Employee Rights

Daily Archives: July 20, 2021

No Consultation Renders Redundancy Unfair Dismissal in Victoria

The COVID-19 pandemic has continued to have a significant detrimental effect on many Australian businesses. Consequently, employers are looking to cut costs wherever possible and thus, there has been an increasing number of redundancies this last year. Although most redundancy cases are for a genuine reason, a recent decision before the Fair work Commission in Victoria has found that an employer’s failure to comply with their consultation obligations, rendered an employee’s dismissal unfair. This case has demonstrated the importance of proper procedure for redundancy and unfair dismissal claims in Victoria.

What is a case of Genuine Redundancy?

A dismissal is a case of genuine redundancy, where the employer has satisfied the three elements under s.389 of the Fair Work Act 2009 (Cth).

The first requirement under this section is determining whether the job is still available. If your job no longer exists or is no longer required by the employer, your redundancy is likely to be genuine. If your job is still available but there has been a restructure or downsizing, the Fair work Commission will look to the remaining two factors in determining whether the redundancy is genuine.

The second requirement under this section is the employer’s obligation to consult with employees about the redundancy. The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements (which they often do) to consult about redundancy.

The third element that the employer must satisfy is whether it would have been reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise, or the enterprise of an associated entity of the employer. If the employer does not consult with an employee, then it is arguably that the reasonable steps have not been taken to redeploy the employee as no discussion took place and so no alternatives were assessed.

If the employer fails to satisfy all three of these requirements, the Fair Work Commission must then determine whether the dismissal was unfair.

COVID-19 Restrictions in Victoria No Excuse for Not Consulting

In Sposito v Maori Chief Hotel,[1] a Victorian employee was made redundant but argued it was in fact an unfair dismissal because she was misled into believing that the employer was permanently ceasing its operations. Instead, the employee alleged the employer had since hired two casual staff members to perform her duties.

In response to the first element under s.389 of the Fair Work Act 2009 (Cth), Commissioner Cirkovic of the Fair Work Commission held that the employee’s job was no longer required because of changes in the operational requirements of the employer’s enterprise. Whilst two former casual employees have since been re-engaged by the Respondent, it was found that these employees perform other duties and not those the employee completed.

In response to the second element under s.389 of the Fair Work Act 2009 (Cth), Commissioner Cirkovic of the Fair Work Commission held that the employer failed to satisfy their consultation obligations and thus, the dismissal was not a case of genuine redundancy.

In reaching this conclusion, Commissioner Cirkovic acknowledged the employee was award-covered and there was a requirement to notify the employee of major changes in the organisation that are likely to effect her employment. During the hearing, the employer admitted that they did not engage in any such discussions. The employer simply sent her the letter advising her of her redundancy, effective on the expiry of five weeks’ notice. The employer argued it was a “stressful period”, “unusual circumstances” and his belief that any conversation with the employee regarding her termination would be “emotionally charged”. Further, the employer argued that due to the restrictions associated with the lockdown, the employer was reluctant to contact the employee as they could not meet “face to face”.

Commissioner Cirkovic did not accept these submissions and held there was nothing preventing the employer from contacting the employee via telephone or arranging to speak to her via other means.

In response to the third element under s.389 of the Fair Work Act 2009 (Cth), Commissioner Cirkovic held that it would not have been reasonable for the employee to be redeployed, given the directors reasonably believed that at the time of the employee’s dismissal, they would be closed for the foreseeable future.

Commissioner Cirkovic then addressed the criteria under s.387 of the Fair Work Act 2009 (Cth), to determine whether the dismissal was harsh, unjust or unreasonable. It was acknowledged that determining a dismissal was not a case of genuine redundancy does not necessarily lead to a conclusion that the dismissal was unfair. Rather, the Commission proceeds to consider the unfair dismissal application on its merits.

As the reason for the employee’s dismissal was redundancy, there was no valid reason in relation to capacity or conduct. Consequently, opportunity to respond and previous warnings are not relevant. Commissioner Cirkovic did acknowledge the employer is a small business with no internal human resources expertise, which likely affected their approach to dismissing the employee.

Ultimately, Commissioner Cirkovic held that if the employer had complied with their consultation obligations, and engaged in discussions with the employee about their decision and potential measures to reduce its impact on her, the employee could have had further notice of the impending termination of her employment. It was held that the dismissal was not unreasonable or unjust however, the employer’s failure to comply with the consultation provision in the Award renders the dismissal unfair.

This case demonstrates the importance of not cutting corners in the dismissal or redundancy process. Utilizing COVID-19 restrictions in Victoria as an excuse for why procedural fairness wasn’t afforded, is not an acceptable argument. If you have been made redundant by your employer, ensure that all the requirements have been satisfied otherwise, your redundancy may not be genuine and may constitute unfair dismissal.

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[1] [2021] FWC 700.

Aggressive Behaviour Case, Employee Threatens to Stab Supervisor – Wins

Aggressive behaviour, will constitute threats of physical violence or actual physical assault, may be considered serious misconduct and grounds for instant summary dismissal. Despite employers adopting a zero-tolerance to violence and aggression in the workplace, a New South Wales employee was found to be unfairly dismissed after a myriad of violent behaviour, including threatening to stab her supervisor.

Fair Work Regulation 1.07 defines serious misconduct as conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. This conduct may also be conduct that causes a serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.

Examples of serious misconduct include theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions. Given this definition, an employer can reasonably assume that a threat to stab a co-worker, falls under conduct that causes a serious and imminent risk to the health and safety of a person and warrants summary dismissal.

Aggressive Behaviour and Serious Misconduct

In Michelle Rawson v Mudgee Golf Club Ltd,[1] the employer summarily dismissed an employee, Ms Michelle Rawson, for serious misconduct after she threatened to stab her supervisor, behaved disrespectfully towards fellow employees and attempted to delete the employer’s Facebook page. The Fair Work Commission in Sydney determined that there was a valid reason to dismiss the employee for serious misconduct but due to the flawed workplace investigation, the dismissal was held to be unfair.

On 16 January 2020, a supervisor of the employer, Mr Rhys George, raised allegations against Ms Rawson that upon engaging in a conversation with her about food orders earlier that day, she became angry and threatened to stab him. Mr George and Ms Rawson had a strained and tense relationship and so a meeting was arranged between all parties on the following day.

The discussions during this meeting were disputed by both employer and employee but the most significant aspect of contested evidence was whether, after initially denying that she had threatened to stab Mr George, Ms Rawson admitted to making such a threat, but that she downplayed the comments by stating that she had frequently used remarks of this nature. Nevertheless, no formalized disciplinary action was taken or documented by the employer after this meeting.

On 19 January 2020, a staff member had complained that Ms Rawson had treated her in a very disrespectful manner and had humiliated her. The employer made a written record of the detail of events. On the afternoon of 20 January 2020, Ms Rawson received an email that confirmed the earlier verbal advice of her suspension from duty and set out three allegations of misconduct. The allegations of misconduct related to inter alia, the stab threat incident of 16 January and the incident of 19 January.

The suspension from the employment letter also advised that Ms Rawson was required to attend a meeting at 10 am on Friday, 24 January, at which time she would be provided with an opportunity to respond to the allegations of misconduct.

Ms Rawson responded to this email, denying the allegations in their entirety and submitting that she had been unfairly suspended. Ms Rawson obtained a medical certificate and provided this to the employer.

Ms Rawson remained on paid suspension/sick leave when on 5 February 2020, she received a letter via email which requested her attendance at the employer’s premises for a formal disciplinary meeting scheduled. The letter set out six numbered issues that were considered to represent allegations of misconduct that Ms Rawson would be provided with an opportunity to respond to. Relevantly, the six allegations of misconduct included the stab threat incident of 16 January, the incident of 19 January, and additional allegations including that Ms Rawson had attempted to delete the club’s Facebook account on 21 January 2020.

Ms Rawson and her support person attended this meeting and denied all six allegations of misconduct. Nevertheless, Ms Rawson received a show-cause letter on 10 February 2020 which stated three allegations of misconduct including, the threat to stab her supervisor, the Facebook incident of 21 January 2021 and the alleged breach of confidentiality. Ms Rawson was given until 5 pm on 11 February 2020 to respond but she did not receive this email and did not respond in the required timeframe.

Consequently, Ms Rawson received a termination letter at 5:33 pm on 11 February 2020 via email, confirming she had been summarily dismissed with immediate effect and without notice. The termination of employment letter relevantly stated that the applicant had been dismissed for serious and willful misconduct involving “threatening to stab a fellow employee and attempting to shut down the Facebook site of the Golf Club.” Ms Rawson alleged she did not receive this email communication either.

serious misconduct dismissal can be life changing

Valid Reason Found – Still Unfair Due to Flawed Procedure

Commissioner Cambridge of the Fair work Commission in Sydney held that the misconduct of the employee, which involved her unreasonable and aggressive workplace behaviour combined with conduct that intentionally sought to damage the business operation of the employer, was held to be serious misconduct that was plainly inconsistent with the continuation of employment and it established valid reason for the dismissal of the employee.[2]

However, the valid reason for dismissal was evaluated against significant procedural errors in the workplace investigation which were evident in the manner that the employer determined and implemented the dismissal of the employee.[3] The Fair Work Commission, as currently constituted, has frequently stated that communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided.[4]

Thus, the Fair work Commission held that in this case, the employee was not notified of the reason for her dismissal and was not given a proper opportunity to respond because of the email communication, which was arguably not received.[5] In any event, Commissioner Cambridge held that the proposition that the employee should respond to the show cause notice within 24 hours was inappropriate and unnecessarily onerous.[6]

Although the employer did not have management specialists or other expertise, human resource specialists or other experts should not be required to ensure that fundamental fairness is observed and the employer should have adopted an approach that provided the employee with natural justice.[7]

Ultimately, Commissioner Cambridge of the Fair Work Commission in Sydney held that although the employee was dismissed for a valid reason involving her serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the employee have rendered the summary dismissal to have been harsh and unreasonable. The employee’s dismissal had been found to have been unfair in this instance.[8]

Importance of Procedure in Aggressive Behaviour allegations

The case of Michelle Rawson v Mudgee Golf Club Ltd[9] before the Fair work Commission in Sydney, demonstrates that despite having a valid reason for dismissal, deficiencies in the process and a flawed workplace investigation may still render the dismissal unfair. Even in the absence of a special human resources team, an employer will still be required to have basic common sense in regards to what is fundamentally fair.

This includes putting forward the allegations to the employee, ideally in person or via phone/Zoom, allowing the employee to respond within a reasonable timeframe and a show-cause process that ensures fundamental fairness and natural justice.

If you wish to discuss the allegations aggressive behaviour against you, your unfair dismissal or a flawed investigation, please contact 1800 333 666 and we can assist you in assessing your eligibility to lodge a claim.

We are A Whole New Approach P/l, we are not lawyers, but leading workplace advisors, we are fiercely independent and only advise employees. Advice is free and confidential. We work in all states, NSW, Qld, Vic, Tas, SA, WA, call today!

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[1] [2021] FWC 1171.

[2] Ibid at [87].

[3] Michelle Rawson v Mudgee Golf Club Ltd [2021] FWC 1171 at [87].

[4] Ibid at [74].

[5] Ibid at [75].

[6] Ibid.

[7] Ibid at [83].

[8] Ibid at [89].

[9] [2021] FWC 1171.

Freedom of Opinion in the Workplace – Should I be Dismissed For them?

Do I have a right to my opinion in the workplace, what can i say?, not say?

In a recent decision about opinion before the UK Employment Appeal Tribunal (EAT), gender-critical beliefs were held to be protected philosophical beliefs under UK law. In Forstater v CGD Europe and Others,[1] the Applicant held gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. Thus, she believes that it is impossible for a person to change their sex, irrespective of any change that the person may make (whether by surgery, accident or illness, force of will, declaration, or otherwise). The Applicant considers that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not transphobic.

Social Medial Debates

The Applicant engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and “transphobic”. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. The Applicant complained that she was discriminated against because of her gender-critical belief.

Under UK equal opportunity laws, religion or belief is a protected characteristic and defined as “any religious or philosophical belief” including “a reference to a lack of belief“. Initially, the employment tribunal found that the Applicant’s belief would “refer to a person by the sex she considered appropriate even if it violates their dignity and/ or creates an intimidating, hostile, degrading, humiliating or offensive environment.” The employment tribunal concluded that this approach was “not worthy of respect in a democratic society“.

The Applicant appealed this decision and the EAT overturned this initial decision.[2] The EAT held that the interpretation of the relevant sections of the UK equal opportunity laws, should be informed by Article 9 (the right to freedom of thought, conscience and religion) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights (“ECHR”). Thus, the EAT found that “a person is free in a democratic society to hold any belief they wish, subject only to some modest, objective minimum requirements“. The EAT acknowledged that beliefs akin to totalitarianism or Nazism, or espousing violence and hatred in the gravest of forms will fail the ‘worthy of respect’ test, because they have the effect of destroying the rights of others. Such beliefs are therefore excluded from protection under the ECHR.

While the Applicant’s gender-critical beliefs are offensive to some, and have the potential to result in harassment of trans people in some circumstances, they are still worthy of respect in a democratic society as they did not seek to destroy the rights of trans people.

This notion that philosophical beliefs are protected has been rejected in Australia. Nevertheless, these comments are unlikely to contravene Australian Federal or State anti-discrimination law.

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Philosophical Beliefs Not Protected in Australia

Under Australian laws, gender-critical beliefs are only protected if they fall within the definition of “political opinion/belief”. Political opinion/belief discrimination is not unlawful under federal law however, it could be unlawful in the Australian Capital Territory, Northern Territory, Queensland, Tasmania and Victoria in some circumstances.

In order to establish gender-critical opinions as a political opinion protected under discrimination laws, a person would need to demonstrate that gender-critical opinions are more of a ‘political’ standpoint rather than a ‘personal’ matter and/or this opinion forms part of a religious belief which may extend to a philosophical belief as well. Philosophical beliefs on their own are not protected and thus it is unlikely that these gender-critical comments will fall under a protected attribute under Australian discrimination laws. Further, it is unlikely that these comments will amount to discrimination against those who found them offensive.

Although there is no Federal legislation or section in Australia’s Constitution enshrining a general right to freedom of expression, but it is well established and implied through common law. Further, such comments will only be considered discriminatory if they contravene the Federal or State anti-discrimination laws. The Sex Discrimination Act 1984 (Cth) makes it unlawful to treat people less favorably than another person in a similar situation because of their gender identity. Gender identity discrimination happens when a person is treated less favorably than another person in a similar situation because of that person’s gender-related identity, appearance, mannerisms or other gender-related characteristics of the person. It does not matter what sex a person was assigned at birth or whether the person has undergone any medical intervention.

As per the UK case above, a person would need to consider comments such as “woman means adult human female” or “trans women are male” as statements of neutral fact which are not transphobic. However, such comments highlight the potential clash of rights between sex and gender identity discrimination. Thus, the manner in which employees manifest their gender-critical beliefs is an important consideration but in some cases, the employee may be simply exercising their freedom of opinion or expression.

Religious Freedom or Homophobia?

Under Australian discrimination laws, religious beliefs are a protected attribute. Further, the Fair Work Act 2009 (Cth) provides employees with protections from termination, if they exercise their religious freedom.

In May 2019, Rugby player and former Wallabies star, Israel Folau, posted a screenshot of a meme on his personal instagram, quoting 1 Corinthians 6:9-10 “WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators HELL AWAITS YOU. REPENT! ONLY JESUS SAVES”. Mr Folau was subsequently terminated from his contract with Rugby Australia over the alleged discriminatory social media post. Rugby Australia and NSW Rugby stated that they do not in any way agree with the content of the post and inclusiveness is one of their core values. Rugby Australia and NSW Rugby “welcome all people to the game, including all members of the LGBTI community”.

Following his dismissal, Mr Folau launched legal action against the decision, claiming the social media messages were his religious beliefs and the termination was unlawful. While Rugby Australia stressed that Mr Folau’s dismissal was not because of his religious beliefs, Mr Folau has recently made a claim for unfair dismissal under section 772 of the Fair Work Act 2009 (Cth) alleging that the termination was because of his religion, and therefore, unlawful. Under this section, Mr Folau would have needed to prove that his Instagram post constituted an exercise of religious freedom.

Prior to the Fair work Commission issuing a decision and properly discussing these issues raised, the parties reached an out-of-court confidential settlement. The details of the settlement have not been disclosed due to confidentiality obligations.

Freedom of Political Opinion – Employee Supporting ISIS

The Fair work Commission has explored the implied freedom of opinion and an employee’s right to political opinions, no matter how controversial the opinion may be.

In Fair work Commission unfair dismissal application Nirmal Singh v Aerocare Flight Support Pty Ltd,[3] the Applicant was a casual employee in the role of Airline Service Agent for approximately 14 months. The Applicant had created a Facebook proving using an alia, but his own photograph. On this Facebook account, the Applicant shared and made posts regarding his political opinions and supporting ISIS. 

Upon seeing the Applicant’s post about supporting ISIS, an employee of the Respondent reported the Applicant’s behaviour as he felt “unsafe”. The Applicant was subsequently terminated as he would not be offered any further shifts because he had breached the Respondent’s policies in relation to social media, he had breached his conditions of the employment manual, and his social media comments had jeopardised the Respondent’s relationship with its client and its brand.

Although the Respondent does not deny the Applicant’s right to have political opinions, the publishing of a post saying, ‘We all support ISIS’, and similar posts caused the Respondent’s employees to be alarmed by his political motivations and possible actions within a highly security-conscious environment. In determining whether the Applicant’s conduct amounted to a valid reason for dismissal, Commissioner Hunt gave regard to the fact that the Applicant worked within a secure airport environment. It was held that the bare fact that an employee with responsibility of and access to baggage facilities near aircraft would be a sufficient and valid reason to warrant the dismissal of a declared ISIS supporter. However, the Respondent failed to consider the Applicant’s response and that the comment was made in sarcasm.

Fair work Commissioner Hunt held that reliance only on the ISIS post made the Applicant does not constitute a valid reason for dismissal.

Upon further and adequate inquiry, and proper deliberation of the Applicant’s response (certainly greater than just the 10-minute meeting), it should have been accepted that the Applicant had made a grave error of judgment in making the sarcastic ISIS post. Whilst accepting that the ISIS post did breach the Respondent’s social media policy, and the Applicant had been afforded relevant training in relation to the policy and required standards of employees in a high security-risk environment, Commissioner Hunt held there was no valid reason for the dismissal, in light of the Applicant’s response and explanation. 

Nevertheless, Commissioner Hunt highlighted that her finding should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Commissioner Hunt described the Applicant’s conduct as “stupid” and indicated, “It is not witty. It is not funny. It is a ridiculous post”. Notwithstanding her distaste regarding the ISIS post, Commissioner Hunt held the Applicant’s dismissal was found to be harsh, unjust and unreasonable.

Key Lessons for Employees

These cases illustrate the challenges faced by employers to get the balance right between protecting fundamental rights and freedoms, ensuring compliance with discrimination laws and protecting the reputation of their organisation. Although an employee’s comments may offend or scare fellow employees, the employer must be mindful of every employee’s right to exercise freedom of opinion and their right to political opinions. Aforementioned, gender-critical opinions constitute “any religious or philosophical belief” and are protected under UK equal opportunity laws.[4] These opinions are not discriminatory in nature as they were asserted as mere neutral statements of fact and were not intended to destroy the rights of any person who possess this protected attribute.[5]

Although philosophical beliefs on their own are not protected in Australia, employees are still entitled to their fundamental rights and freedoms to express their opinion, as long as it does not discriminate against protected classes. Despite the potential controversy or offense, these opinions are still worthy of respect in a democratic society.[6]

We are A Whole New Approach, leaders in workplace rights, if you have been sacked, unfairly dismissed, excised a workplace right and feel now mistreated, disadvantaged, give us a call, advice is free, we are always interested in your story, everybody is special to us, everybody is a individual. we care. Call 1800 333 666

Additional reading

www.awdr.com.au, 120 pages of good workplace related material

www.sexual harassmentaustralia.com.au. a lot good / interesting blogs to read

[1] [2019] ET 2200909/2019.

[2] Forstater v CGD Europe and Others [2021] UKEAT/0105/20/JOJ.

[3] [2016] FWC 6186.

[4] Forstater v CGD Europe and Others [2021] UKEAT/0105/20/JOJ.

[5] Ibid.

[6] Ibid.

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