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unfair dismissal lawyers brisbane Archives - Anderson Gray

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.

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.