BlandsLaw - Blog posts from dismissal
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Are you misclassifying your workers as Independent Contractors?

Failing to properly classify the employment relationship is a recurring issue. In a recent case[1], the Fair Work Commission (“FWC”) has shed some light on the distinction between employees and independent contractors and what is required to ensure procedural fairness when terminating labour hire agreements.

In this case, Audi Enterprises was a franchisee of Courier company Couriers Please. Two courier drivers who performed work for Audi Enterprises were let go after the host courier company found significant stock discrepancies in the deliveries that were designated to the drivers. The host courier company alleged that the two couriers stole a parcel containing $17,000 worth of cigarettes after viewing CCTV footage which showed the couriers taking the package.

The drivers were prohibited from attending the Couriers Please premises until an investigation into the alleged theft was completed by the Police. The exclusion clause in the Audi Enterprises and Couriers Please franchisee agreement specifically stated that “Drivers must be approved by Couriers Please... who may, in its absolute discretion, require

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Resignations in the ‘heat of the moment’

In a recent case[1], the FWC has shed some light on the law surrounding what can sometimes be the grey area of ‘constructive dismissal’. In the initial FWC decision, it was found that a Bupa aged care worker was constructively dismissed when she submitted her letter of resignation. Bupa appealed the decision and the Full Bench considered whether to treat her resignation as effective or whether it should be truly characterised as termination at the initiative of the employer.

In the lead up to the termination, the employee had been removed from a training session by her general manager and was later taken to a disciplinary meeting where she was informed that there would be an investigation into allegations of misconduct. The employee was required to wait 2 hours outside the meeting room, which she spent worrying about what the allegations were concerning. She assumed they were in relation to a six-pack of beer a resident had given her. Before entering the meeting, she drafted a resignation letter

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Improper social media use out of hours

Employers are well within their rights to discipline employees who misbehave over social media, even when the conduct occurs ‘out of hours’ during what is ordinarily private time. However, for employer intervention to be justified, it is necessary to establish a nexus between the alleged misconduct and the employment relationship.

In a recent case before the FWC[1], an employee was dismissed after he shared what was described as a “disrespectful and disturbing” pornographic video via social media with friends, including 19 male and female work colleagues. The employee had been heavily drinking that evening and claimed that he only wanted to send the video to “some of his mates” but hit “send all by mistake”. A female employee who received the video responded “Are you serious? Mate don't send me that shit". The worker posted an apology on his Facebook page the following day.

In alleging that he was unfairly dismissed, the employee argued that Hutchison Port Holdings had no valid reason to dismiss him because there was

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Dealing with employees who lie on their CV’s

In today’s competitive labor market, many job seekers are resorting to fabricating their skills or falsifying their work history on their CV in an effort to land their dream job. However, this leaves employers exposed to great risk. In a recent case before the FWC[1], it was agreed that Spectrum Community Focus had a valid reason to dismiss their finance manager. However, it was decided that the dismissal was unfair because the termination was incorrectly categorized as serious misconduct rather than poor performance.

The employee, who falsely claimed that her qualifications included ‘ASA – CPA Australia’, was responsible for preparing financial reports for all 12 entities related to Spectrum Community Outcomes (SCO).

However, she was summarily dismissed following a series of allegations that concerned her poor performance at work. It was found that she failed to file the company’s return to the Australian Charities and Not-for-profits Commission (ACNC) within the required time frame. Despite her Managing Director’s ability to negotiate a delayed lodgment date, the employee still managed

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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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When swearing amounts to verbal abuse

Employees should choose their words carefully; whilst ‘colourful’ language may be tolerated at times, profane and insulting language towards another employee usually isn’t.

In two recent cases, the FWC has shed light on when an employer may be justified in sacking an employee for verbally abusing co-workers. However, employers are cautioned to consider all the factors surrounding the employee’s conduct when deciding whether instant dismissal is warranted.

In the first case[1], the dismissal of a sales consultant at a car dealership was upheld after he verbally abused the dealership’s stock controller over the phone. The employee and his wife (also an employee) were on a rostered day off when his wife received a call from the stock controller informing her about an inquiry from a contractor.

Despite the fact that the inquiry was quickly resolved, the employee called back shortly afterwards and began to abuse the stock controller using words such as “don’t f***ing call us ever” and “we are busy”. She tried to explain to the employee

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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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