistant Ministers only have 21 days from the date of dismissal to pursue their claim. The Fair Work Commission is very strict in requiring all actions to be commenced within 21 days.
No, it is illegal to dismiss any employee without providing reasons for their dismissal. Furthermore, the grounds for the summary dismissal of an employee are very limited.
The grounds for summary dismissals are quite limited - for example, theft or fraud, damage to the employer’s property, serious breaches of WHS laws, discrimination or harassment of another employee or refusal to carryout a lawful and reasonable direction.
No, it is illegal to dismiss any employee on the basis of an alleged personality clash. Prior to dismissing any employee from their position, the employer must clearly spell out the areas where the employee is failing to perform their duties and give the employee a reasonable period of time to improve their performance. This process is described as establishing a performance management plan.