Unfair Dismissal

Daily Archives: June 29, 2021

Avoid the Sack, How To Do It

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Avoid the Sack, How To Do It

Avoid the sack can be a challenge and a stressful time in your life. Are you worried about being dismissed ? You finding it more difficult to remain in a position without being fired? Dealing with the effects of being fired or dismissed isn’t easy. Being dismissed isn’t simply based on your competence to do the job. Often it can be due to their attitude, work ethic and personality. Thus, here are 12 different ways to avoid the sack or getting dismissed:

Avoid The Sack, How to do it, Compulsory Reading

1) The “No call, No show” employee

Although this seems like an obvious tip. It is surprising that many employees do not see the seriousness of failing to turn up to work. If you do not show up to work, you are potentially letting your employer and your team down. If you need the day off work, it is important to give your employer plenty of notice regarding required time off. Every workplace has their own leave request process in which you can request annual leave or time off.

In regards to not attending work because you are sick, try to give your employer as much notice as possible. Even if you wake up sick on the morning you are required to work, notify your employer immediately that you are unwell.  Employers understand that unexpected family emergencies may arise, or you may become unwell suddenly.

However this does not necessarily excuse not informing your employer of these circumstances. There would need to be an exceptional circumstance to explain why you did not show up to work. Why you did not inform your employer of this reason.

2) Be punctual and on time everytime

Another seemingly obvious tip is to be on time and punctual for work. Showing up late on a single isolated day does not mean your boss will sack you. However, if coming to work late becomes a habit that is happening on a regular basis. This behaviour may constitute misconduct or grounds for dismissal. In order to beat this ground for dismissal, ensure you contact your employer. explain your reason for being late. Inform them of when you anticipate to get there.

If there is a reason outside your control, which is the reason for your tardiness, discuss this with your employer. For instance, if you need to drop your kids off at school before starting work and so some mornings you may be a few minutes late. Inform your employer of this. You can attempt to rectify your actions by offering to stay back and make up the time.

3) Do not refuse to complete tasks unreasonably, be flexible!

More often than not, employers may sometimes need you to complete a task for them that is not ordinarily part of your job. Of course, if an employee is asked to do something illegal. Something that is far outside of your job description and area of expertise. You should speak up and discuss this with your boss. You cannot refuse to complete a task that does fall within your job function as you cannot pick and chose what tasks you do.

However, when asked to do something out of the ordinary, remember to be flexible and accommodating. Employees cannot rely on their job description in their employment contract when deciding whether they should complete a task an employer has asked them to complete.

Complying with your boss’s requests shows your dedication and loyalty to the job. Employer’s highly regard employees who are flexible and who will happily complete what is asked of them. Even if it is slightly outside their job description.

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Be a team player, its positive energy

4) Avoid the sack, Be a team player

Similar to refusing to do a specific task, you cannot refuse to work with a particular person without a proper reason. If an employee can demonstrate that they cannot work with a certain person because of bullying behaviour that is causing a danger to their health and safety, the employer will need to take this into consideration.

However, if you and a particular person do not get along or see “eye-to-eye”, this may not be a justifiable excuse that your employer needs to consider. You will come across many people that you don’t particularly like throughout your career. You have to learn to tolerate them and be professional. In the end, you were hired for a job and to perform a role so your personal preferences should not get in the way.

5) Do not publish inappropriate content on social media

What happens when a disgruntled employee posts a rant on their Facebook page about their employer? When a manager sees their employee’s Instagram post showing them engaging in personal activities during work time? What about a post that spouts an employee’s personal views about an issue that the employer does not agree with?

The use of social media as a necessary means of communication in business has been so widely recognised that many employers now have social media policies. In order to ensure that employees are aware of what is appropriate use of social media. Social media unavoidably blurs the boundaries between public and private

The blurred line has led to employers being forced to take disciplinary action against employees that have posted something in their “private” capacity on social media. As is likely to have a negative impact on the employer. Unsurprisingly, the Fair Work Commission has had to rule, on several occasions, on the lawfulness of an employer terminating an employee’s employment over a “private” post on social media.

In short, an employee’s employment could only be validly terminated because of out of hours conduct where the conduct is “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”

6) Breached social media policy

In the unfair dismissal case of Ms Creina Murkitt v Staysafe Security. The FWC decided that it was harsh for an alarm and surveillance monitoring provider Staysafe Security to terminate their long-term employee. After she was found to have breached the company’s social media policy. The FWC acknowledged that the employer’s social media policy required employees to refrain from posting material. That could adversely affect the ‘image, reputation, viability or profitability of the Company’. Evidence was adduced by the employer that the employee had received a copy of the policy and was aware of its contents.

Although the Fair Work Commission found the dismissal to be harsh. They concluded that the employee was validly dismissed and a proper process had been followed. Thus, the Fair Work Commissions stance on the rights of employees and businesses in the domain of social media policies, has been further clarified. They maintain that breaching social media policies is grounds for dismissal.

In summary, be careful what you post on your social media platforms. Avoid complaining about your boss, about the company or your job and never publish any information received during the course of your employment. Even if you believe your post is “private”, it is clear that if a Company obtains this post. They may have a valid reason to terminate your employment.

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Avoid the gossip, who needs enemies in the workplace?

6) Do not get involved in gossip or drama

Gossip or drama can be a commonplace in the workplace, but is engaging in this conduct grounds for dismissal? People who engage in gossip need to be very careful they’re not breaching any values or standards of conduct the employer has set. At its worst, gossip can constitute bullying or sexual harassment. If gossipers breach a policy then employers can rightfully discipline them or possibly even terminate their employment. Particularly if it’s repeated behaviour that risks the health and safety of co-workers.

In the unfair dismissal claim Kym Suzanne Reedy v Global Cranes Pty Ltd. an employee was sacked for spreading rumor’s to a colleague about her Managing Director’s supposed womanizing’s and illicit drug use. The colleague happened to be the Managing Director’s fiancé. After failing to attend a meeting organized to discuss her behaviour, the employee was dismissed. Finding in favor of the employer, the FWC indicated that “salacious and unproven rumor’s… and hostility on the part of (the employee) towards her employer. Are consistent with a malicious intent” – and constitute “a valid reason for termination of employment”.

7) Avoid Back Biting

In Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care, a unfair dismissal case. The employee was accused of “back biting” and was dismissed from her employment on the same day. FWC had to decide whether back biting constitutes a sound defensible or well founded reason for terminating the employee.

The employer contended that “back biting” is the making of any negative comment about a person and behind their back. This is strictly against their policy. The employer’s policy stated that any instance of “back biting” committed by an employee would be a breach of the employer’s policy and make the employee liable to instant dismissal.

The employee admitted to making negative comments about staff members but said that as such comments were true they weren’t “back biting”. Comments were that one staff member was lazy and that another was not a competent carer.

8) Careful with Negative comments

The FWC held that the negative comments made by the Applicant do not of themselves constitute a valid reason for dismissal. It was also held that the employer’s policy was an extremely blunt instrument. It makes no distinction between malicious and untrue comments made behind a person’s back with the clear intention of destroying the person’s reputation. And comments made behind a person’s back which are true and which would not result in serious damage to the employees’ reputation.

The crossover of gossip with bullying is also important in a work setting. The FWC held that bullying can manifest itself in many ways and includes spreading misinformation or ill-will against others. It was also held that scurrilous denigration of a worker in the workplace would certainly fall within the boundary of bullying.”

These cases demonstrate that an employee is putting themselves at risk of being dismissed if they engage in gossip in the workplace. Thus, it is best to avoid all workplace gossip.

7) Be honest with your employer and avoid the sack

Studies have shown that workplaces which implement a “culture of honesty”, breed long-term success. The more transparent the work environment, the happier the employees are.  The happier employees are, the more productive they are.  Ultimately, honesty builds trust in the company and confidence in leadership. Voicing the truth enables all of us to identify the issue and work as a team to better it. Further, lying to your employer may have devastating consequences.

The FWC has upheld the dismissal of an employee who lied to her employer about being sick. So she could attend her sister’s wedding. In dismissing the unfair dismissal claim. Commissioner McKenna said the manager’s reasons for the dismissal were reasonable. ‘going fundamentally to – good faith, fidelity and trust’. This case acknowledges that lying or being dishonest may constitute a valid reason for dismissal. This is due to the break down of trust between an employee and their employer.

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There’s that saying, treat other people the way you want to be treated.

8) Avoid flirting with your co-workers

Well-received workplace flirtation that doesn’t veer into sexual-harassment territory, may not put you at risk of dismissal. However, the difficulty arises if one employee choses to flirt or “make their move” on another employee and they get turned down. This indicates the flirtation is not mutual and gives rise to potential breaches of sexual harassment policies, if the flirtation continues. If a co-worker has rejected your advances or flirtation, cease flirting with them immediately.

If you continue to flirt with the employee, despite them making it clear they are not interested. You may be breaching sexual harassment policies or anti-discrimination laws.

Although sexual harassment is not defined as a valid reason for dismissal under the Fair Work Act 2009 (Cth). It has strongly suggested that conduct which amounts to sexual harassment, will be a valid reason for dismissal. However, Prime Minister Scott Morrison and Attorney-General Michaelia Cash announced in April 2021 that the government would accept all of the report’s 55 recommendations. Either “wholly, in part, or in principle” and introduce changes before the next budget to simplify and streamline sexual harassment legislation.

This includes changing the definition of series misconduct to include sexual harassment and making sexual harassment a valid reason for an employee to be dismissed. Thus, it is important to understand when flirtation is no longer flirtation and becomes sexual harassment.

9) Always be respectful

Workplace environments can often be stressful and frustrating for employees. Full-time employees spend a large percentage of their life at their respective workplace. So it is important that the workplace environment is as amicable as possible. Nevertheless, when tensions are high, it is natural for an employee express their frustration and raise their voice. It is important to remember that some workplaces do not tolerate any form of anger or yelling Especially when it is targeted towards another person and they feel threatened, scared or bullied.  However, there is a fine line between raising your voice and expressing angry outbursts or aggressive behaviour.

The Fair work Commission has confirmed that angry and aggressive conduct in the workplace will provide an employer with a valid reason or reasonable grounds. (as per the Small Business Dismissal Code).

In unfair dismissal case of WK v Advantage Communications & Data Pty Ltd T/A Advantage Communication & Data. The employee was dismissed for serious misconduct because of his continued aggressive and rude conduct toward employees in a Telstra call centre. The employee’s conduct towards the Telstra staff prompted a series of complaints from Telstra managers to the employer. Basis for the dismissal was the employee’s unacceptable conduct. His refusal to comply with a reasonable and lawful direction. The risks to the employer’s reputation and interests caused by the employee’s actions. Fair Work Commission upheld the dismissal and determined it was not unfair.

10) Remain calm, no aggressive comments

In the unfair dismissal claim of DP v Roy Hill Operations Pty Ltd. an employee was dismissed following an aggressive outburst toward a registered nurse at the employer’s medical centre. During the particular interaction that resulted in the employee’s dismissal. He attended the employer’s medical centre for treatment by the nurse. Behaved erratically, shouting accusations at the nurse such as “you don’t know what you are f**king doing.” “you’re dangerous and don’t know anything about asthma.” “you’re going to kill someone.” “you’re f**king stupid.” and “you need to go and do some schooling”.

Employee argued that he was later diagnosed with asthma so his frustration was ultimately “justified” that the outburst was out of character for him. The FWC found that the employee’s rude and aggressive behaviour toward the nurse represented a valid reason for the termination of his employment. His actions were fundamentally inconsistent with the employer’s code of conduct.

These decisions demonstrate that whether an employee has a history of aggressive behaviour or an angry outburst is a one off incident. Either can be a valid reason for terminating that employee’s employment. Anger, aggression and intimidating behaviour in the workplace is not tolerated by employers. Mindful the safest option is to always remain as calm as possible and remove yourself from a situation before letting it escalate. This will protect yourself from any potential disciplinary action.

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The hard work is paying off I’ve flown under the radar, fitted in, stayed away from the gossip, been polite, been flexible. Now I’ve received a promotion

11) Do not be intoxicated at work

Its is surprising how many calls get from employees dismissed for drinking / doing drugs at work. Clearly an employee who is intoxicated by drugs or alcohol at work will suffer from impaired judgement and may seriously jeopardize their own and other employees’ safety. This is a particularly concerning issue in workplaces where employees operate heavy machinery or vehicles. Nevertheless, presenting to work high on drugs or drunk, will may constitute a valid reason for dismissal.

In Fair work Commission unfair dismissal case of Jurgen Rust v Farstad Shipping (India Pacific) Pty Ltd. A sea captain with 16 years’ service was dismissed following a random drug and alcohol screening. It indicated his blood alcohol concentration was over the employer’s acceptable limit. Although the Fair Work Commission found the dismissal to be harsh in the context of his exemplary employment record. Inaction by the employer to resolve an incident that caused the employee great anxiety and stress. It was held that breaching the employer’s alcohol policy was a valid reason for dismissal.

12) No drugs at work

In Harris v Meadowbrook Golf Club. The Fair Work Commission had to decide whether the use of marijuana of itself while on an employer’s premises and at work is a valid reason for dismissal. The Fair Work Commission found that given the employees actions were unlawful. Namely possessing an illicit substance (cannabis) and possessing items used for taking drugs (a bong). This unlawful conduct undertaken on the employer’s time, and on the employer’s premises could provide a valid reason for termination.

Given the employee had admitted to engaging in the unlawful conduct, this was held to be a valid reason for dismissal. Whilst there were procedural in the manner in which the termination was effected, given that the employer had a valid reason for termination and further information came to light after the termination that also weighs against a conclusion that the dismissal was unfair, the dismissal was held not harsh, unjust or unreasonable.

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Conclusion to Avoid The Sack , How To Do It

These cases demonstrate the risk involved with presenting to work under the influence of drugs and alcohol, even if it is the following day. Do not put yourself at risk by drinking or taking drugs even when not at work because it may still be detectable in your system. Although the Fair Work Commission may rule in favor of the employee regarding whether the dismissal is ultimately fair. Working whilst high, affected by alcohol or failing a drug or alcohol test, is a valid reason for dismissal. Regardless of whether your employer has a “no tolerance” or “low tolerance” policy, avoid drugs and alcohol in the workplace at all costs.


Anything to go with the workplace we can help you. We are not lawyers. AWNA are specialist in termination of employment matters. Diversity in the workplace issues, constructive dismissals, probation matters, general protection claims and redundancy issues. workers rights, employment rights. AWNA are leaders in community engagement, representations and research make that call. Advice is free, prompt, confidential 1800 333 666. We work in all states, including Victoria, NSW, QLD amongst others.

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Workers Rights In 2022, What does this mean?

Workers-Rights-In-2022-What-does-this-mean?

Workers Rights In 2022, What does this mean?

Rights are changing all the time. Read on, get the latest updates. Know your rights, protect yourself.

Workers rights are changing.

I reviewed our google statists, looking for trends in workers rights and and noticed that A Whole New Approach have over 550,000 enquires have clicked on our web sites in the last few years, this is the net result of people searching just over 35 million key words that we have advertised. An extraordinary amount of search’s. What are these words?, what does it mean in todays workplace? and what are the trends for the future?. And finally how does it effect your work place?

Its certainly a changing world, we are in, workplace are changing rapidly, you cannot fight it, be part of it, thats the challenge, what do workers rights mean today.

The Universal Declaration of Human Rights tells us this. The UDHR protects our dignity—our inherent value and worth. It commits us to ensuring “just and favorable conditions of work.” Honoring workplace dignity advances that commitment. And with people spending at least one-third of life at work, work then becomes a major source of dignity in our lives—or a place where it is at real risk of violation.

Jeffrey Siminoff is Senior Vice President at RFK Human Rights.

Work give us purpose

Work is very important to most of us, the enjoyment that this can bring, the benefits are numerous, it give us purpose to our lives more than we realize. Like anything in life you have to work at it, to get the best possible outcome. If its not working for you, give us a call, discuss how you can enjoy your work, work with dignity, we have some pages worth a read to avoid the toxic work culture that you may be subjected to.

The question of employees rights are particularly relevant at the moment over mandatory vaccinations, health orders, the increasing size of state police forces, used to implicate / enforce government programs.

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Don’t be silent about your rights

Others issues that have more prominent are wages theft, unpaid hours in the professional services field, (before you would just do this to get ahead) interns working for free, worker exploitation in the supply chains around the world. More people are demanding to know where their goods are made and the conditions of the workers that made them. Gender quotas are back on the agenda, is this fair?, we all want a more diversified work force. Females, older people, people of colour need opportunities, how to implement this is still controversial.

The Rights of workers

The rights of workers as to the green credentials of the companies they are working for, is now being discussed. Do workers have rights to insist on recycling as a workplace right?. The future is both challenging and bright, how you position yourself as a individual for the future is the challenge. Australians work one the longest work weeks in the world, this needs to change it effects our family life and effects us both mentally and physically. How do we do this and still remain competitive in the world economy?

Or are workers rights stuck in the past and only concern themselves about award wages, the national wage case, unfair dismissal type issues is the question. Has the paradigm shifted from just worrying about wages, to more holistic workers rights and conditions of more what effects the planet and worrying about what’s left behind for their children, the next generation? What’s the answer?. Its a very individualistic thing, will it end up like most elections where at the end of the day self interest prevails.

Workers Rights laws

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You do not have to put up with stress, you have workers rights, don’t be forced to resign, dismissed unfairly
  • Not be harassed or discriminated against (treated less favorably) because of race, color, religion, sex (including pregnancy, sexual orientation, or gender identification ), national origin, disability, age political beliefs.
  • Receive equal pay for equal work.
  • Receive reasonable accommodations (changes to the way things are normally done at work) that are needed because of their disability or religious beliefs, if required by law.
  • Expect that any medical information or criminal history that they share with their employer will be kept confidential.
  • Report discrimination, participate in a discrimination investigation or lawsuit, or oppose discrimination (for example, threaten to file a discrimination complaint), without being retaliated against (punished) for doing so.

Not covered by legislation that I believe requires urgent attention is domestic violence, social origin (where you live, some companies will not employ you if your from a poor area etc). Being a Vegan (it is a belief) is become a area of increased focus

Conclusion

Want to contribute to the discussion?, the debate?, your welcome, maybe send us a email. (mediate@awna.com.au). We are A Whole New Approach P/L, voted by our clients as leaders in workplace advice and representation at the Fair work Australia and Fair work Commission for unfair dismissals, general protections, forced resignations, amongst others. Diversity in workplace, equal rights, sex discrimination issues, we would like to hear from you. Looking for a lawyer, try us first. We are leaders in workplace community engagement, research and advocacy. All states, NSW, Qld, Vic, Tas, SA, WA.

Have a questions, have a concern, give us a call, its free 1800 333 666, its confidential

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