BlandsLaw - Blog posts from disciplining employees
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Bizarre Facebook messenger conversation leads to surprising sacking

It is well established that employers cannot decide to end the employment relationship at the drop of a hat. In most cases there must be a valid, sound, and defensible reason behind the dismissal, which is to be communicated to employees in the appropriate manner and in accordance with proper process.

 

Employers won’t have a solid basis in defending unfair dismissal claims if their dismissal processes are missing these essential components.

In a recent case before the FWC,[1] an employer flew off the handle when he dismissed one of his star employees in a late-night Facebook messaging conversation which the FWC described as a chat which “spiralled out of control”.

The conversation began when the employer, who previously shared a good working relationship with the employee, messaged the hairdresser over Facebook to confirm whether he had an early morning appointment.  After the employee failed to respond, the employer erupted into a bizarre tirade of abuse and started to reprimand her while awaiting a reply. The employee received a

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Unfortunately, instances of harassment and discrimination are common practices within the workplace. Often employees participate in acts of wrongdoing that contravene laws that aim to prohibit all discriminatory conduct. Significant implications for employers can arise if they are found to be vicariously liable for the wrongdoings of their employees. Nevertheless, an employer may be able to protect itself against vicarious liability and avoid paying substantial damages for an employees conduct if it can be established that all reasonable steps to prevent unlawful acts occurring in the workplace were in fact taken.  

The issue of what amounts to ‘reasonable steps’ is one of contention, given the operational and size differences from one business to another. Therefore, it is extremely important for employers to be aware of all they can do to best cover themselves from being held liable. A recent case, involving Centerprise Resource Group, highlights this issue for employers. The NT Anti- Discrimination tribunal found Centerprise to be vicariously liable for their employee’s offensive race-based language towards another employee

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In our third article in the series looking at recent adverse action cases, we consider a case where the employee alleged her termination was related to a complaint she lodged some years earlier.

In Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099, a childcare centre coordinator was involved in an altercation with an employee who she supervised. The emotionally charged incident, which included raised voices and the coordinator physically pushing the employee, resulted in an external workplace investigation. The investigator found that four of the ten allegations against the coordinator, of bullying and harassment, were substantiated and the decision was taken by the employer to terminate the coordinator’s employment.

The coordinator subsequently brought a claim under the General Protections provisions alleging that she was suspended and later dismissed because of a complaint, about a completely separate matter, that she had made approximately two years ago. The Applicant felt her original complaint had never been adequately responded to or resolved although nothing further had come of it.

The

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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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The recent federal court decision in CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 held that a warning letter issued for an employee’s unauthorised absence did not amount to adverse action. This case is important as it demonstrates that clearly communicated workplace policies, and consequences for breach, may mean the difference between allowable disciplinary action and unlawful adverse action.

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Performance Reviews- A Guide for Employers

 

The procedural fairness requirements of the Fair Work Act, 2009, together with recent decisions of Fair Work Australia (FWA), impose on employers an obligation to act carefully and consistently when managing and disciplining employees. This article addresses some practical strategies for effective performance management in the workplace.

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The procedural fairness requirements of the Fair Work Act, 2009 (Act) together with the recent line of decisions of Fair Work Australia (FWA), impose on employers an obligation to act carefully and consistently when disciplining and managing employees. This article addresses some practical strategies for effective performance management in the workplace.

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