BlandsLaw - Blog posts from unfair dismissal
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Derogatory Facebook post not automatic ground for dismissal

 

Summary

The Fair Work Commission has found that, while an employer had a valid reason to dismiss an employee who posted derogatory comments on Facebook about her employer, the dismissal was harsh and disproportionate when the surrounding circumstances were taken into account.

 

 

For employers

  • Inappropriate use of social media does not automatically justify termination of employment.
  • Ensure you have a social media policy in place that sets out expectations for employee conduct online and consequences for breach
  • As in all dismissals, ensure there is a valid reason for dismissal and that you follow a fair and reasonable process

In a recent case heard by the Fair Work Commission, an employer was found to have unfairly dismissed a long-term employee who criticised the company and its practices in a Facebook post.[1]

The employee, Ms Murkitt, had been working for Alarmnet for almost 15 years. At the end of November 2018 a close work colleague of Ms Murkitt was killed on his way home from work.  Ms Murkitt’s

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Small Business Deserves Better Protection from Unfair Dismissal Claims

Summary

The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) has released a report[1] calling for sweeping changes to the Small Business Fair Dismissal Code (Code), following a review of the Code and its accompanying Checklist.

 

 

In Depth

The Code applies to small businesses employing fewer than 15 employees. If the employer follows the Code when dismissing an employee, the dismissal may be deemed to be fair.

The ASBFEO’s review is comprehensive and takes into account the policy objectives of various stakeholders along with the Explanatory Statement to the Code.

The overarching finding of the report was that the Code and Checklist are not working as intended and should be amended to better meet their intended functions and policy objectives.

In addition to improved education and awareness, and changes to some of the Fair Work Commission processes to deal with claims made against small business employers, the ASBFEO recommended the following changes to the Code and Checklist:

  1. Establish separate processes that would ensure
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Redundancy and redeployment; minimising unfair dismissal

 

 

 

 

 

In Short: 

  • Redundancy provisions bestow a positive obligation on employers to fully explore opportunities within an employer’s wider corporate structure to redeploy.
  • For employers, proactively pursuing and proposing alternate employment opportunities before redundancy termination, will minimise the risk of unfair dismissal or adverse action litigation being brought by employees.

In Depth:

An unfair dismissal claim is not available in circumstances of genuine redundancy. Employers must however be mindful of the requirement to redeploy where it is considered reasonable in all circumstances.

Genuine redundancy arises if:

  • an employer no longer requires an employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and an employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The circumstances of genuine redundancy are qualified by the requirement to redeploy if it would have been reasonable in all the circumstances to redeploy within the employer’s enterprise or the enterprise
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FWC send clear message: termination by text is unacceptable

In two separate cases decided this week, the Fair Work Commission has made it clear that termination of employment via text message is unlikely to amount to a fair dismissal. The method has been variously described by the Commission as “unconscionably undignified”, “hopeless”, “repugnant”, “unnecessarily callous” and “disgraceful and grossly unfair”.

In the first case[1], an employee received a text message stating that his employment was terminated with immediate effect and that he was required to work out his notice period. The text message followed a discussion with the employer in which the employee was told that his rate of pay would be cut from $31.78 per hour to $25 per hour. The employee did not agree to the paycut and received the text message after leaving the workplace.

Deputy President Sams was scathing of the employer both in terms of the reasons provided for the dismissal and in particular the method of dismissal. He described the dismissal by text message as “deliberate and calculated” and “breathtaking in

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How does the FWC determine unfair dismissal cases

In a recent case,[1] the FWC has sent a reminder that it is “not incumbent on an employer to take any particular steps" when carrying out terminations. The appropriateness of the steps taken in each case will depend upon the circumstances of the situation. However, in dealing with unfair dismissal applications, the FWC relies on the Fair Work Act 2009 (“FWA”) to determine whether a dismissal is harsh, unjust or unreasonable.

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Is it OK to sack your employees via phone, text or email

In most circumstances, dismissals take place during pre- arranged face to face meetings between employers and employees.  Employers are required to afford procedural fairness, and this usually involves meeting with the employee to discuss the circumstances around the termination. In saying that, there are circumstances when an employer may validly terminate an employee through less traditional means, such as through a phone call or email.

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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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Calculating Earnings for the unfair dismissal high income threshold

 

Accurately determining an employee’s annual earnings is an important task for employers. As a general rule, employees are not protected from unfair dismissal if their annual income exceeds the high-income threshold (currently $142,000) and they aren’t covered by an award/ enterprise agreement.

 

However, at times calculating annual income is not as straight forward as it appears. In a recent case,[1] the FWC shed some light on what is included in an employee’s annual rate of earnings for the purposes of determining whether they are protected by unfair dismissal laws.

In this case, the employee’s wages were $136,700 at the time of his dismissal and he was not covered by an award or enterprise agreement. While this is clearly lower than the high-income threshold, the employee also received additional ‘Toll’ and ‘Petrol’ benefits.

This was part of an oral agreement where the employer paid for the employee’s petrol for driving to and from his home to the office and other business-related travel. It was also agreed that road

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What are your reasons for dismissal

Prior to termination, employers are urged to consider the reason they are letting their employee go and ensure they have a valid reason for dismissal. It may be because they lack capacity, are underperforming, engaging in unacceptable conduct or for reasons for redundancy. It is well established that the reason must be sound and well founded, and employers must ensure that the dismissal process is handled properly and in accordance with the principles of procedural fairness.

 

In a recent case[1] before the FWC, a beach inspector was summarily dismissed for serious misconduct after he decided to lend a helping hand to fix the air-conditioning units in two council vehicles. The employee’s modifications voided the vehicles’ warranties and resulted in a $4000 repair bill.

The employee contended that he was authorised to carry out the modifications by his supervisor (he was previously a trade-qualified auto-electrician/air-conditioning fitter). The council was happy to take advantage of the employee’s “willingness and self-initiative” and he was often encouraged or expected to perform similar

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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 goodbye.

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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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