Category

Unfair Dismissal

casual worker

FWC finds casual work can be ‘regular and systematic’ for determining length of service

By | Unfair Dismissal

Fair Work Australia Excerpt on Casual Employment

A recent case before the Fair Work Commission (Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019)  discussed how an employee can still be a ‘regular casual’ with ‘irregular hours’. This case considered a period of casual employment and whether it counted towards an employee’s length of service for the purposes of being eligible to make an unfair dismissal application.

In the case that was determined late last year, Ms Amy Greene, a food and beverage attendant, was employed as a casual from 24 February 2019 until 20 January 2020 (approximately 11 months). Between 20 January 2020 and her dismissal date on 16 April 2020 (approximately 3 months), she was employed on a permanent full time basis.

Ms Greene brought an unfair dismissal application alleging that she was unfairly dismissed by her employer. The employer made a jurisdictional objection (an objection wherein the employer claims that the Fair Work Commission does not have the power to deal with the claim) claiming that Ms Green had not met the minimum employment period.

In order to be eligible to make an unfair dismissal application, an employee must meet the minimum employment period. For employees of a small business (less than 15 employees), they must have been employed for a minimum of twelve (12) months. For employees of a business that is not a small business (15 or more employees), they must have been employed for a minimum of six (6) months.

FIRST INSTANCE

At first, the Fair Work Commission considered whether Ms Greene had met the minimum employment period to be eligible to be protected from unfair dismissal.

The Commission noted that the employer was not a small business, and therefore, the minimum employment period required to be met by Ms Greene was six (6) months. The Commission rejected Ms Greene’s claim for unfair dismissal, noting:

  • On review of her timesheets, her actual hours of work varied widely from week to week and she did not work consistent hours each week;
  • The irregularity in her hours of work did not support a reasonable expectation of regular and systematic work;
  • Her employer made it clear that Ms Greene should not, and could not, expect ongoing employment on a regular and systematic basis while employed on a casual basis, and Ms Green would seem to have accepted this to be true by signing the contract for permanent employment; and
  • Ms Green did not have a reasonable expectation of continuing employment on a regular and systematic basis.

SECOND INSTANCE – APPEAL

Ms Greene appealed the Commission’s decision. On appeal, the Commission allowed Ms Greene’s claim of unfair dismissal to proceed finding that she had met the minimum employment period, noting:

  • Ms Greene’s period of casual employment was on a regular and systematic basis. It was regular as her timesheets show that, apart from periods in which she took holidays, Ms Greene was consistently engaged to work substantial numbers of hours in every week;
  • It was on a systematic basis because she worked in accordance with a roster that was established by the employer in consultation with her. Regular casual work undertaken in accordance with an established rostering system may reasonably be described as systematic in nature;
  • Ms Greene had a reasonable expectation of continuing casual employment on a regular and systematic basis. This expectation arose from the fact that, pursuant to a roster system, she was employed every week to work substantial numbers of hours except when taking pre-arranged leave, and that she was involved in the preparation of the rosters;
  • Ms Greene felt sufficiently secure in her casual employment that she was able to reject the employer’s initial offer of permanent full-time employment after returning from holiday between September and October 2019 and she continued to be employed regularly and systematically afterwards notwithstanding this;
  • Whatever the employer may have said to Ms Greene in relation to not expecting regular and systematic hours, this is not what the employer actually did. The timesheets show that Ms Greene continued to be employed regularly and systematically after these statements and up until the time she accepted permanent employment. This necessarily led to the expectation of continuing employment which Ms Greene held during her period of casual employment.

Take Aways

Casual work can be ‘regular and systematic’ for the purposes of counting towards length of service. It does not have to follow a particular pattern of similar shifts or similar hours. This applies regardless of what the employer may have communicated to the employee about what their expectations should be, it is the actual nature of the engagement that is most telling.

If you are a casual employee and are unsure if you would be considered a ‘regular and systematic’ casual or believe you have an unfair dismissal claim but are not sure if you have met the minimum employment period, contact us at Anderson Gray Lawyers to assist you with your enquiry.

The case referred to can be found here: https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6019.htm

Browne v MySharedServices

Not Considering Jobkeeper Meant Redundancy Was Not Genuine

By | Unfair Dismissal

A recent decision of the Fair Work Commission (the Comimssion) has noted an employer’s lack of consideration for accessing the Jobkeeper scheme a contributor to the unfair dismissal of their employee.

Although the Jobkeeper scheme is still relatively new, there have now been a number of cases in the Commission regarding whether an employer is obliged to take Jobkeeper into consideration, including applying for it, prior to terminating an employees employment. As it stands, there is no positive obligation on employers to do so prior to termination of an employees employment.

In the recent case of Browne v MySharedServices an employer terminated an employee’s employment by reason of redundancy directly related to the COVID-19 pandemic.

The Commission considered whether the redundancy was a genuine redundancy in accordance with the relevant criteria pursuant to the Fair Work Act. The Commission found that:

  • the employer no longer required the employee’s role to be performed by anyone because of changes in the operational requirements of the business;
  • the employer failed to meet its consultation obligations under the relevant Modern Award to consult with the employee;
  • therefore, the termination was not a case of genuine redundancy as the consultation requirement was not met by the employer

Next, the Commission considered whether the employee had been unfairly dismissed. The Commission found that the employee was unfairly dismissed, and cited that one of the reasons for this decision was that the Jobkeeper scheme had been announced the week prior to the employee’s termination, and, that the employer’s lack of understanding as to the operation of Jobkeeper was not sufficient for them not to take it into consideration, as its purpose was to minimise job loss and redundancies.

Further, the Commission said that the employee may have offered to take leave, if consultation requirements had been met, until it was known how Jobkeeper would operate and if the employer would be eligible for it.

Take aways:

  • although this decision does not change the fact that there is no positive obligation on employers to take Jobkeeper into consideration, or apply for it, in an effort to minimise job loss and reduce redundancies, it does highlight, once again, the importance of consultation;
  • if proper consultation is not carried out with an employee, then this may mean that their dismissal is not a case of genuine redundancy and was harsh, unjust and/or unreasonable and therefore unfair

Need help with unfair dismissal? Contact Anderson Gray Lawyers.

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.

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.

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.

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!

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 | Unfair Dismissal, Workplace Rights and Entitlements

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”

Facing Change in your Workplace

By | Unfair Dismissal

Proactively Dealing with Change

You must welcome change as the rule, but not as your ruler” (Denis Waitley)

Change is constant and at many times during our working lives, we will need to change the way we do, think and act.  There’s nothing wrong with that – and we should accept it and move on.

What happens though if the change is significant?  That is, what if the change involves not only a change of duties, but perhaps a change of role, remuneration or hours of work?

In every Award across Australia, there are provisions relating to how ‘significant’ change ought to be managed.  Our Awards say that the cornerstone of introducing change in the workplace is consultation.

And this makes sense.  Sitting down with someone, explaining what the issues are and why the change is important would, in most cases, go a long way to removing the anxiety associated with change.

But is that enough?  Asking for input from employees makes sense also.  An employee is at the ‘coal face’.  Employees know what needs to be done, how to do it and might have a solution that is better than the one being introduced by the employer.

The law is no exception and a recent article I read highlighted the potential effects of change.  The article stated that recently in the US, a law firm introduced a robot to undertake certain work and that robot replaced 50 employees in one part of its business.

Whatever happens, the law imposes an obligation on an employer to ‘consult’ with employees if they want to introduce changes related to matters such as:

  • the composition, operation or size of the employer’s workforce or in the skills required;
  • the elimination or diminution of job opportunities, promotion opportunities or job tenure;
  • the alteration of hours of work;
  • the need for retraining or transfer of employees to other work or locations;
  • and the restructuring of jobs.

Managing change is going to become an even more important skill that both employers and employees will increasingly need to understand and manage.

If you are facing an issue at work, get in touch with our Melbourne unfair dismissal lawyers.

unfair dismissal reasons

The Right Pay Dilemma

By | Unfair Dismissal, Unpaid Wages, Workplace Rights and Entitlements

Getting Paid the Right Amount

Being paid the right amount for hard work is an employee’s absolute right.  Incorrect or unpaid wages can seriously impact the working relationship between employee and employer.

The complex and often overlapping maze of awards, enterprise agreements and employment contracts often over complicates a basic and fundamental employee entitlement.  This maze of contractual terms often has the effect of confusing entitlements relating to overtime, penalty rates, time off in lieu and other employee entitlements.

Unfortunately, and perhaps because the system is complex, employers happen to apply the wrong minimum rate of pay for work performed.  Sometimes the employee is at fault, sometimes the adviser also gets it wrong.  Either way, ignorance is no excuse.

A recent case in the Federal Circuit Court has shown that even ‘expert’ advisers can get it wrong.  In this case, Ezy Accounting 123 Pty Ltd was pursued by the Fair Work Ombudsman for providing the employer with the wrong advice.

Whilst this is a potentially ground-breaking case in terms of extending the persons responsible for getting it wrong, it doesn’t change the fact that an employee should be paid the right rate for putting in a hard day’s work.  Unpaid wages are a genuine problem in businesses across Australia.

The good news is that the process for trying to recover your unpaid wages is fairly straightforward.  Often it will involve making a demand and then (if the matter is not resolved) seeking help from either the Fair Work Ombudsman or the relevant Court or Commission.

At Anderson Gray, we’d love help out anyone who’s been paid the wrong amount – because employees deserve the right pay for hard work done. Get in touch with our Melbourne unfair dismissal lawyers.

Helping Employees….it’s what we’re about!

By | Unfair Dismissal, Workplace Rights and Entitlements

Getting Help for Unfair Dismissal

Being told you don’t have a job, regardless of your status in the world, is always a difficult moment.  I know this, because in a legal career expanding some 16 years, I’ve seen the hurt and damage associated with the dismissal of many persons.

The initial reaction is largely the same – bitter disappointment and anger.  Sometimes, the employee is at fault and shouldn’t have done what they did.  Similarly, there are unscrupulous employers who simply do the wrong thing.

The law is designed to protect the individual from the unscrupulous employer.

Helping an employee out in times of trouble is our business.

And here’s where we want to helpout.

Helping an employee out in times of trouble is our business.  Whether that is by way of making a demand on your employer, commencing proceedings or simply pointing you in the right direction – for us, it’s all about helping out.

You should expect from every advisor that they go about their business in a cost-effective, efficient and diligent manner. At Anderson Gray Lawyers, it’s what we strive to do every day.

And, we know our business doesn’t stop with you.  We want to be the law firm that you are happy to refer to your network of friends, if ever any of them find themselves in trouble at work. You can contact our Sydney branch, or search for us in a city near you.