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Heavy fines for franchisee’s record keeping breaches

By | Unfair Dismissal

A former Franchisee operator and the company’s owner have been handed down large penalties for a number of record keeping breaches after a Fair Work Ombudsman investigation.

Background

In Fair Work Ombudsman v Aulion Pty Ltd (‘Aulion’) and Peter Dagher were ordered to pay pecuniary penalties of $80,190.00 and $16,038.00, respectively, after Judge Street of the Federal Circuit Court found that they had falsified employee records related to pay and failed to provide payslips on time.

The Fair Work Ombudsman brought the Application in the Federal Circuit Court alleging that Aulion and Mr Dagher had engaged in various breaches of the Fair Work Regulations 2009 that related to the accuracy and keeping of employee records.

The Ombudsman had previously used its powers under the Fair Work Act 2009 to audit Aulion when it issued notices to produce various documents relating to employees pay in 2016. Aulion provided the documents, however, the Ombudsman suspected that the documents it received were not accurate and continued to investigate. After reviewing bank, superannuation and accounting records, the Ombudsman brought action in the Federal Circuit Court against the Aulion and Mr Dagher.

In Court, Aulion admitted that it had misled the Ombudsman and provided false documents and records. Mr Dagher was involved in the contraventions. The Ombudsman Natalie James, said, “False records at this Caltex outlet were so bad we couldn’t properly audit the biz to determine underpayments. Pleased even higher penalties will apply in the future.

Penalties

Previously, the largest penalty that a court could impose for breaches related to employees wages and entitlements was $10,800. After the recently implemented Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, the maximum is now $108,000. The Ombudsman, Natalie James, said that the penalties were “the highest penalty yet in court action solely for record keeping & payslip breaches.

The large penalties reflect the impact the amendments will have on Courts ability to penalise employers breaching civil remedy provisions of the Fair Work Act 2009 that relate to record keeping. The amendments mean that multiple and continuous breaches of record keeping provisions give Courts discretion to invoke larger penalties.

Lessons for employers (and employees)

The most important take-away from the case is that employers ensure that they maintain and manage their employee pay records with the utmost care. The Fair Work Ombudsman’s combination of powers in relation to production of documents and the higher penalties that Courts can now order against employers and individuals involved in contraventions means that the risk for employers who aren’t willing to comply with their obligations is significantly higher.

Employees should be encouraged that the Ombudsman and the Commonwealth Parliament seem more and more willing to ensure that their interests are being protected under the Act.

Judge Street is yet to publish reasons for the decision.

Need help with an unfair dismissal claim?

dos and donts of a office party

Office Christmas Party Do’s and Don’ts

By | Unfair Dismissal

Your office Christmas Party is fast approaching, do you know the dos and don’ts?

The annual office Christmas party can be a fun night of frivolity, however, too much frivolity can put your employment in jeopardy.

It is important as an employee to know the expectations of your employer at these functions.  Many employers have a policy on how employees ought to behave at work related functions, including Christmas parties.

It is well recognised that these types of functions are sufficiently connected to your workplace and this means that if you engage in any type of behaviour that is inappropriate, such as fighting, sexual harassment or bullying towards other employees then you could be disciplined by your employer and even dismissed from your employment.  Just because the work function may be outside of normal working hours and at a different venue to the workplace, does not mean that normal workplace standards of behaviour do not apply.

So here are some helpful tips:

  • read any workplace policy that your employer has on workplace functions. If your employer does not have a policy, this does not mean you can engage in any behaviour.  You still will need to behave in an appropriate manner;
  • if there is alcohol at the function, ensure that you drink responsibly. Organise safe travel home if you are going to consume alcohol;
  • be mindful of your behaviour following the end of the Christmas party and any further frivolities you partake in; and
  • be careful of your behaviour when drinking alcohol, what you may consider to be a friendly overture may be considered harassment or discrimination.

Don’t be like these employees:

  • an employee was dismissed for publicly urinating over a balcony on to diners below at the workplace Christmas party;
  • following the end of a workplace Christmas party, an employee engaged in sexual acts in front of other employees, in a hotel room booked by a group of employees. This employee was dismissed; or
  • a group of employees were fooling around, an employee was sprayed with paint thinner on his torso by another employee which then ignited as a result of a nearby flame causing severe burns to the employee. The employees involved were prosecuted for breaches of workplace, health and safety legislation.

Your workplace Christmas party can be an enjoyable time.  Remember these tips and you can have a fun time without placing your employment in jeopardy.  Merry Christmas from Anderson Gray!

 

unfair disissal high threshold

Unfair Dismissal and the High-Income Threshold

By | Unfair Dismissal

Have you been unfairly dismissed but you’re above the high-income threshold

A recent Fair Work Commission case found that an employee was still entitled to make an unfair dismissal claim in spite of having a salary above the usual high-income threshold.

The employee’s success was on the basis that her responsibilities fell directly under an appropriate modern award.

The law provides a guide as to who is provided with unfair dismissal protection. Firstly, an employee must have completed the minimum period of employment to generate an unfair dismissal claim. If this requirement is satisfied, an employee must then either earn below the high-income threshold, which at present is $142,000 a year, or be covered by either an enterprise agreement or a modern award, as determined by the principle purpose test.

When she was fired the employee’s position title was Director of Asset Management. She earned a substantial annual average salary of $180,000, despite only starting with the company on an annual income of around $80,000. The employer argued that these earnings put her above the high-income threshold and so she should not receive unfair dismissal protection.

even though your salary may be above the high-income threshold and your employer may claim you are not covered by an Award you should still get expert legal advice

While her annual earnings certainly exceeded the threshold, the key point in this case became whether she was actually covered by a modern award.

The employer asserted that the duties of her position fell under the Real Estate Industry Award 2010 (the Award), and that even though her position title included the word “director” she was actually a Property Management Supervisor rather than a Director.

The Fair Work Commission considered the nature of the employee’s position, and with the application of the principle purpose test, it was determined that the employee’s role did in fact fall within the scope of the Award. The employee was subsequently shielded by the relevant Award and was successful in her unfair dismissal claim.

The key lesson in this case is that even though your salary may be above the high-income threshold and your employer may claim you are not covered by an Award you should still get expert legal advice if you believe you have been the victim of an unfair dismissal.

sexual harassment rights obligations image

Sexual Harassment – Your Legal Rights and Obligations

By | Sexual Harassment

What are your rights and obligations are under the law?

Sexual harassment is against the law.  This blog discusses sexual harassment in the workplace and what your rights and responsibilities as an employee are.

Sexual harassment can be committed by your employer, a colleague, contractor or other person who is in a working relationship with the person who has been sexually harassed.

What is sexual harassment?

Legislation such as the Anti-Discrimination Act 1991 (a Queensland Act) and the Sex Discrimination Act 1984 (a Commonwealth Act) set out what sexual harassment is.

Sexual harassment is defined as conduct that:

  • is of a sexual nature;
  • is unwelcome or unsolicited; and
  • the person engaging in the conduct did so with the intention of offending, humiliating or intimidating the person or a reasonable person would anticipate in the circumstances that the person being harassed would be offended, humiliated or intimidated.

Your employer’s obligations

As an employee, you have a right to a workplace that is free of discrimination, sexual harassment and vilification.  Your employer is actually responsible and has a duty of care to ensure your health and wellbeing at work.

Steps taken to achieve this by your employer may be the implementation and enforcement of policies on discrimination and harassment, providing training and setting out a clear complaint process, so employees know what to do if they have an issue.

If an employee is sexually harassed in the workplace, your employer can be found vicariously liable.  This means they can be found accountable for the actions of the person who engaged in the sexually harassing behaviour.

However, it is not only your employer who is responsible.  You also have responsibilities as an employee.

Employee responsibilities 

As an employee, you have a responsibility to not engage in discriminatory or sexually harassing conduct and to comply with your employer’s workplace policies that cover this type of conduct.  In addition, you ought not encourage or request a person to engage in this type of conduct as this is also inappropriate behaviour and will have consequences.

If you engage in sexually harassing behaviour, then you may face disciplinary action by your employer which could include being dismissed from your employment.  Further, if a complaint is made to the Anti-Discrimination Commission or Human Rights Commission you could be found liable and face penalties.  This may mean that you may have to pay damages such as monetary compensation to the person you harassed (or encouraged to be harassed).

Sexual harassment is serious.  If you are being harassed at work or know someone who is and you are not sure of your options, please contact Anderson Gray today.  We are here to help you. Anderson Gray are lawyers for employees.

sexual harrassment

What Sexual Harassment Is

By | Sexual Harassment

What sexual harassment is – including the verbal, visual, and physical conduct that could be considered harassment

Sexual harassment is the topic that has been making global headlines lately.  Scandal has hit Hollywood with some big hitters in the industry facing sexual harassment allegations and Australia’s own acting industry coming under siege with Aussie acting icons facing allegations. But despite the awareness that this behaviour is not okay, individuals are still being subjected to sexually harassing behaviour at work.

Sexual harassment can have a significant and detrimental effect on a workplace and a person’s well-being.  Every person has the right to be safe and work within a harassment free environment.

State and Commonwealth laws, through legislation such as the Anti-Discrimination Act 1991 (Qld) and the Sex Discrimination Act 1984 (Cth), provide that sexual harassment and discrimination on the basis of sex is unlawful.

So what is sexual harassment?

Sexual harassment is conduct of a sexual nature that is unwelcome or unsolicited and that a reasonable person would anticipate in the circumstances that the person being harassed would be offended, humiliated or intimidated.

Sexual harassment does not have to be deliberate or repeated to be illegal. Sexual harassment can be verbal, physical or visual.  Sexual harassment like sexual assault or indecent exposure is a criminal offence.  Other behaviour that is sexual harassment can be more subtle.

So what are the types of acts that may be considered sexual harassment?

The following are examples of sexual harassment:

  • displaying pornographic material – posters, photos, website, emails or videos in the workplace;
  • indecent or explicit comments about your appearance;
  • gestures that are sexual, staring at a person or whistling;
  • touching, groping, pinching or hugging a person, trying to take a colleague’s clothes off – such as unzipping a uniform;
  • exposing a person’s genitals;
  • banter that is insulting and/or demeaning;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • sending sexually explicit text messages, emails or phone calls to a person; and
  • being subjected to a “boys club” atmosphere where you have to hear sexual comments made to other employees in the workplace.

Sexual harassment at work is unlawful. Your employer has an obligation to ensure you are not sexually harassed at work, such as implementing policies and procedures to create a harassment free workplace and processes on how your employer deals with any complaints.  Not only the person who sexually harasses you, but your employer can also be held responsible if you are sexually harassed at work.

If you are being sexually harassed at work, call Anderson Gray now.  We are here to help you.

casual award clause

Casual Conversion Clause in Modern Awards

By | Unfair Dismissal

What is the Casual Conversion Clause?

If your employer employs you on a casual basis, then read on as this may apply to you.

A number of modern awards currently include a casual conversion clause. This means that, if an award that includes this clause applies to your employment you may be able to convert to permanent employment if you are eligible. Generally, if you have been employed by your employer on a regular and systematic basis, for a period of six months or 12 months (depending on the award that applies to you), then you have the right to convert your employment from a casual basis to permanent full-time or part-time employment.

Some of the awards that include a casual conversion clause are the following:

Your employer must give you notice in writing of your ability to convert to permanent employment within four weeks of you reaching the six month mark.
If you do not elect to convert your employment within four weeks of receiving written notice from your employer, than your employer will deem that you have elected against converting to permanent employment.

If your employer does not give you notice, you can give your employer notice in writing that you are seeking to convert your employment to full-time or part-time employment and your employer has four weeks to agree or refuse your conversion to permanent employment. Your employer cannot unreasonably refuse.

The Fair Work Commission is also in the process of finalising a model casual conversion clause that is to be introduced into the majority of modern awards. However, a casual employee will have to be employed on a regular basis for a period of 12 months before they can request that their employment be converted to permanent employment. If their employer refuses to convert their employment, they must consult with the employee first and they can only refuse to convert the employee’s employment if they have reasonable grounds.

Stay tuned for updates in this area. Anderson Gray lawyers are here to help, contact us today in Brisbane, Sydney or Melbourne if you are having any issues with your employment.

What are Grounds for Unfair Dismissal?

By | Unfair Dismissal

GROUNDS FOR UNFAIR DISMISSAL

The Act is the piece of legislation that covers the federal industrial relations system and sets out the minimum workplace conditions and protections for employees and it also sets out certain employer obligations. The Act applies to the majority of workplaces in Australia.

An unfair dismissal application can be filed with the Fair Work Commission (the FWC). The FWC is the federal workplace relations body that has been created to regulate most workplace matters. Once an application is filed, the FWC will then deal with the matter.

The purpose of this type of application is to provide (where possible) a remedy to employees, but it also provides a framework that enables businesses and employees to deal with these applications in a flexible, efficient and informal manner.

To be eligible to make an application, first and foremost, an individual must be an employee of the employer. That is, there is likely to be a contract of employment between the individual and the employer, either oral or in writing. In certain circumstances, an individual who is considered to be an independent contractor, may actually be an employee. If this is the case, then the FWC could have jurisdiction to deal with the unfair dismissal application. Persons who are volunteers or serving a vocational placement are generally excluded from making an application as they are not considered to be an employee

For an employee to be protected from unfair dismissal under the Act:

  • you were dismissed from your employment.
  • the dismissal was ‘harsh, unjust or unreasonable.
  • your dismissal was not a genuine redundancy and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code (if your employer was considered a small business).

National System Employer

The legislation applies to ‘National System Employers’. The meaning of a National System Employer varies slightly from State-to-State. If an employer falls within the definition of a National System Employer, they are bound by the Act.

A National System Employer includes:

  • private sector employers in Queensland, New South Wales, South Australia and Tasmania. This includes employing entities who are sole traders, Pty Ltd entities and partnerships;
  • local government employers in Tasmania;
  • the Commonwealth and Commonwealth authorities;
  • all employers in Victoria (with limited exceptions in relation to some State public sector employees), the Northern Territory and the Australian Capital Territory;
  • all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands;
  • employers that are constitutional corporations in Western Australia (including Pty Ltd companies)—this may include some local governments and authorities; and
  • the employers of waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce.

What type of employer is not a National System Employer?

The employing entities who fall outside the definition of a National System Employer are not covered by the Act and therefore other legislation (such as State based legislation) applies to them.

Employers who are not National System Employers include, for example:

  • local government employers in Queensland, New South Wales and South Australia;
  • State government employers in New South Wales, Queensland, Western Australia, South Australia and Tasmania;
  • employers that are individuals, sole trader, partnerships and trusts in Western Australia; and
  • employers of employees in the public sector in Victoria who hold high managerial positions.

For the purposes of this article, unfair dismissal applications for employees who do not fall within the federal industrial relations system, such as local and State government employees will not be canvassed. These applications are dealt with by State industrial relations commissions. For example, the Queensland Industrial Relations Commission is the jurisdiction for Queensland Government employees to file an unfair dismissal application, not the FWC.

WHAT ARE THE ELIGIBILITY REQUIREMENTS TO MAKE AN APPLICATION?

An employee can make an application for unfair dismissal if they meet the following criteria (in addition to being an employee):

  • they have completed the minimum period of employment. The minimum period is either six months if the employee works for an employer who employs 15 or more employees or 12 months if they work for an employer who has less than 15 employees. The number of employees are calculated by a simple headcount of all employees and includes casual employees who are employed on a regular and systematic basis; and
  • they earn less than the high income threshold (which is currently $145,400 until 30 June 2019). However, if an employee earns more than the high income threshold but a modern award or enterprise agreement covers their employment, then the employee can still be eligible to make a claim; and
  • they have been dismissed. Casual employees are eligible to make an unfair dismissal application if they meet the above eligibility requirements and:
  • they were employed on a regular and systematic basis; and
  • had a reasonable expectation of continuing their employment with their employer.

WHAT ARE THE ELIGIBILITY REQUIREMENTS TO MAKE AN APPLICATION?

For an employee to be protected from unfair dismissal under the Act:

  • the employee was dismissed from their employment;
  • the dismissal was ‘harsh, unjust or unreasonable’;
  • the employee’s dismissal was not a genuine redundancy; and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code (if the employer is a small business employer).

A Small Business Employer is defined as an employer who employs less than 15 employees at the time of the employee’s dismissal. This includes casual employees who are employed on a regular and systematic basis with the employer. The criteria as to what constitutes unfair dismissal is explored further below.

What does ‘dismissed’ mean?

An employee is dismissed from their employment if:

  • their employment was terminated at the initiative of their employer; or
  • the employee was forced to resign from their employment as a result of their employer’s conduct or a course of conduct engaged in by their employer.

What is ‘harsh, unjust or unreasonable’?

A dismissal may be considered to be:

  • harsh – if the punishment does not fit the crime (the outcome was disproportionate when considering the misconduct of the employee);
  • unjust – if the employee was not guilty of the alleged misconduct; or
  • unreasonable – if the evidence before the employer did not support a conclusion that the employee ought to be dismissed.

Section 387 of the Act sets out a number of criteria the FWC must consider when determining if the dismissal of an employee was harsh, unjust or unreasonable.

CRITERIA THE FWC WILL CONSIDER

Each of these criteria are explored in further detail below.

WHAT IS A VALID REASON?

A dismissal will be seen to be harsh, unjust or unreasonable if there is no valid reason for the dismissal.

A valid reason for dismissal may relate to an employee’s conduct, capacity or performance. The reason must be sound and well founded, not fickle, fanciful or prejudiced.

Below is a discussion on some examples that relate to conduct, capacity or performance and how these may amount to a valid reason for dismissal.

Conduct

Misconduct of an employee is behavior of an employee that is not appropriate at the workplace or in breach of the employee’s contract of employment. Below are a few examples of what may constitute misconduct by an employee:

  • breaching a company policy;
  • engaging in an activity that poses a serious risk to the health and safety of a person or to the reputation or viability of the business;
    dishonesty;
  • having a poor attitude and engaging in poor behavior towards your employer and/or other employees whilst at work;
  • failure to follow a lawful and reasonable direction given by your employer;
    being intoxicated at work;
  • stealing; or
  • fighting or assaulting another person at work.

In the decision of O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys, the conduct of an employee who made comments on Facebook that were of a negative and threatening nature towards another colleague, was held to be conduct that could not be tolerated in the workplace. Accordingly, this was a valid reason for the employee’s dismissal.

In another case, an employee who had been warned a number of times and counselled on their behaviour by their employer was found to have been dismissed for a valid reason for a continued breach and a disregard of the employer’s policies. The employee on a number of occasions was absent from his work station without authorisation, used his mobile phone in the factory which was prohibited and failed to wear personal protective equipment when using an open blade at work (see Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski).

On the other hand, in the decision of Walker v Mittagong Sands Pty Limited T/A Cowra Quartz an employee was dismissed for stealing from the employer. However, as the employer had obtained the evidence by searching the employee’s vehicle without the employee being present, the employer was not entitled to rely on this evidence to prove misconduct and accordingly, it was found that the theft was not a valid reason for dismissal.

Out of Hours Conduct

In certain circumstances an employee’s out of hours conduct may be considered to be grounds for a valid reason for dismissal. However, there needs to be a connection that is relevant to the employment relationship and the misconduct that has occurred. In the decision of Rose v Telstra, out of hours conduct was considered. Vice President Ross of the Australian Industrial Relations Commission (the predecessor to the FWC) held that for out of hours conduct to be considered as a valid reason, the conduct:

  • must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer;
  • damages the employer’s interests; or
  • is incompatible with the employee’s duty as an employee.

Despite the above examples provided in relation to conduct, each individual circumstance is different and the FWC will consider each case on its merits in determining if there was a valid reason for the dismissal. Whether a dismissal for misconduct amounts to a valid reason to terminate the employee’s employment depends on the nature of the conduct in the particular circumstances and the employee’s work history.

CAPACITY

Capacity relates to the ability for an employee to perform the ‘inherent requirements’ of their position of employment and the work they were required to do.

It is an objective test of determining whether the work performed by the employee was satisfactory. When looking at whether an employee has the capacity to perform their role, it is the substantive position of employment that is considered, not a modified position, restricted position or temporary alternative position that the employee may have been performing for a period.

If an employee is unable to perform the inherent requirements of their role, then this may be considered a valid reason for the employer to terminate the employee’s employment.

Incapacity to perform a role may be on a medical basis. The Act provides workplace protections for employees who are absent from work due to illness or injury. The Act provides protection from dismissal if:

  • an employee is temporarily absent from work for a period of up to three months (or up to three months in total over a 12 month period); or
  • if an employee is absent on paid personal/carer’s leave for the duration of their absence from work.

If an employee is absent from work for more than three months it then becomes a consideration of when the employee is likely to return to work and their duties. Medical evidence may have bearing on determining the likelihood of a return to duties and whether the reason for dismissal is adequate when considering the evidence.

In the decision of Harte v Forbes Australia Pty Ltd T/A Hunt Boilers an employee was employed as a technician. His substantive position of employment as a technician involved both administrative and site-based duties. The employee seriously injured his foot at work and as a result he was solely placed on administrative duties. Subsequently, he resumed his technical role, however, a few years later he had further surgery on his foot. Following this, the employee thought he would never return to his pre-injury duties and in light of this settled a permanent disability claim. The employer sought advice from treating medical practitioners. It was held that the employee could not perform the inherent requirements of his position of employment, as his substantive role required both administrative and site-based work. As a result, this was considered a valid reason for dismissal and his dismissal was not harsh, unjust or unreasonable in the circumstances.

Capacity may also relate to unsatisfactory performance.

Performance

An employee may also be dismissed on the grounds of poor performance. Poor performance is when it is established that an employee has not been performing their role to a satisfactory standard. That is, they have not been performing their role diligently, with care and quality.

If an employee has been under-performing in their role, the Act provides that an employee ought to have been warned about their poor performance by their employer and have been notified of the need for the employee to improve their performance prior to their dismissal.

Generally, when determining an application for unfair dismissal, the FWC likes to see that an employee has been given a period of time in which to improve their performance. If an employee has not been warned that their performance at work is sub-standard and given a chance to improve their performance, then this may render the dismissal unfair, as the employee was not given the opportunity to understand their employment was at risk and given the chance to improve their performance.

In Fichera v Thomas Warburton Pty Ltd, a Branch Manager had been under-performing in their role and as a result the branch had low sales. It was found that the dismissal of the Branch Manager was valid as the Branch Manager did not have the leadership required to improve the performance of the branch. However, the dismissal was ultimately found to be unfair as the Branch Manager was not given a warning by their employer that his employment was at risk and given a chance to improve.

  • must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer;
  • damages the employer’s interests; or
  • is incompatible with the employee’s duty as an employee.

Despite the above examples provided in relation to conduct, each individual circumstance is different and the FWC will consider each case on its merits in determining if there was a valid reason for the dismissal. Whether a dismissal for misconduct amounts to a valid reason to terminate the employee’s employment depends on the nature of the conduct in the particular circumstances and the employee’s work history.

GENUINE REDUNDANCY

If an employee’s position of employment is made ‘genuinely redundant‘, then this will be viewed as a valid reason for the dismissal from employment. This is a jurisdictional issue and if an employee has been made genuinely redundant within the meaning of the Act then an unfair dismissal application should not be made. In such a circumstance, the employer objects to the application for unfair dismissal on the ground that the requirements of section 389 of the Act have been complied with.

  • an employee is temporarily absent from work for a period of up to three months (or up to three months in total over a 12 month period); or
  • if an employee is absent on paid personal/carer’s leave for the duration of their absence from work.

If an employee is absent from work for more than three months it then becomes a consideration of when the employee is likely to return to work and their duties. Medical evidence may have bearing on determining the likelihood of a return to duties and whether the reason for dismissal is adequate when considering the evidence.

In the decision of Harte v Forbes Australia Pty Ltd T/A Hunt Boilers an employee was employed as a technician. His substantive position of employment as a technician involved both administrative and site-based duties. The employee seriously injured his foot at work and as a result he was solely placed on administrative duties. Subsequently, he resumed his technical role, however, a few years later he had further surgery on his foot. Following this, the employee thought he would never return to his pre-injury duties and in light of this settled a permanent disability claim. The employer sought advice from treating medical practitioners. It was held that the employee could not perform the inherent requirements of his position of employment, as his substantive role required both administrative and site-based work. As a result, this was considered a valid reason for dismissal and his dismissal was not harsh, unjust or unreasonable in the circumstances.

Capacity may also relate to unsatisfactory performance.

Section 389 of the Fair Work Act provides that a redundancy is a genuine redundancy if:

  • A.  the employer no longer requires the employee’s job to be performed by anyone due to operational changes in the workplace;
  • B.  the employer complied with any obligation in a modern award or enterprise agreement to consult with the affected employee about the proposed redundancy; and
  • C.  it was not possible to re-deploy the employee into another job in the employer’s business or an associated entity of the employer.

If a dismissal was not a ‘genuine redundancy’ within the meaning of the Act, then the FWC does have jurisdiction to hear the application for unfair dismissal and determine if the dismissal was fair or not in the circumstances.

Accordingly, if an employer employs someone else to do the same role as the dismissed employee, then it is likely that the redundancy will not be considered a genuine redundancy.

The majority of modern awards and enterprise agreements provide that consultation is required if there are any significant changes to be made at the workplace. If a modern award or enterprise agreement applies to the employee’s terms and conditions of employment, the employer more than likely had an obligation to consult with the dismissed employee about the redundancy. That is, discuss with the dismissed employee the proposed change (i.e. making their position of employment redundant) and if there were any alternative options or ways to minimize the adverse effect of this change on the employee, prior to making their position of employment redundant.

The final factor in determining whether a redundancy is genuine, is if it was reasonable in the circumstances to re-deploy the employee within the employer’s enterprise or an associated entity of the employer’s business. If there was an alternative job available then it may mean the redundancy was not ‘genuine’ within the meaning of the Act.

In the decision of UES (Int’l) Pty Ltd v Harvey, there was a decline in business and as a result the employee’s position was made redundant due to the employer no longer requiring the employee’s job to be performed by anyone in light of the change in operational requirements. However, the employer failed to consult with the employee about the changes and the proposed redundancy. Consequently, it was found not to be a genuine redundancy within the meaning of the Act.

In Patti v Vincent Chrisp & Partners P/L t/a Vincent Chrisp Architects, when considering re-deployment opportunities, the employee’s skills were relevant in determining whether an alternative position would be suitable for redeployment. It was held that the alternative position was not suitable as it was for a contract administrator position which the employee did not have the skills for. The employee was employed as a drafter. Consequently, redeployment was not reasonable in the circumstances.

Nonetheless, the employer must properly consider redeployment options at the time of the dismissal.

THE SMALL BUSINESS FAIR DISMISSAL CODE

If an employee is dismissed in accordance with the Small Business Fair Dismissal Code, then their dismissal will be considered to be fair.
The Code applies to employers who have a business that employs less than 15 employees (a Small Business Employer). If the employer has followed the Code when dismissing the employee, then it is more than likely the employee’s dismissal will be deemed to be fair.
If an employee works for a Small Business Employer, then they are not eligible to make an application for unfair dismissal unless they have worked for their employer for a period of 12 or more months.

OTHER MATTERS

There are also additional grounds which an employer can object to the eligibility of an employee to make an unfair dismissal application, these are as follows:

  • the person was not employed by the employer, but was an independent contractor or volunteer;
  • the employee was not dismissed but resigned from their employment voluntarily;
    the employee earned over the high-income threshold at the time of their dismissal and their position of employment was not covered by a modern award or enterprise agreement;
  • the employee was employed for a specified period, specified task, seasonal contract or traineeship arrangement and was dismissed by the employer at the end of that specified period, task, contract or traineeship;
  • the employee was not a national system employee (such as a person on vocational placement);
  • the employee was employed on a casual basis and their employment was not regular or systematic and there was no reasonable expectation of continuing employment;
  • the employee made an unfair dismissal application against the incorrect employing entity;
  • the employee made more than one application in relation to the dismissal (such as a general protections application and an unfair dismissal application); and
  • the employee made an application, but it was outside the specified time limit for making an unfair dismissal application and there are no exceptional circumstances (see section titled ‘Time limits for lodging an application” for further information).

If the employer is successful in objecting to any of the above grounds or if the dismissal was a genuine redundancy, consistent with the Small Business Fair Dismissal Code or the employee was terminated during the minimum employment period, then this means that the FWC does not have the jurisdiction or power to deal with the unfair dismissal application.

TIME LIMITS FOR LODGING AN APPLICATION

An employee has 21 days from the date their dismissal took effect in which to lodge an application for an unfair dismissal remedy with the FWC.

If an application is lodged after 21 calendar days, a late application will only be accepted by the FWC if there are exceptional circumstances.

Exceptional circumstances

Exceptional circumstances are those circumstances that are ‘unusual’ or ‘out of the ordinary course’, however they do not need to be ‘unique, unprecedented or rare’. Exceptional circumstances may be a series of events or a single exceptional event. Section 394(3) of the Act sets out the criteria the FWC will take into account when considering exceptional circumstances, these are:

  • A.  the reason for the delay;
  • B.  if the employee first became aware of the dismissal after it had taken effect;
  • C. any action (or steps) taken by the employee to dispute the dismissal;
  • D.  if the employer would suffer prejudice (including prejudice caused by the delay);
  • E. the merits of the application for unfair dismissal; and
  • F. fairness between the employee and other persons in a similar position.

Generally, after an employee lodges an application and the employer files their response to the application, the next step is for the employee and the employer to participate in a Conciliation Conference to try and resolve the dispute in relation to the dismissal.

If the matter cannot be settled at Conciliation then a formal hearing will take place. At the hearing, the Commission will hear from both parties and on the evidence before it, make a decision as to whether the dismissal in the circumstances was unfair or not.

REMEDIES FOR UNFAIR DISMISSAL

  • reinstatement; and
  • compensation (capped at 26 weeks wages).

Reinstatement of an employee’s position of employment is the primary remedy for unfair dismissal. The FWC will seek to have the employee’s job reinstated (if practical) or into a new position that is similar in hours, responsibilities and pay. If this occurs, the employee will also be entitled to back pay. The FWC may also make an order that the employee’s continuity of employment will be maintained and that there will be no break in their service or accrual of entitlements.

If it is not practicable for the employee to be reinstated as the employment relationship is no longer tenable, then compensation may be ordered as a remedy.

Compensation for unfair dismissal is capped at 26 weeks’ wage of the annual wage of the employee. However, the total amount of compensation that the FWC is able to award an employee is half of the high-income threshold amount that applies at the time of dismissal. The maximum amount of compensation the FWC can currently award is $72,700, because at the time of writing, the high-income threshold is (and will remain until 30 June 2019) $145,400.

When the FWC calculates the amount of compensation to be awarded to the unfairly dismissed employee, it will take into consideration any notice of termination payments paid by the employer to the employee at the time of the dismissal and any earnings earned by the employee post the dismissal.
An employer who is ordered to reinstate an employee, may also be ordered by the FWC to pay the amount of wages from the date of dismissal to the time of the order by the FWC. This is capped at the maximum amount of compensation (26 weeks of wages).

The FWC will not award monetary compensation for shock, distress or humiliation.
If you think you have been unfairly dismissed and require any assistance, contact Anderson Gray Lawyers today.