Category

Unfair Dismissal

Workplace Consultation

Workplace Consultation–is it Required? Redundancy and Stand Down

By | Unfair Dismissal

When is an employer obligated to consult?

The obligation for an employer to consult with its employees about major workplace change and/or changes to rosters or hours of work, are provided for in all modern awards and enterprise agreements.

Consultation is required where an employer has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have a significant effect on employees.

Significant effects on employees includes:

  • termination of employment;
  • major changes in the composition, operation or size of the employer’s workforce or in the skills required;
  • loss of, or reduction in, job or promotion opportunities;
  • loss of, or reduction in, job tenure;
  • alteration of hours of work;
  • the need for employees to be retrained or transferred to other work or locations; or
  • job restructuring.

An employer is also obligated to consult in circumstances where they propose to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.

What does consult mean?

Once the employer has made a definite decision to make a major change, then they must:

  • give notice of the changes to all employees who may be affected by them and their representatives (if any);
  • discuss with the affected employees and their representatives (if any):
  1. the introduction of the changes;
  2. their likely effect on employees; and
  3. measures to avoid or reduce the adverse effects of the changes on employees; and
  • commence discussions as soon as practicable after the definite decision has been made.

For the purpose of the consultation discussions, the employer must give, in writing, to the affected employees and their representatives (if any) all relevant information about the changes including their nature, their expected effect on employees, and any other matters likely to affect employees.

During the consultation process the employee is not required to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

The employer is obligated to promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussions during the consultation process.

Redundancy

Section 531 of the Fair Work Act 2009 (Cth) provides that an employer who has decided to dismiss 15 or more employees by way of redundancy, then then that employer is required to notify and consult with each registered employee association (i.e. unions) of which any of the employees are a member of.

The employer is required to provide unions with the notice and an opportunity to consult:

  • as soon as practicable after making the decision; and
  • before dismissing an employee in accordance with the decision.

If an employer is obligated to consult about redundancy and fails to do so, then they may be at risk of an unfair dismissal application being made against them. It will not be a case of genuine redundancy if an employer does not comply with its obligation in a modern award or enterprise agreement to consult about redundancy.

Before making the decision to terminate an employee on the grounds of redundancy, an employer is required to genuinely consult with the affected employees. Consultation is not considered to be genuine if the employer simply provides an employee perfunctory advice on what is about to happen. An employee must be provided with an opportunity to influence the decision maker before the dismissal is affected.

Stand down of employees

Section 524(1) of the Fair Work Act 2009 (Cth) provides that an employer may stand down an employee without pay during a period where the employee cannot be usefully employed because of one of the following circumstances:

  • industrial action (other than industrial action organised or engaged in by the employer);
  • a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
  • a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

An employer may not stand down an employee under section 524(1) of the Fair Work Act if:

  • an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
  • the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of one of the above mentioned circumstances.

An enterprise agreement or a contract of employment may outline additional requirements that an employer be obligated to perform before standing down an employee. For example, the employer may be required to provide notice and/or consult with the affected employees.

If such a term exists, then the employer is obligated to consult with the affected employee. So, it is important to review the terms of your enterprise agreement and/or contract employment and identify if there is a stand down provision that applies to you.

Unfortunately, no modern award provides for a stand down.

If you have any questions or require advice in relation to workplace consultation, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

Can I be Sacked for Asking about Jobkeeper?

By | Unfair Dismissal

Have you got some questions about the JobKeeper payment? If asking your employer about it, pay attention to how they react…

Can you be fired for asking your employer about the JobKeeper payment? In short, no.

Recent media reports indicate that some employees have had their employment terminated for asking about the JobKeeper payment.

Can an employer lawfully terminate someone’s employment for asking these kinds of questions? No, and to explain why this is the case, the following is a summarised explanation of what makes this what we call, adverse action, and would likely give rise to a claim against the employer:

Putting questions to your employer about your employment – for example, asking about the JobKeeper payment, asking about your correct rate of pay etc. – would likely be considered an enquiry in relation to your employment.

Making complaints or enquiries in relation to your employment is a workplace right (see section 341(1)(c)(ii)) under the Fair Work Act. What this means is, if you make a complaint or enquiry, and your employer reacts negatively, depending on what that may look like, this could be considered unlawful adverse action.

Adverse action can take many forms, for example, a reduction in hours, discrimination, a change in remuneration, a demotion or even termination of your employment.

What can you do if you believe adverse action has been taken against you? By way of general guidance, take your own notes of dates, times, conversations etc. and, most important, get legal advice specific to your employment.

We have extensive experience in relation to adverse action claims and can provide a free assessment of your matter. If you’re unsure, it’s better to be safe than sorry.

Biometric scanner

Jeremy Lee v Superior Wood: A decision on collecting sensitive information from employees

By | Unfair Dismissal

This article concerns a fascinating development in Australian employment law around the collection of sensitive information from employees following the decisions of the Fair Work Commission in Jeremy Lee v Superior Wood Pty Ltd.

Background

Superior Wood operated two sawmill sites in Queensland. Mr Lee was employed at Superior Wood as a general factory hand on a casual basis.

In October 2017, Superior Wood announced to employees it would introduce ‘biometric’ (fingerprint) scanners to record employees’ attendance on site. Superior Wood directed its employees to provide their fingerprint so that it could implement the scanners.

Between November 2017 to February 2018, Mr Lee refused to provide his fingerprint and use the scanners on the basis that he did not want to give up his personal information. In essence, Mr Lee viewed his biometric data as his personal property and held the view that he and only he had the right to control that property.

On 12 February 2018, Superior Wood dismissed Mr Lee for refusing to follow its direction to use the scanners.

Decision at first instance

Mr Lee made an application to the Fair Work Commission alleging he had been unfairly dismissed.

At first instance, Commissioner Hunt found that Superior Wood had a valid reason to terminate Mr Lee’s employment, being that Mr Lee refused to follow the direction to use the scanners. After considering a number of other factors, Commissioner Hunt found that the dismissal was not unfair.

The Appeal

Mr Lee appealed that decision and on appeal, the Full Bench of the Fair Work Commission overturned Commissioner Hunt’s decision and found that the dismissal was unfair.

The Full Bench considered whether the direction to use a biometric scanner, and therefore a direction for Mr Lee to provide his biometric data, was a ‘lawful and reasonable’ direction. Failure to follow a lawful and reasonable direction will often be considered a valid reason for dismissal.

Privacy Act 1988 (Cth)

The Full Bench found that Superior Wood had failed to follow its obligations under the Privacy Act when it directed Mr Lee to provide his biometric data.

Importantly, biometric data is ‘sensitive information’ for the purposes of the Privacy Act. The Full Bench found that Superior Wood required Mr Lee’s consent before it collected his sensitive information. Mr Lee was unwilling to provide his consent and therefore did not have the right to collect his sensitive information.

The Full Bench also found that Superior Wood should have provided more information to Mr Lee and other employees of Superior Wood about the collection of their sensitive information.

The Full Bench concluded that the way in which Superior Wood implemented the scanners was unlawful because it was in breach of the Privacy Act. Therefore, the direction to use the scanners was not a ‘lawful’ and reasonable direction. Instead, the direction was unlawful. Accordingly, the failure to follow the direction was not a valid reason for dismissal and the dismissal of Mr Lee was unfair.

Mr Lee was eventually awarded six (6) months compensation for the dismissal, being the statutory cap that the Commission could award him.

Ramifications

The ramifications of the decision are important for employees and employers. Both parties need to consider their obligations and rights under the Privacy Act regarding sensitive information.

Employees should consider when their employer is asking them to provide sensitive information. If the employer is asking the employee to provide sensitive information, then an employee may have the right to refuse that direction if they have not provided consent for the sensitive information to be collected. Employees should consider any policies and contracts they have agreed to, as they may have provided consent when they agreed to those documents.

Employers should be aware that if an employee does not give consent to the collection of sensitive information, then its likely an employer’s direction to provide sensitive information will not be a lawful direction. Employers can rectify this issue by having a policy or contractual term that deals with the collection of sensitive information and asking employees to agree to those terms on commencement of employment.

dos and donts of a office party

Can My Employer Direct Me to Attend an Independent Medical Examination (IME)?

By | Unfair Dismissal

Has your employer directed you to attend a medical examination by a doctor of their choice?  You may be questioning whether your employer has the right to require you to attend that independent medical examination (IME).

Every case is different and the answer as to whether you are obligated to attend an IME at the directive of your employer may vary from case to case.

Work Health and Safety laws impose strict obligations on employers to ensure the safety and well-being of its employees, and on employees to ensure their own health and safety at work.  For example, in New South Wales, the Work Health and Safety Act 2011 (NSW) imposes duties and obligations upon an employer between sections 19 and 26, and at section 28 for employees.

In order to abide by their obligations, an employer may request an employee to attend a medical examination to confirm their fitness for work.  For example, this may occur in the following circumstances:

  • if an employee is proposing to return work following a workplace injury;
  • if an employee has been on restricted duties for an extended period of time and is about to return to full duties; or
  • if an employee has been on an extended period of sick leave.

There are several ways that an employer may require an employee to attend an IME, such as:

  • a term in an employment contract or enterprise agreement expressly provides an employer with a right to direct its employees to attend an IME in certain circumstances;
  • an employer may be given an express right to send employees to an IME under legislation that applies to a particular industry or sector that an employee works in. For example:
  • coal mine workers in Queensland are obligated to comply with instructions given that are related to health and safety, including a direction to attend a medical appointment pursuant with section 39 of the Coal Mining Safety and Health Act 1999 (Qld) and determined by the Full Court of the Federal Court in Grant v BHP Coal Pty Ltd;
  • Commonwealth public sector employees may be directed by their agency head to attend a medical examination for the purposes of assessing the employee’s fitness for work as prescribed under regulation 3.2 of the Public Service Regulations 1999 (Cth).
  • an employer asking an employee to attend an IME and that employee agrees; or
  • an employer issues an employee a lawful and reasonable direction for the employee to attend an IME.

Is an employer’s request for an employee to attend an IME a lawful and reasonable directive?

An employer has a right at common law to issue their employees with a lawful and reasonable directive, which employees are obligated to obey.

The Full Court in Blackadder v Ramsey Butchering Services Pty Ltd found that an employer also has a right to request an employee to attend an IME if there is genuine indication of a need for it and it is reasonable for your employer to make such a request.

Based on the authority of Blackadder, Commissioner Roe of the Fair Work Commission considered in Daniel Cole v PQ Australia Pty Ltd that a number of factors needed to be taken into consideration when determining whether an employer’s request for an employee to attend a medical examination was reasonable.  These factors include:

  • whether there is a genuine indication of the need for the examination, such as:
  • prolonged absences from work;
  • absences without explanation; or
  • evidence of an illness which relates to the employee’s capacity to perform the inherent requirements of their job;
  • whether the employee provided adequate medical information to the employer to explain absences and demonstrated the employee’s fitness to perform their duties;
  • whether the industry or workplace works in is particularly dangerous or risky;
  • whether the employer has legitimate concerns that an employee’s injury or illness will impact on others in the workplace;
  • whether an employee was advised of the details of the conduct which led to the employer’s concerns that the employee was not fit for duty;
  • whether the medical practitioner of the employer’s choice has been advised of the issues of the employer’s concerns and were those matters focused on the employee’s inherent requirements to perform the job;
  • what information the employer proposed to give the medical practitioner about the employee’s actual job requirements;
  • whether the employee was advised of the matters to be put before the medical practitioner for their assessment; and
  • whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.

Employer’s do not have an unfettered right to direct its employees to attend an IME.  However, employees should be mindful before refusing to attend an IME at the directive of their employer’s, because failing or refusing to abide a lawful and reasonable directive may result in disciplinary action, including termination of their employment.

If you have been directed by your employer to attend an IME, make sure you obtain as much information as possible from your employer, including:

  • the reasons why your employer is directing you to attend an IME;
  • the questions your employer intends to ask the medical examiner;
  • the documents your employer intends to provide the medical examiner; and
  • the nature of the proposed medical examination, whether it will be a physical or psychological assessment.

If you have any questions or require advice if you are required to attend an IME at the request of your employer, please contact our office on 1300 851 430 to speak with one of our employment lawyers.

unfair dismissal compensation

Conflicting medical evidence: Who makes the final call?

By | Unfair Dismissal

Recently, the Full Bench of the Fair Work Commission (‘Full Bench’) in CSL Limited T/A CSL Behring v Chris Papaioannou was asked to determine whether an employer or the Fair Work Commission makes the final call on whether an employee has capacity to perform their role when there is conflicting medical evidence.

Background

Mr Papaioannou was employed by CSL Limited T/A CSL Behring (‘CSL’) from 1 July 2008 until 6 July 2017 as a ‘Plasma Receipt Operator’. On 6 July 2017, CSL terminated Mr Papaionnou’s employment on the basis that he did not have capacity to perform his role due to a medical condition. At the time of termination, CSL had to hand two conflicting medical reports in relation to Mr Papaioannou.

What’s the relevant legislation?

Section 387 of the Fair Work Act 2009 (Cth) (‘the Act’) sets out the criteria that the Fair Work Commission must consider whether a dismissal was unfair. In particular, subsection (a) says:

the FWC must take into account:

  • Whether there was a valid reason for the dismissal related to the person’s capacity or conduct” (emphasis added)

In the Commission decision of Lion Dairy & Drinks Milk Ltd v Norman  (‘Lion Dairy’) the majority of the Full Bench decided that in the case of conflicting medical evidence concerning an employee’s capacity, it was up to the employer to resolve the conflict. So long as an employer had reasonably relied on the medical evidence before them in determining that an employee no longer had capacity to perform work, the employer would have a ‘valid reason’ for termination.

Lion Dairy was contrary to an earlier decision of the Full Bench in Jetstar Airways Ltd v Neetson-Lemkes  (‘Jetstar’). In Jetstar the Full Bench decided that it was the Commission’s role to determine whether at the time of dismissal an employee did not have capacity to perform work based on the relevant medical evidence, not the employers.

Initial Decision

At the first instance in the Papaioannou case, Commissioner Ryan determined that there was a ‘valid reason’ for CSL to terminate Mr Papaioannou’s employment based on his incapacity to perform his role.

Commissioner Ryan based his decision on a medical report that CSL had at the time of the dismissal that argued Mr Papaioannou would not have capacity for work for the foreseeable future. This was despite CSL being in receipt of a different medical report that estimated Mr Papaioannou could return to work within 6 months. In doing so, Commissioner Ryan adopted the reasoning in Lion Dairy.

Despite finding that there was a valid reason for CSL to dismiss Mr Papaioannou based on his incapacity, Commissioner Ryan granted the application for other reasons. CSL appealed the decision of Commissioner Ryan.

Appeal

On appeal, the Full Bench quashed the decision of Commissioner Ryan and remitted the matter for re-hearing. The Full Bench was asked to consider the conflicting authorities on the question of how medical evidence is used in determining whether an employee had the capacity to perform their role.

The Full Bench reviewed the cases interpreting unfair dismissal provisions in both the Fair Work Act 2009 (Cth) and previous iterations. They concluded that the decision in Lion Dairy was wrong and that the correct approach to conflicting medical evidence should be the one adopted in Jetstar. That being, in a case where employers have conflicting medical evidence in respect of an employee’s capacity for work, it is up to the Commission to resolve the difference, not the employer. As a result, Commissioner Ryan erred when adopting the approach in Lion Dairy and the matter should have instead been decided using the reasoning in Jetstar.

Lessons for employees

As a result of the Full Bench ruling, it is not a defence to an unfair dismissal application for an employer to rely on its preferred medical evidence where conflicting evidence exists.  Instead, if there is conflicting evidence in relation to an employee’s capacity to perform work, the Fair Work Commission has the role of determining whether an employee had capacity by reviewing the medical evidence.

If you are an employee who has been dismissed because of medical evidence, you should consider talking to an employment lawyer about any potential options you may have, particularly when that evidence is conflicting.

Jeremy Lee was a casual employee who was unfairly dismissed

Casual Conversion Clause

By | Unfair Dismissal

Are you a long-term casual employee? Do you know you probably have the right to request that your employment be converted to a part-time or full-time basis?

In July 2017, the Full Bench of the Fair Work Commission (‘the Commission’) ruled that regular casual employees who were employed for more than 12 months and met certain criteria had the right to request that their employment be converted to full-time or part-time employment.

The Commission ordered that the new casual conversion clause be inserted into 85 modern awards from 1 October 2018. If you are covered by a modern award, it is likely that the casual conversion clause applies to your employment.

Criteria

In a nutshell, the casual conversion clause gives ‘regular’ casual employees the right to request to their employer that their employment be converted to part-time or full-time. A regular casual employee is defined as:

…a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

 

The Request

A casual employee’s request for conversion must be in writing and the employer must respond to the request in writing within 21 days. The employer can only refuse the request on ‘reasonable grounds’ and after consulting with the employee.

Reasonable Grounds

As stated, an employer can only refuse a casual employee request for conversion on ‘reasonable grounds.’ The casual conversion clause sets out a number of factors that include reasonable grounds for refusal. These include:

  • it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee;

 

  • it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

 

  • it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months;

 

  • it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.”

 

Are you a regular casual employee?

If you think you are a regular casual employee, it may be worth considering whether you should exercise your right to request conversion to full-time or part-time employment if you are covered by a modern award. If you do make a request and your employer refuses your request, you should consider whether your employer has made its refusal to you in writing, within 21 days, and whether your employer has applied the factors that can be considered as reasonable grounds for refusal. If you feel your employer has not complied with its obligations under the casual conversion clause, you should consider speaking to an employment lawyer.

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.

working overtime questions

Working Overtime? What are your Rights?

By | Unfair Dismissal

Know Your Rights with Overtime Work

Your employer has asked you to stay back to work a few more additional hours this week – can they do this?

Your employer can request that you work overtime, but only if it is reasonable in the circumstances.

The maximum weekly hours of a full-time employee are 38 hours per week. The maximum number of hours of an employee who is not a full-time employee is the employee’s ordinary number of hours per week, which also must be less than 38 hours.

Overtime is the work that you perform for your employer that is:

  • over your ordinary hours of work (such as over 38 hours);
  • beyond your agreed upon number of hours; and/or
  • outside the spread of ordinary hours. This is the hours in the day that your ordinary hours can be worked.  These are set out in your applicable award (such as between 8:00am and 6:00pm).

To determine whether overtime is reasonable includes the following considerations:

  • if there is a risk to your health and safety;
  • your personal circumstances and family responsibility;
  • the operational needs of your workplace;
  • whether you are entitled to receive compensation such as overtime rates and penalty rates for working overtime;
  • the nature of your role and level of responsibility;
  • how much notice is given to you by your employer; and
  • how much notice you give your employer that you cannot work the overtime (if you refuse).

If an award applies to your employment or an enterprise agreement, this instrument will set out the applicable overtime rates or penalty rates that are to be paid to you and when these payments apply.  Make sure you review the instrument that applies to you to ensure you know the applicable rates of pay.  Even if you have an individual contract of employment and it does not say anything about an award, this does not mean that an award does not apply to you.  So it is a good idea, to check what award may apply to your employment to make sure that you know your minimum entitlements.

You may have an employer that pays you above the minimum rate of pay set out in the applicable award.  However, this does not mean that you are not entitled to receive additional payments for overtime.  There are certain rules for ‘all-inclusive’ rates of pay that your employer must implement.  If your employer has not set out in writing what exactly is included in your rate of pay, then you may be entitled to a separate payment for any overtime worked despite the above award rate of pay paid to you.

If you are not sure about your entitlements, do not hesitate to contact Anderson Gray, we are lawyers for employees and are here to help you.

know how much you should be paid

Are you a Trainee or Apprentice? Do you Know What you Should be Paid?

By | Unfair Dismissal, Unpaid Wages

Knowing How Much You Should Be Paid

If you are a trainee or apprentice you ought to check that your employer is paying you the correct rate of pay.  If a modern award applies to you, then this workplace instrument covers your employment and sets out the minimum wages that apply to you (unless an enterprise agreement applies to you).

In some states, employers have been paying wages according to a state instrument.  For example, in Queensland, many employers would pay their apprentices with respect to the Order of Apprentices’ and Trainees’ Wages and Conditions (Excluding Certain Queensland Government Entities) 2003.  Queensland Awards and Orders that were Notional Agreement Preserving State Awards (NAPSA), such as the above Order, allowed for State Awards created prior to 27 March 2006, to continue to operate post the introduction of the modern awards system by the Federal Government in 2009.

In 2017, this view changed when the Fair Work Commission found that these instruments are no longer in force and have not continued to operate post 1 January 2014.

In light of this, your employer may not be paying you correctly.  If you think this may apply to you, check your applicable modern award at www.fwc.gov.au to confirm the correct rate of pay.

If you are not being paid correctly and are receiving a lesser amount then you are entitled to you may have an unpaid wages claim.  Did you know that you have six years in which to make an unpaid wage claim?  This means that you can make a claim for unpaid wages that goes back up to six years.

If you need any assistance, do not hesitate to contact Anderson Gray lawyers here in Melbourne, Sydney, and Brisbane – we are here to help.

taking annual leave

Do you Know your Annual Leave Rights?

By | Unfair Dismissal

Understanding your Rights to Annual Leave

Most modern awards now contain additional annual leave provisions that include the ability to:

  • cash out annual leave;
  • take annual leave in advance;
  • manage excessive annual leave balances; and
  • make payment for annual leave during the period of leave.

You are most likely aware that the Fair Work Commission varied a number of modern awards, but do you know all the changes and how they may apply to you?

Cashing out annual leave

You and your employer can make an agreement in writing to cash out your annual leave.  Each time an employee wishes to cash out their leave, a new agreement must be made between you and your employer.  The agreement must state the amount of leave to be cashed out and the amount of the payment to be made to you, including the date the payment is made.

It is important to note that the payment made to you must not be less than the payment you would have received if you had actually taken the period of leave.

However, there are some rules in relation to how much leave you are able to cash out.  The agreement to cash out annual leave must not leave you with an accrued annual leave entitlement of less than four weeks, and you are not permitted to cash out more than two weeks of leave in a 12 month period.

Taking annual leave in advance

You can take a period of paid annual leave before you have accrued an entitlement to take the leave if:

  • your award says you are able to; and
  • your employer agrees in writing to the advance payment.

The agreement between you and your employer must state the amount of the leave to be taken in advance and the date on which the leave is to start.

So you are aware, if your employment ends prior to you accruing the amount of the entitlement that you have taken in advance, your employer has the right to deduct any money owing from your final pay.

Managing excessive annual leave balances

If you have accrued an ‘excessive’ leave balance of at least eight weeks, you and your employer can reach an agreement to reduce your excessive leave balance.

If you and your employer cannot reach an agreement, then you can make a request in writing that you take a period of paid annual leave. However, you must have had your excessive leave balance for at least six months and your employer must not have issued a direction that would result in your excessive leave accrual being eliminated.  Any request must not result in your accrued annual leave balance being less than six weeks.

Your employer can also direct you to take annual leave in writing.

Anderson Gray lawyers are lawyers for employees in Sydney, Australia.  We are here to help you. Contact us today if you have any questions about your workplace entitlements.

What is 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 enterprise employers in Queensland, New South Wales and South Australia. This includes employing entities who are sole traders, Pty Ltd entities and partnerships;
  • private enterprise and 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 is calculated by a simple headcount of all employees and includes casual employees who are employed on a regular and systematic basis at the time of dismissal; and
  • they earn less than the high income threshold. 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.

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.

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 $74,350, because at the time of writing, the high-income threshold is (and will remain until 30 June 2020) $148,700.

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, as well as things like the length of an employee’s service, the effect of the compensation on the viability of an employer’s business, the efforts of the employee to mitigate their loss and any other matter the Commission considered relevant.
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.

Unfair Dismissal FAQ

What qualifies as unfair dismissal?

A person has been unfairly dismissed if the FWC is satisfied that:

  • the person has been dismissed; and
  • the dismissal was harsh, unjust or unreasonable; and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • the dismissal was not a case of genuine redundancy.

What are the 5 fair reasons for dismissal? 

  • Conduct of an employee that may amount to misconduct or serious misconduct
  • An employee is unable to perform the inherent requirements of their role
  • Unsatisfactory performance where the employee has been warned about their poor performance by their employer and be notified of the need to improve their performance prior to their dismissal
  • Genuine redundancy
  • Expiry of a fixed term contract

Can I claim for unfair dismissal?

A person can make an unfair dismissal claim in the Fair Work Commission for reinstatement or monetary compensation if they:

  • have been unfairly dismissed by their employer or their employer has forced them to resign;
  • 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 is calculated by a simple headcount of all employees, including casual employees who are employed on a regular and systematic basis at the time of dismissal; and
  • earnt less than the high income threshold;

Can you get fired without a written warning?

An employer does not have to give an employee a written warning to terminate their employment.  However, an employer does have to give an employee an opportunity to rectify any performance issues.  If an employer terminates an employee, who then makes an unfair dismissal claim, the Fair Work Commission will take into consideration:

  • whether the employee had been warned about the poor performance before the dismissal; and/or
  • whether the employee was given an opportunity to rectify the poor performance issues before the dismissal.

Do I have grounds for unfair dismissal?

 An employee can make an application for an unfair dismissal claim if they meet the following criteria:

  • 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 is calculated by a simple headcount of all employees, including casual employees who are employed on a regular and systematic basis; and
  • they earnt less than the high income threshold (being $148,700 until 30 June 2020). However, if an employee earns more than the high income threshold, but a modern award or enterprise agreement covers their employment, then the employee may still be eligible to make a claim; and
  • they have been dismissed. 

What is automatically unfair dismissal?

Under Australian law there is no automatic right to pursue a claim for unfair dismissal.  There are no circumstances that “automatically” result in an unfair dismissal.  To see information on “What qualifies for unfair dismissal?” review the other information provided above.

What is summary dismissal?

A summary dismissal is a dismissal for serious misconduct with immediate effect and without notice or payment in lieu of notice.  

How do you challenge unfair dismissal?

An application for unfair dismissal must be made within 21 days of the dismissal becoming effective.  A person who has been unfairly dismissed can commence proceedings by filing an unfair dismissal application (Form F2) in the Fair Work Commission.  State public sector employees and/or local government employees, may not be covered by the Fair Work system and may need to file the appropriate unfair dismissal application form in their respective State Industrial Relations Commission or Tribunal.

What constitutes wrongful dismissal?

A wrongful dismissal is when an employer terminates an employee’s employment contract, and the termination breaches a term or terms of the employment contract.  For instance, the employer terminates an employee’s employment contact and has failed to comply with the notice period provision under the employment contract.

Can I take my employer to court for unfair dismissal?

Yes, but only if the dismissal is not for a valid reason and/or the process undertaken to dismiss you was procedurally deficient.  In other words, that it was not done properly.

If you have been unfairly dismissed, you must make a claim to the Fair Work Commission, which is Australia’s national workplace relations tribunal, within 21 days from the date the dismissal takes effect.    State public sector employees and/or local government employees may not be covered by the Fair Work system and may need to file the appropriate unfair dismissal application in their respective State Industrial Relations Commission or Tribunal.

What law covers unfair dismissal?

Under the Fair Work Act 2009 (Cth) an employee of a national systems employer is able to make a claim to the Fair Work Commission for an unfair dismissal remedy.   State public sector employees and/or local government employees may not be covered by the Fair Work system, and therefore, may be covered by their respective State Industrial Relations laws.

What happens at an unfair dismissal conciliation conference?

When a person lodges an application for unfair dismissal they are commencing legal proceedings against their former employer.  A copy of the application will be sent to the employer by the Fair Work Commission, who will ask the employer to respond to the application.  The Fair Work Commission will facilitate a conciliation conference, which is a voluntary process, to assist the employer and the employee in resolving the unfair dismissal dispute.  If no agreement is reached between the parties at the conciliation conference, the matter will automatically proceed to a formal conference or hearing, unless the employee decides to discontinue their matter.

What is the average payout for unfair dismissal?

In circumstances where the Fair Work Commission is satisfied that a person has been unfairly dismissed from their employment and reinstatement of the person is inappropriate, the Fair Work Commission may order the payment of compensation.  In calculating the amount of compensation there are a number of factors that the Fair Work Commission must take into consideration when deciding if compensation should be ordered, which is determined on a case by case basis.  The maximum amount of compensation that can be awarded is capped at the lesser of:

  • the total amount of remuneration received by the person, or to which the person was entitled to receive (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; or
  • half the amount of the high income threshold before the dismissal, being $148,700 as of 1 July 2019, which is increased annually.

This means the maximum amount of compensation that can be awarded by the Fair Work Commission is $74,350 until 30 June 2020.  Compensation cannot be awarded for shock, distress, hurt or humiliation.

What is fair compensation for unfair dismissal?

In circumstances where the Fair Work Commission is satisfied that a person has been unfairly dismissed from their employment and reinstatement of the person is inappropriate, the Fair Work Commission may order the payment of compensation.  In calculating the amount of compensation there are a number of factors that the Fair Work Commission must take into consideration when deciding if compensation should be ordered, which is determined on a case by case basis.  The maximum amount of compensation that can be awarded is capped at the lesser of:

  • the total amount of remuneration received by the person, or to which the person was entitled to receive (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; or
  • half the amount of the high income threshold before the dismissal, being $148,700 as of 1 July 2019, which is increased annually.

This means the maximum amount of compensation that can be awarded by the Fair Work Commission is $74,350 until 30 June 2020.  Compensation cannot be awarded for shock, distress, hurt or humiliation.

Is it better to quit or be fired?

A person is dismissed when their employment has been terminated at the employer’s initiative or they were forced to resign because of the conduct or course of conduct engaged in by the employer.  If a person resigns from their employment then they may not be eligible to make an unfair dismissal application, unless they can prove that the employer forced their resignation.

What to do when you are fired unfairly?

If you have received notice from your employer that your employment has been terminated, you should immediately seek legal advice as you may be eligible to make an unfair dismissal claim against your employer.  An unfair dismissal application must be lodged within 21 days the dismissal becomes effective.

Do employers have to give written warnings before firing?

An employer does not have to give an employee a written warning prior to terminating their employment.  However, an employer does have to give an employee an opportunity to rectify any performance issues.  If an employer terminates an employee, who then makes an unfair dismissal claim, the Fair Work Commission will take into consideration:

  • whether the employee had been warned about the poor performance before the dismissal; and/or
  • whether the employee was given an opportunity to rectify the poor performance issues before the dismissal.

 

unfair dismissal reasons

What is a Fair Reason for Dismissal?

By | Unfair Dismissal

Your boss has just fired you – was the reason for your employment being terminated by your employer fair?

An employer cannot dismiss an employee without a valid reason.  The reason must be sound and well founded, not fickle, fanciful or prejudiced.

If the reason your employer dismissed you is valid and your employer undertook a fair and reasonable process in managing your dismissal, by (for example) notifying you of the reason for your dismissal and giving you an opportunity to respond to the reason, then this may amount to your dismissal being fair.  However, no case should be determined without considering all of the facts and circumstances relating to the matter.  If you would like to discuss your situation with an unfair dismissal expert, contact Anderson Gray Lawyers today and tell us your story.  We are here to help.

A valid reason for dismissal may relate to an employee’s conduct, capacity, performance or redundancy.

Conduct

Conduct of an employee that may amount to misconduct, is behaviour of an employee that is not appropriate at the workplace or in breach of the employee’s contract of employment.  The following are a few examples of what may constitute misconduct:

  • 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;
  • being dishonest;
  • having a poor attitude and engaging in poor behaviour 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.

However, each individual circumstance is different.  It depends on the nature of the conduct in the particular circumstances and the employee’s history as to whether the conduct in question is a valid reason to terminate the employee’s employment.

Just because you have engaged in the above conduct, does not always mean that dismissal was the right answer or that the dismissal was fair.

Capacity

Capacity refers to the employee’s ability to do the job required by their employer and the work they were employed to do, that is, the ‘inherent requirements’ of their position of employment.

If you are unable to perform the inherent requirements of your role, then that may be a valid reason to terminate your employment.

Incapacity may be due to a medical reason and the medical reason means that you are unable to perform the requirements of your role. However, the Fair Work Act does provide protections for employees.  Your employer cannot dismiss you if you have been temporarily absent from work due to an illness or injury for up to a three month period (or up to three months in total over a 12 month period) or if you are absent on paid personal/carer’s leave for the duration of your absence from work.

This area of the law is complex.  If you have been dismissed for incapacity, please contact Anderson Gray Lawyers to discuss your situation and if you may have the grounds to lodge a claim.

Performance

An employee may be dismissed from their job for poor performance.  Generally, poor performance is when an employee has not been performing their role to a satisfactory standard.

If you have been under-performing in your role, this may be a valid reason for dismissal.  Nevertheless, you ought to have been warned about your poor performance by your employer and be notified of the need for you to improve your performance prior to your dismissal.  Generally, when determining an application for unfair dismissal, the Fair Work Commission likes to see that you have been given a period of time in which to improve your performance.  If you have not been warned that your performance at work is sub-standard and given a chance to improve your performance, then this may not be a valid or fair reason for terminating your employment.

Redundancy

If your position of employment was made redundant, this will be a fair reason if the redundancy was ‘genuine’.

The Fair Work Act provides that a redundancy is a genuine redundancy if:

  • your employer no longer requires your job to be performed by anyone due to operational changes in your workplace;
  • your employer consulted with you about the proposed redundancy. That is, discussed with you the proposed change (i.e. making your position of employment redundant) and if there were any alternative options or ways to minimise the adverse effect of this change on you; and
  • it was not possible to re-deploy you into another job in the business or an associated entity of your employer.

The Process

Despite the reason for dismissal, it is important to note that the process adopted by your employer in managing your employment must also be fair.  That is, you must be notified of the reason for your dismissal, given an opportunity to respond, permitted a support person (if you request one) to assist you at any meetings relating to your dismissal and warned about your poor performance (if your dismissal relates to your performance).

Anderson Gray Lawyers are unfair dismissal experts and we are here to help.  If you think that the reason you were dismissed was not fair – do not delay, contact us immediately!  Remember that you have 21 days in which to lodge an application for unfair dismissal with the Fair Work Commission from the date your dismissal took effect.

who is protected from unfair dismissal

Who is Protected from Unfair Dismissal?

By | Unfair Dismissal

Persons Protected from Unfair Dismissal

If you are an employee, you are protected from unfair dismissal if:

  • your employer is an employer who is covered by the Fair Work Act; and
  • you meet the eligibility requirements set out in the Fair Work Act.

Is my employer required to comply with the Fair Work Act?

If an employer is a ‘National System Employer’, then they are required to comply with the rules set out in the Fair Work Act.  A National System Employer includes:

  • private enterprise employers in New South Wales, Queensland and South Australia;
  • private enterprise and 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;
  • the employers of waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce; and
  • employers that are constitutional corporations in Western Australia (including Pty Ltd companies)—this may include some local governments and authorities.

The following employers are not National System Employers?

  • 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.

What are the eligibility requirements?

An employee can make an application for unfair dismissal if they meet the following criteria:

  • you have completed the minimum period of employment. The minimum period is either 6 months if you work for an employer who employs 15 or more employees or 12 months if you work for an employer who has less than 15 employees. The number of employees is calculated by a simple headcount of all employees, including casual employees who are employed on a regular and systematic basis at the time of dismissal; and
  • you are employed pursuant to an industrial instrument such as an Award or enterprise bargaining agreement; or

If you are a not employed pursuant to an industrial instrument and you earn more than the high income threshold then the Fair Work Commission will not have jurisdiction to hear a complaint for unfair dismissal – although, there may be other remedies available to you.

However, if you earn more than the high income threshold but a modern award or enterprise agreement covers your employment you can still be eligible. Contact Anderson Gray Lawyers to find out more if you think this applies to you.

Anderson Gray Lawyers are lawyers for employees and are unfair dismissal experts.  If you feel you have been unfairly dismissed from your employment, don’t hesitate to contact us today! We have offices in Brisbane, Sydney, and Melbourne.

unfair dismissal compensation

Can You Get Compensation for Unfair Dismissal?

By | Unfair Dismissal

Unfair Dismissal Compensation

The Fair Work Commission is the workplace relations tribunal that will consider your application for unfair dismissal. There are a number of remedies available to you if the Commission determines that you have been unfairly dismissed. These include:

  • reinstating you back into the job you were dismissed from; and/or
  • compensation (this is capped at 26 weeks pay).

The Commission will seek to have your job reinstated (if practical) or into a new position that is similar in hours, responsibilities and pay. If this occurs, you will also be entitled to back pay. The Commission may also make an order that your continuity of employment will be maintained and that there will be no break in your service or accrual of entitlements.

However, if it is not practical or reasonable to reinstate you (if a working relationship is not going to work), then alternatively compensation may be ordered as a remedy. Compensation is capped at 26 weeks pay and the total amount of compensation able to be awarded is half of the high income threshold amount that applies immediately before the dismissal.

Any payments that:

  • are made to you by your employer, such as: notice payments; or
  • anything you may earn after you were dismissed by your employer;
  • will be taken into account by the Commission when it calculates the amount of compensation to be awarded.

You will not be awarded compensation for shock, distress or humiliation.

Conciliation Conferences

Did you know that you can also go to Conciliation?

Conciliation is a voluntary informal process to resolving disputes of unfair dismissal.

You and your employer can agree to a Conciliation and try and resolve the dispute in relation to your dismissal at the Conciliation. This means that if you can settle at Conciliation you do not need to go to a formal conference or hearing.

A Conciliation is private and you and your employer and the Conciliator will discuss the dispute and whether you and your employer may agree to a settlement. Settlements between you and your employer may include the following:

  • reinstatement of your job;
  • monetary settlement (compensation);
  • an apology from your employer;
  • a written statement of service from your employer;
  • payment of entitlements that have been unpaid and are owed to you by your employer (such as notice or leave payments); and/or
  • an agreement that you and your employer will not disparage (belittle or bad mouth) each other.

If you cannot reach a settlement then you can proceed to a formal hearing and the Commission will determine if you have been unfairly dismissed and if you will get your job back and/or any compensation.

Anderson Gray Lawyers are unfair dismissal experts in Brisbane, Sydney and Melbourne. If you need any further information about unfair dismissal and the options available to you, don’t hesitate to contact us today!

Am I being paid enough? What is my right rate of pay?

By | General, Unfair Dismissal, Unpaid Wages

Am I getting the right amount of pay?

You would think this is a simple question, but it’s not.  There is no doubt that today’s workplace laws are complicated.  So it is no wonder that employees have difficulty in trying to work out what their rate of pay should be in return for a days hard work.

To work out the minimum rate of you are entitled first requires you to work out whether or not you are covered by an award.  An essential feature of an award is to prescribe the rate of pay for all employees covered by that particular award.

While trying to work out what particular award applies to you is difficult, we have set out below a simple process that is designed to give you some guidance.  So:

  • Step 1, review the award title to see if it might apply. For example, employees in the construction industry, might start by looking at the Building and Construction Onsite Award 2010, because, as the name suggests, it applies to that industry.
  • Step 2, go to clause 4 of the Award (it’s the same clause for all Modern Awards) and look to see whether the award covers the industry in which your employer operates. If it does, then that award is likely to apply to you.  If the award does not cover the industry in which your employer operates, then you’ll need to look at other awards to see if they might apply.
  • Step 3, turn to the classification definitions (usually found at Appendix B), and read through the classifications to identify the classification that best fits the actual duties you do on a day-to-day basis.
  • Step 4, check the rate of pay that relates to your classification of work in the body of the Award.

You must remember that the award sets out your minimum rate of pay.  So if you are not being paid the amount that relates to your classification of work under the award, then you might be being underpaid.

If you have a contract of employment that also sets out a rate of pay, then the rate of pay stipulated in the contract must be equal to or more than the rate you are required to be paid as set by the award.  If the contract states that your pay is less than the award rate, then again, you might not be being paid the right amount.

If the contract amount is more than the award rate, then for your ordinary hours of work, you’re probably going to be being paid the correct amount.  However, if you work more than 38 hours per week (on a full time basis), or more than the agreed hours (if you are a part-time employee), then the rate of pay needs to adjust to take account of your entitlement to overtime and/or penalty rates.

If you have any questions contact one our experienced employment lawyers.


Photo by James Sutton on Unsplash

Managing your Employer

By | Unfair Dismissal

How and When to Manage Your Employer

Managing employees is a topic that is regularly discussed and debated by employers, lawyers and academics.

When you look for information about workplace laws and rights you find almost every text and article written on the topic of the employee and employer relationship relates to the rights and practices of employers and not employees.  The literature predominantly deals with managing employees in various circumstances.  An explanation for the reason for this concentration of information is that good performing, happy employees don’t need to be managed.

Very little information is available for employees to gain insight into their right (or capacity) to manage their employer – in good or bad times.

In fact, many an employer has said that managing staff is like ‘managing kids in a kindergarten’ – difficult, chaotic and with little regard to rules and procedure.  Perhaps this attitude is where a lot of employers go wrong.

Many times we have heard both the employer and employee complain and lament that they have “no rights” when it comes to the other, and so “what’s the point of doing anything?

It is our view at Anderson Gray Lawyers that employees should be given information to help them manage their employer, as in doing so, we believe that it will lead to improved job satisfaction, productivity increases and a fairer and more robust working relationship.  The premise being that a healthy working relationship, where both parties are polite and courteous in debating the matters affecting them, is best for everyone involved.

First and foremost, a worker should however focus on doing their very best at work and at the same time have an expectation of being treated fairly.

Putting the job at hand to one-side, managing an employer may be broken into three parts.

  • Firstly, accurately knowing your rights is essential.
  • Secondly, choosing the right communication medium and communication path is a strategic consideration, and requires careful thought having regard to the context of the employee’s situation.
  • Thirdly, because an employee’s ongoing employment is very rarely guaranteed, one eye should be kept on the potential claims available to an employee either during or post-employment (should the employer make the decision to dismiss the worker), and steps should be taken during the employment to solidify those claims.

So what is ‘employer’ management?

Employer management is being proactive in achieving a courteous and fair outcome for the employee during periods of both high performance and non-performance.  Put another way, ‘employer management’ is essentially an employee adopting a proactive approach to ensuring that they are treated properly and fairly in the workplace.

At Anderson Gray, we believe that being proactive in managing your relationship with your employer (or manager) is a skill that all employees should learn and develop.

What are the key steps to managing my employer?

As stated above, knowing your rights is a key element to managing your employer.  Making a demand on your employer that is wrong in either fact or law can be fatal to the employment relationship.  For example, knowing which award applies to your work and identifying your minimum rate of pay, is essential to raising a concern about an alleged underpayment of wages.

There are many sources of information about employee entitlements.  For example:

  • Government supplied services such as the Fair Work Ombudsman produce a large volume of information about employee entitlements;
  • Trade unions;
  • The internet – although care needs to be taken with the information available on the internet;
  • Professional services such as lawyers and industrial advocates.

At Anderson Gray, we publish information on our website and Facebook through blogs, articles and information sheets, which are all designed to give the factual, accurate information about employee rights.

When is it appropriate to manage my employer?

In my view, each engagement with the employer (or a more senior management figure) presents a unique opportunity to manage your employer.  Each such engagement presents an employee with an opportunity to display value and build rapport.  Each engagement enables an employee to show respect and to be respected for the job they are doing. It also creates a moment whereby an employee can question and/or clarify any concerns they have about their work or the workplace generally.

Of course, employees need to be mindful of the timing, location and forum in which to raise questions or seek clarification about work related matters.  Raising a personal conflict with a manager in a weekly team meeting (for example), is not good timing, nor a good forum in which to raise such an issue.  And the same rule applies to employers and managers.

As an employee, you have the right to be treated fairly in the workplace.  If an employee (acting reasonably) believes that there are instances where they are not being treated fairly, then raising the unfair treatment with the employer in a timely, polite and respectful manner is appropriate.

It is also recommended practice for an employee to record details of ‘management type’ conversations.  Our view at Anderson Gray is that employees should be proactive in creating records about work related matters.  It is often the case that employees wait for confirmation from their employer as to the outcome or management of a particular matter.  But why wait?  In our view, it is appropriate for the employee (for example) to send a brief e-mail summarising a conversation or outcome to their manager or employer, ensuring that the employees version of events is recorded.

And here’s a nod to the last point – keeping an eye on potential claims.  We are often confronted with the situation where the employee is required to try and remember facts and circumstances without the assistance of records or notes.  Either that, or the only information available is the information recorded by the relevant manager or employer.  This immediately makes the task of pursuing a genuine claim more difficult, because the ‘written’ evidence is not favourable and is not an accurate account of the events.

In very brief summary, managing your employer can take various forms and can be as sophisticated as you would like it to be.  Here are some tips for the employee:

  • As an employee, you have the right to be treated fairly in the workplace. If an employee (acting reasonably) believes that there are instances where they are not being treated fairly, then raising the unfair treatment with the employer in a timely, polite and respectful manner is appropriate.
  • Making accurate, contemporaneous notes (with sufficient detail).
  • Know your rights as an employee and bring your employer’s attention to those matters when there has been a contravention of those rights.

Thanks for taking the time to read this article.

The Anderson Gray Brisbane Team.

Don’t Suffer in Silence! You CAN Ask Questions about your Entitlements

By | General, Unfair Dismissal

Enquiring of your Entitlements

The Fair Work Act provides that an employee is entitled to make a complaint or enquiry about their employment. It also provides that an employee should not be treated adversely because they made a complaint or enquiry about their employment.

A recent decision handed down by the Federal Circuit Court has identified that the court is willing to impose hefty penalties on employers (and individual directors) for treating an employee adversely after the employee made a complaint about his wages. In the case of Fair Work Ombudsman -v- Windaroo Medical Surgery Pty Ltd & Ors [2016] FCCA2505 (28 September 2016), Judge Jarrett penalised the Surgery and two of its directors because:

1. they threatened to stop paying a Doctor who had complained to the FWO about not being paid;

2. they did stop paying him until the Doctor resigned a few months later.

The Surgery and its Directors were collectively penalised over $50,000 for their involvement in the poor treatment of their employed Doctor.

The message here is that, as an employee, you have the right to complain to your employer about your workplace entitlements. If you suffer a loss because of that complaint, then the employer will be taken to have breached certain provisions of the Fair Work Act and you are likely to be entitled to compensation.

If you think that this has happened to you, then please give us a call.

AGL Team

Lawyers for Employees – specialising in unfair dismissal claims


 

How can a hat get you fired?

By | Unfair Dismissal

A mine worker was recently successful in receiving $28,000 in unfair dismissal compensation.  There were a few other circumstances but the core of the reason or his dismissal related to comments he made about his supervisor’s hat on Facebook.

The Fair Work Commission found the comments were misconduct but held dismissal was unfair because management failed to disclose that it had relied on a secret report into broader bullying allegations.

The maintenance fitter at CBH Resources’ Rasp Mine in Broken Hill had been one of several employees who had liked and responded to a Facebook photo of a colleague wearing a cap with an exaggerated peak.

His comments made from his iPhone at home included “I’ve seen f–kwits with bigger peaks on their hats” and were allegedly directed at his supervisor who wore similar-sized caps.

When the supervisor saw the posts and complained, CBH Resources fired the fitter for belittling and ridiculing a fellow employee who had been left “broken” and considering quitting.  The fitter claimed his comments were not directed at the supervisor but a group of New Zealand shearers who had worked on his farm and dressed like “rappers” with big peaks on their hats.

But Commissioner Peter Hampton found that explanation was not convincing and held that, given the notoriety of the hat in the workplace, the fitter “at best” knew others would get the reference.

So there you have it, just because there might be a shared joke around the workplace doesn’t mean you should share comments about it on Facebook.

In this case the worker got a good result but it could easily have been otherwise.

 

Original story published on AFR.com.au,12 October 2016. “Mine worker unfairly fired for slagging boss’ cap on facebook”