BlandsLaw - Blog posts from unfair dismissal
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Can an offensive comment towards a colleague warrant dismissal?

 

A recent case before the Fair Work Commission[1]considered the dismissal of a casual employee who had made racist comments about his manager. The employee was a regular and systematic casual worker and as such was able to make a claim for unfair dismissal. There were two issues at play:

  1. Were the comments enough to warrant dismissal?
  2. Can an employer deal with disagreement between casual employees by removing one of the workers from the roster?

The employee who was ultimately dismissed had previously raised concerns that his manager had engaged in “cultural exclusion”. The manager was of Estonian background and the employee claimed that she had a habit of hiring employees from the same cultural group, and that she mainly conversed with these staff in their own language.

The incident (which lead to the dismissal) occurred when the manager left work with members of staff who were also Estonian. The manager farewelled the rest of the Estonian staff in their language but ignored the employee when he said

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Unfair Dismissal: When will reinstatement be inappropriate?

When an employee has been unfairly dismissed, an employer may claim that reinstatement is not appropriate due to a loss of trust and confidence in the employee, rendering the employment relationship no longer viable or productive. However, previous case law has indicated that a degree of friction or tension in the workplace is not enough to avoid an order for reinstatement. An employer’s assessment that they have lost trust and confidence in the employee must be credible, genuine and rationally based.

Two recent cases have addressed this issue. In the Supreme Court of Western Australia[1], the court had to consider whether an order for reinstatement would be appropriate after an employee deliberately and dishonestly made false allegations against her supervisor. In addition, the employee alleged that other members of staff lied and conspired against her. After an investigation into an incident between the employee and her supervisor, it was found that the employee knowingly gave false accounts about what occurred and her employment was terminated as a consequence.

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A very flawed approach to the Dismissal Process

It’s a recurring issue that many employers seem to struggle with: getting the dismissal process right. It appears simple enough- if an employer has a valid reason for a dismissal and the process is handled with procedural fairness, then there should be no reason for an unfair dismissal claim. But why do so many employers get it wrong?

In a recent FWC[1] case it was held that an employee was unfairly dismissed despite his behavioural, performance and conduct issues which included the downloading and storing of pornographic material on his company phone and laptop. Unfortunately, the disciplinary process and the employee’s dismissal were riddled with errors which resulted in a termination that was found to be harsh, unjust and unreasonable.

Smarter Insurance Brokers, a small business, had mistakenly relied upon a clause in the employee’s contract that it believed meant payment in lieu of notice would relieve it of the obligation to provide a substantive reason for dismissal. Consequently the employer dismissed the employee and paid out the notice period

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Valid Reason + Procedural Fairness = Termination done right

Far too often we hear of cases where an employer has every reason for letting someone go but they didn’t get the process quite right and now they are defending unfair dismissal claims. Even if there is a valid reason for the dismissal, it will all be for nothing if the process is handled poorly.

In a recent FWC[1] decision, a longstanding BMW employee received $25,000 after it was found he was denied procedural fairness when sacked for serious misconduct. The employee was dismissed for breaching the company’s internet usage policy when he was caught accessing pornographic and lifestyle websites whilst at work, not once but twice. The financial controller was issued with his first and final warning when his colleague exposed that he was viewing pornographic websites. Following further investigation, the IT department found that he had once again breached the internet usage policy after ‘fashion and lifestyle’ swimsuit websites had popped up in his web history.

Two weeks later, the employee was called into a surprise meeting

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When can a Casual worker be protected from Unfair Dismissal?

What is Casual Employment?

The distinction between full time, part time and casual employees is not always as straight forward as it might appear.

Generally speaking, casual employees work irregular hours with no guarantee of ongoing work, are hired on an informal basis and are not entitled to paid leave, termination notice or redundancy benefits. However casual workers enjoy a higher hourly pay rate to compensate for their uncertain working arrangement, have the freedom to accept or decline work as it comes and can end their employment without notice. For employers, there are distinct advantages for hiring casual workers including the flexibility to increase staff during busy periods and the right to terminate without notice.

Protection from Unfair Dismissal

There is a common misunderstanding that casual workers cannot file for unfair dismissal; however this is not always the case. 

Employers are advised to monitor the employment relationship closely and be aware of whether these workers are being treated like permanent employees. Simply labelling and paying a worker under a ‘casual’

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Contrary to popular belief, an employee who engages in obviously drunken and inappropriate behaviour may still be able to successfully challenge their dismissal if it is not handled appropriately.

A recent unfair dismissal case is a salient reminder to employers to ensure that they manage employees consistently and be vigilant where particular risk factors are present (eg alcohol at work functions).

Facts of the case

In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 a work Christmas party went awry when a drunken employee began repeatedly swearing, making inappropriate comments to other employees and then sexually harassing several female employees at a function immediately following the Christmas party.

Multiple comments were made by other employees after the Christmas party and the employer commenced an investigation. The employer met with the employee initially informally and then formally to put the allegations to him. The employee was later dismissed on the grounds that two allegations of sexual harassment had been made out.

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Managing your organisation's performance effectively entails managing your employees' performance effectively.

An annual performance appraisal is an integral part of this process but should not be the only time that there is feedback between the employer and the employee.

Regular performance reviews enable you to:

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We often write about unfair dismissal cases to highlight the potential pitfalls to employers: sometimes the ‘rules’ are quite complex and present some grey areas. By way of contrast, the messages in the following case are strikingly simple – you need a ‘real’ reason to dismiss an employee; and text messaging is not an appropriate substitute for a face-to-face meeting.

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BlandsLaw webinar - Wednesday 30 October 2013 at 1pm

We're not talking about your expanding waistline (you look great). We are talking about the five essential things that you need to know about employment law - your obligations as an employer, and protection for your business - as your business grows.

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Employees can get themselves into all sorts of trouble through the misuse of social media in the workplace. But is social media really to blame? Not in all cases - as this cautionary tale illustrates.

The Fair Work Commission recently rejected an unfair dismissal claim from an employee who used LinkedIn to solicit work for his own private business. The employee showed that he had disclosed to his employer, an architectural design practice, that he did small design projects for private clients outside his normal working hours. The employer had accepted this.

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Social media in the workplace: practical tips for best practice policies

Internet Law Bulletin (Lexis Nexis) – June 2013

Andrew Bland and Sarah Waterhouse look at the rise in employment law decisions involving social media, particularly in unfair dismissal cases, and examples of emerging case law including the recent appeal in Linfox Australia Pty Ltd v Glen Stutsel. This paper – aimed at legal advisors in the areas of workplace and internet law – proposes that a comprehensive and effectively-implemented policy for employee use of social media is an essential legal risk management tool. It also provides practical hints on what to include in a social media policy for employees.

Click to download article > Internet_Law_Bulletin_June_2013 SM articles

 

The recent Fair Work Commission decision in Mr Georg Thomas v InfoTrak Pty Ltd T/A InfoTrak [2013] FWC 1134 highlights the importance for  employers of considering both the substance and the process surrounding redundancy.

In this case, Mr Thomas, an Operations Manager of an IT company, brought an unfair dismissal case alleging that his redundancy was not ‘genuine’ because his employer had not discussed it with him or considered him for alternative positions.

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It’s mid February already. If you’re a small to medium business owner you may be finalising your business plan for the year ahead – or perhaps your team has its head down, on the way to achieving its goals for this quarter. Managing your business’ performance effectively entails managing your employees’ performance effectively. An annual performance appraisal is an integral part of this process but should not be the only time that there is feedback between the employer and the employee.

Regular performance reviews enable you to: 

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