Be careful what you claim for when working from home. There are capital gains tax risks

Many employees are now working from home, great, I don’t have to travel to work, and my house is now a tax deduction, how goods that. I thought for a different workplace theme, and get away from vaccinations, unfair dismissals, Fair work Commission matters, we would look at the issue. Now A Whole New Approach are not tax accountants or lawyers, but leading workplace advisors. Get licensed tax accountants advice if you have concerns, or give us a call, I don’t mind.

Working from Home: Claiming Tax Deductions on Occupancy Expenses

In order to claim working from home expenses in the first place, you must be working from home to fulfil your employment duties and not just be carrying out occasional or trivial tasks (i.e. checking emails or taking phone calls), and you must be incurring additional expenses as a result of working from home.[1] However, occupancy expenses are generally not deductible from your assessable income.[2]

The ATO has held that as rent payments are a form of occupancy costs, they are considered expenses of a ‘private or domestic nature”, meaning they are generally not deductible even where part of the rented home is being used as a home office. The Income Tax Assessment Act 1997 (Cth) states that expenses are deductible from assessable income if they are “incurred in gaining or producing your assessable income” or if they are necessary for carrying on a business for that purpose.[3] However, one of the exceptions to this is that expenses of a “private or a domestic nature” cannot be deducted, such as occupancy expenses (i.e. rent, mortgage, interest) and running expenses (i.e. electricity, furniture). Nevertheless, rent deductions may be claimed if that part of the home is being used exclusively for the purposes of income-producing activities and there is no alternative place of business available.

Place of Business

In Taxation Ruling TR 93/30, the Commissioner of Taxation held that deductions on occupancy and running expenses may be made where the home office has the character of a “place of business”, rather than being merely a “private study”.

“where part of the home is used for income producing activities and has the character of a ‘place of business’…some of the expenses incurred in respect of the home such as rent, interest, repairs, house and contents insurance, rates and property taxes, may be partly deductible”.[4]

Therefore, a distinction is drawn between an area of the home that can be identified as a place of business, as compared to a room that is used as a study or a home office for a matter of mere convenience. In cases where the area is classified as a place of business, tax deductions are allowable because the space loses its domestic character and takes on a business or businesslike character.[5]

Whether an area of the home is a place of business will depend on the circumstances, but the following factors point towards such a finding:

• The area is separate and distinct from the rest of your home and it is clearly identifiable as a place of business;
• The area cannot readily be used for private or domestic purposes that coincide with the use of the rest of the home more generally;
• The area is used exclusively or almost exclusively for carrying on a business;
• The area is used regularly for visits of clients or customers.[6]

On the other hand, a private study is an area (i.e. office or study at home) that you only use as a matter of convenience, so that you can complete work from home, which could otherwise have been done at your place of business or employment. Examples of situations where an area was held to be a private study, rather than a place of business, include:

• A barrister’s home office where they read client briefs.
• A teacher’s desk at home where they prepare lesson plans or mark assignments.
• An insurance agent’s home office where they store their client files and occasionally interview they clients.[7]

In these examples, the areas in question retained their private or domestic character and were not held to be a place of business.

However, the requirement that is space must be separate and distinct and cannot readily be used for private and domestic purposes, may disqualify a vast majority of people who are working from home because they are working from the sofa, the lounge room or the dining table.[8]

Alternative Workplace

Another relevant consideration is whether there are any alternative workplaces for conducting income-producing activities. If there is no alternative place of business, it is necessary to work from home, and the area used is only for income producing purposes, then the court or tribunal is more likely to find that the relevant area is a place of business for the purposes of tax deductions.[9]

During the lockdowns and enforcement of restrictions, it can be said that the office remains inaccessible as employees are directed to work from home where possible. As a result, many employers have closed their offices and instructed their employees to continue operations from home. Therefore, there is no alternative place of business available and it is necessary to work from home.

What expenses can I claim?

The Australian Taxation Office (ATO) has published guidelines online regarding ‘Working from home during COVID-19’ which explain the deductions that can be claimed and the processes for doing so.[10] The deductions listed on their site refer largely to running expenses, including:

• Electricity expenses, such as heating, cooling and lighting for the area you are working in and the items you are using to work.
• Cleaning costs incurred for the dedicated working area.
• Phone and internet expenses.
• Computer consumables (i.e. paper, ink) and stationery.
• Home office equipment, such as computers, phones, furniture.

Some restrictions do apply to these deductions, but they can be claimed by almost everyone who is working from home, even if your home office classifies merely as a “private study”.

On the other hand, if your home office can be classified as a “place of business”, then it may be possible to claim deductions in rent, mortgage or interest.[11] If occupancy expenses are deductible, then the actual amount which can be claimed may depend on the apportionment of total expenses occurred, according to floor area and time (i.e. the period of the year in which the room was being used to produce income).[12]

But what about Capital Gains Tax?

Capital Gains Tax (CGT) is the tax paid on profits from selling assets, such as property.[13] If you sell your house and make a profit on this sale, meaning you selling it at a price higher than what you purchased it for, this additional profit will be your capital gain. However, if your property falls within the recognised categories, then a tax will be applied to that capital gain, which you must pay to the ATO.

In general, your main residence (i.e. your home) is exempt from CGT, but it may apply if you use your home for business.[14] This means that if your home office is considered a “place of business” and you subsequently claim tax deductions for occupancy expenses, then at the point in time when you sell your home, the CGT will be applied to this sale because a portion of the home was used for business and income-producing purposes.

An important caveat to note is that if your home office satisfies the conditions of being a “place of business”, even if you do not claim home occupancy expenses in your income tax return the CGT will still apply when you sell your home. The ‘interest deductibility test’ is as follows:

“If you use part of your home for rent or business, you would be allowed a tax deduction for part of any home loan interest. Your home is subject to CGT to the same extent.”[15]

This means that the extent to which you are eligible to claim tax deductions because your home is a “place of business”, is the extent to which the CGT will apply when you sell your home. As previously mentioned, even if you do not actually claim the deduction, the CGT will apply if the interest deductibility test is satisfied.

So what should I do?

Ultimately, the choice is yours. There is a high threshold to be met for your home office to quality as being a “place of business” in order for you to be able to claim tax deductions for occupancy expenses. However, if it is classified as such, then you will also be partially liable for paying the CGT upon the disposal of your property.

The benefit of claiming occupancy expenses is that you will receive a greater portion of your assessable income back from tax returns, but this amount will later be offset by the application of the CGT, which is applied at the same rate as your income tax (for individuals).

Regardless of whether you claim occupancy expenses or not, as an employee working from home, you are able to claim running expenses for the time you are completing income-producing work. Please see the Australian Taxation Office website for further details and instructions.

Having been in business for 40 odd years, my view is get your reductions properly, or leave it completely alone, having the attitude of go “I’ll claim half away”, “I’m not sure what I’m doing, I’ll claim, I little bit, but I don’t want to upset the tax office”, this approach ends in tears. Be careful, particularly at the moment the tax office knows allot of employees working from home will give it a go, try it on. The ATO is not your friend, lets be honest, rich people don’t pay tax in this country, its employees working from home, sort of “low hanging fruit”, that’s easy pickings for the tax office.

If you have other issues around working from home, returning to work, Fair work Commission matters, unfair dismissals, general protections, workplace investigations give us a call, advice is free and confidential. 1800 333 666

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[1] ‘Working from Home’, Australian Taxation Office (Web Page, 1 July 2021) < https://www.ato.gov.au/individuals/income-and-deductions/deductions-you-can-claim/home-office-expenses/>

[2] Ibid.

[3] Income Tax Assessment Act 1997 (Cth) s 8.1.

[4] Taxation Ruling TR 93/30, [2] (‘Taxation 1’).

[5] Swinford v FC of T (1984) 15 ATR 1154.

[6] Taxation 1 [5].

[7] Handley v FC of T (1981) 11 ATR 644; Forsyth v FC of T (1981) 11 ATR 657).

[8] ‘Be careful what you claim for when working from home. There are capital gains tax risks.’ The Conversation (Web Page, 30 June 2020) <https://theconversation.com/be-careful-what-you-claim-for-when-working-from-home-there-are-capital-gains-tax-risks-141364>.

[9] Taxation 1 [12].

[10] ‘Working from Home during COVID-19’, Australian Taxation Office (Web Page, 17 December 2020) < https://www.ato.gov.au/general/covid-19/support-for-individuals-and-employees/employees-working-from-home/>.

[11] Ibid.

[12] Taxation 1 [18].

[13] ‘Capital gains tax’, Australian Taxation Office (Web Page, 4 August 2021) <https://www.ato.gov.au/Individuals/Capital-gains-tax/>.

[14] ‘List of CGT assets and exemptions’, Australian Taxation Office (Web Page, 4 August 2021) https://www.ato.gov.au/Individuals/Capital-gains-tax/List-of-cgt-assets-and-exemptions/#Yourmainresidenceyourhome.

[15] ‘Using your home for rental or business’, Australian Taxation Office (Web Page, 4 August 2021) <https://www.ato.gov.au/Individuals/Capital-gains-tax/Property-and-capital-gains-tax/Your-main-residence-(home)/Using-your-home-for-rental-or-business/>.

I Have A Serious Health Issue (MS), Do I have to tell my employer?

We constantly get calls from employees who have the onset of serious health issues, they worry about being dismissed, loss of income amongst other concerns. I have chosen to discuss Multiple Sclerosis, because in the last year I’ve had several friends or associates who have the onset of MS at a relatively young age. But what happens within MS being discuss here, is transferable to other health events. Your always welcome to call me directly to discuss the matter.

Being diagnosed with multiple sclerosis (MS) or any other serious health illness for that matter, can be a difficult and emotional situation to navigate, and the same can be said for those who you choose to tell. If you have just been diagnosed with MS and are experiencing minimal to no symptoms, then you may not wish to immediately disclose your diagnosis to your employer. (this is an issue with early stages of pregnancy).Ultimately, it is a consideration of what level of privacy you wish to maintain and how this will affect your capacity to work.

I’m afraid of being treated differently, bullied or missing out on opportunities at work…

It is entirely normal and understandable to be concerned about facing discrimination or being treated differently as a result of disclosing your diagnosis. You may not wish to inform your employer of your MS because you do not want to be missed for opportunities or you desire to continue maintaining normalcy in your employment.[1] Deciding not to disclose, or delaying disclosure, may be appropriate for you in these circumstances and it would not be considered lying or cheating. 

If you are undertaking appropriate management plans and abiding by fatigue management strategies, paying close attention to your diet and following a rigorous exercise and rest regime to minimize your symptoms, then you may not find the need to inform your employer of your diagnosis. However, it is crucial that you closely monitor the progress and affect of your symptoms on your ability to work.

There is no requirement for you to disclose your MS to your employer unless the symptoms and side effects you experience, are likely to affect your ability and capacity to perform the inherent requirements of your role, or are likely to present a risk to yourself or others.[2]

This means that as soon as your symptoms begin affecting your work, you should disclose your MS to your employer immediately. However, if your employer does ask you, in writing, to disclose any pre-existing injuries or illnesses that may reasonably affect you capacity to work, and you do not disclose your diagnosis, then you may not receive workers’ compensation if the symptoms and side effects worsen or are recurrent while working.[3]

How do I know when to disclose my MS

The disclosure of your diagnosis and its impact on your employment, will largely depend on the nature and requirements of your role. For example, if you are a truck driver and you are experiencing visual disturbances or your medication is making you feel drowsy, this poses a substantial risk to your capacity to work, as well as to the health and safety of yourself and others.[4] As a result, you must tell your employer of your MS so that they can make appropriate arrangements for yourself and for those around you.

However, if you are a classroom teacher and you can confidently perform the inherent duties of your role despite suffering from some fatigue, or needing to request some time off yard duty on hot days, then you can determine whether you wish to disclose your MS or not because it is not substantially affecting your capacity to work, or posing a danger to yourself and others.[5]

Essentially, knowing when to disclose your diagnosis requires a consideration of the nature and intensity of your work. In circumstances where you are operating heavy machinery, driving or doing anything that poses a significant risk to yourself and others,  it is always advisable that you inform your employer as soon as possible. However, if your capacity to work remains largely unaffected, then the choice is yours with regards to if, when and how you wish to disclose this matter.

But what if I am still afraid?

It can be daunting to disclose your diagnosis of MS to your employer, but you should also consider the significant benefits you may experience if you do so. First, you may be able to increase education and awareness of MS by speaking to your employer and your colleagues about how it affects you. It also provides the opportunity to negotiate suitable working arrangements that allow you to perform your role to the best of your abilities, while also making accomodations where necessary.

Disclosure can also reduce any stress or anxiousness you experience from trying to cover up signs and symptoms of MS, trying to provide explanations for medical appointments and absences from work. It can be largely relieving once you tell your employer and it also provides them with the opportunity to speak with you and understand what your needs are. Although you may be reluctant to do so, you consider giving your employer a chance to address your needs.

If your employer is requesting information about your MS, they must ensure they are doing this respectfully, and in a manner that is not fair or intrusive. This means they need to tell you why they are seeking this information, advise you of any consequences if you do not respond to them, allow you to have access to your own information, and provide you with the contact details of those who will receive copies of your information.[6]

The most important thing to remember is that you remain in control of the information you are willing to give. You can choose how much and to whom you wish to share your diagnosis.[7] If certain symptoms or side effects are not particularly relevant to your work and they do not pose a risk to your safety or that of others, you do not need to feel obliged to disclose this information. However, the more information you do communicate to your employer, the better chance they have of being able to provide meaningful support and assistance.

At the same time, it is necessary to note that your employer may not know much about MS and you may have to educate them on what it is, what its symptoms are and how it affects your work. Nevertheless, it is an opportunity to initiate a discussion and you can work with your employer to ensure that appropriate arrangements can be made to allow you to continue fulfilling the requirements of your role.[8] Under federal and state legislation, your employer cannot discriminate against you or harass you if and when you disclose your MS, and they must also endeavor to make reasonable adjustments to support you in your role.[9]

If you are worried about who this information goes to, you can maintain open communication with your employer and ask them about who else will be told about your diagnosis. You can also request the matter be kept as confidential as possible and that it not be disclosed to your colleagues, if you do not want them to know. This may mean you provide them with a specified list of who you do and do not want them to disclose this information toyou’re your employer can then speak to you about how to proceed. Remember that you are in control and in making these requests to your employer, you are simply exercising your workplace rights, and not doing anything unlawful or questionable.

I have disclosed my MS and now I feel as though I am being discriminated against…

As previously mentioned, it is unlawful for your employer to be discriminating against you or harassing you as a result of your disclosure of MS. Discrimination can be both direct and indirect, meaning it can occur when someone is treated less favourably because of a personal characteristics, or where a policy and/or rule treats everyone in the same way but has an unfair effect on certain groups or individuals. It is unlawful for your employer or for any of your colleagues to be treating you less favourably because you have MS and if they are insulting you or making humiliating jokes, then this also constitutes harassment because of disability.

In response to the discrimination you are facing, you may be eligible to lodge a General Protections Application before the Fair work Commission which highlights the adverse action you have faced as a result of your disability. You may also submit a Statement of Complaint to a Equal Opportunity Commission or Anti-Discrimination Board to seek compensation for this discrimination.

If you are still unsure of whether you need to disclose your MS to your employer, whether you are facing discrimination or what your options are, you can contact our office on 1800 333 666 to receive an obligation-free consultation with one of our workplace representatives who can provide you with advice on your situation. A Whole New Approach are not lawyers, we are the nations leading work place advisors, if your unfairly dismissed or subject to adverse action in the workplace we can also discuss a general protections application

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[1] MS Australia, ‘Employment and MS’ (2011).

[2] ‘Disability Discrimination and Employment’, Victoria Legal Aid, (Web Page) https://www.legalaid.vic.gov.au/find-legal-answers/discrimination-harassment-and-bullying/discrimination-and-victimisation/disability-discrimination-and-employment (‘VLA’).

[3] ‘Disability and the Workplace’, Victorian Equal Opportunity and Human Rights Commission (Web Page) < https://www.humanrights.vic.gov.au/for-individuals/disability-and-the-workplace/>.

[4] ‘To Tell or Not to Tell’, MS Australia (Web Page, 2 August 2017) <https://www.msaustralia.org.au/living-with-ms/expert-blog/tell-or-not-tell>

[5] Ibid

[6] VLA (n 2).

[7] ‘How Much Should I Tell?’, National Multiple Sclerosis Society (Web Page, 2021) < https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment/Disclosure-Decisions/How-Much-Should-I-tell>

[8] ‘Whom Should I Tell?’, National Multiple Sclerosis Society, (Web Page, 2021) <https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment/Disclosure-Decisions/Whom-Should-I-tell”

[9] Equal Opportunity Act 1995 (Vic); Disability Discrimination Act 1992 (Cth).

We Are Not “Unfair Dismissal Australia”!

Recently Fair work Deputy President Gerard Boyce was critical of the conduct of a business know as “Unfair dismissal Australia” regarding the conduct of a unfair dismissal claim where they represented an employee. The case was dismissed and cost awarded against Unfair Dismissal Australia. Dushanthi Jayamaha v Amelie Housing [2021] FWC 4919 (28 September 2021).

It was found they were delinquent in its representation. Has a “all bark, no bite” business model, that they don’t run cases past mediation. I’m not here to be critical, the Fair work Commission has already done that.

I’m here to point out we are not “Unfair Dismissal Australia”, we are not this business.

We are A Whole New Approach, (awna.com.au) who owns the URL (web site) known as “unfairdismissalsaustalia.com.au” (which you are currently on)

we also own “sexual harasmentaustralia.com.au”,

“unlawful termination.com”, “AWDR.com.au”, “antidiscrimination.com.au”

This is all part of a diversified marketing strategy to bring specialist services to the publics attention. We are not lawyers, but workplace advisors across various tribunals, and commissions across Australia.

A Whole New Approach has been a registered company since 2004, and we run cases, our business model has allot of bite, look up “cases we have run“.

If you seek any clarification, of any issues or seek advise , give us a call on 1800 333 666, its free and confidential

Am I Entitled to Flexible Working Arrangements?

What are flexible working arrangements?

For many employees, flexible working arrangements can be very valuable and ensure an their work is balanced with their personal commitments. These arrangements may include:

• Flexible start and finish times
• Compressed hours
• Part-time work
• Casual work
• Job sharing
• Flexible rostering
• Working from home or another location
• ‘Purchasing’ extra paid leave
• Unpaid leave
• Gradual increase or decrease in work hours (e.g. transitioning back to work after parental leave, or transitioning an employee into retirement)

Can I request flexible working arrangements?

Any employee can request flexible working arrangements, though it is not guaranteed whether your employer has to accommodate your request. However, some employees have a legal entitlement to request flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (‘FWA’). There are two requirements that must be met.

Firstly, the employee must either be:

• A permanent employee for at least 12 months; or

• A regular casual employee for at least 12 months, with a reasonable expectation of continuing employment on a regular and systematic basis.

Secondly, the employee must be making the request for flexible working arrangements because they are:

• A parent or guardian for a school-aged child or younger; or

• A carer; or

• A person with a disability; or

• Aged over 55 years old; or

• Experiencing family violence; or

• Providing care or support to a family or household member experiencing family violence.

Furthermore, requests for flexible working arrangements must be in writing and set out the details and reasons for the change sought (s 65(3) FWA).

Can my employer refuse my request?

If an employee makes a request for flexible working arrangements, the employer has 21 days to respond to the request and state whether it has been granted or refused (s 65(4) FWA). Therefore, making a request for flexible working arrangements does not mean you are automatically entitled to receive them. Under s 65(5) FWA, the employer can refuse the request only if they have reasonable business grounds to do so, and must confirm the reasons for refusal in writing. Reasonable business grounds may include, though are not limited to:

• The new working arrangement requested by the employee would be too costly for the employer;

• There is no capacity to change the working arrangements of otheremployees to accommodate the request;

• It would be impractical to change the working arrangements of other employees, or to recruit new employees, to accommodate the request;

• The new working arrangements would likely result in lost efficiency or productivity;

• The new working arrangements would likely have a negative impact on customer service.

CASE EXAMPLE: Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994

A case example of where an employer may reasonably refuse a request for flexible working arrangements occurred in the recent Fair work Commission case of Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994, in which Ms Dee Sinclair made an unfair dismissal application following her dismissal on 25 May 2021 from Sunwise Constructions Pty Ltd.

Ms Sinclair was a full-time receptionist and office administrator for Sunwise Constructions for four and a half years. Sunwise Constructions Pty Ltd is a small business, owned and managed by Mr Wayne Elkin and his wife, Ms Elisa Elkin. The business had eight other employees.

While employed at Sunwise Constructions, Ms Sinclair was responsible for caring for her grandson, Blake, who had special needs. Ms Sinclair’s responsibilities as a carer affected her ability to perform the requirements of her role, as she was unable to work the hours required of her. Ms Sinclair was employed to work full-time, between 8-8.30am to 4-4.30pm, though was unable to work these hours throughout most of her employment. Even though there was no formal agreement, Sunwise Constructions allowed Ms Sinclair to work part-time, under 30 hours per week. Moreover, some of the hours were at Ms Sinclair’s choosing and outside of business hours.

Over several years, Sunwise Constructions was very considerate of Ms Sinclair’s personal situation and accommodated flexible working arrangements where needed, including allowing time off, altered work hours, having children in the office, and allowing her to forward office calls to her mobile.

However, Sunwise Constructions financially struggled in 2020 and required maximum work efficiency to ensure the business stayed afloat. In particular, Sunwise Constructions sought to streamline their processes by having all administrative matters go through the office. As noted by Fair work Commissioner O’Neill at paragraph 13 of the decision, “In this context, Ms Sinclair’s irregular attendance and hours for the business was no long sustainable.” Commissioner O’Neill noted that although the company had been accommodating of Ms Sinclair’s personal situation, Ms Sinclair’s work hours, efficiency and reliability and significantly declined over the past few months, which was having a negative impact on the business. In respect of this situation, Ms Sinclair was given a warning that she must meet the onsite presence requirements of her role, which was particularly important given her role as office staff.

Eventually, Ms Sinclair’s employment was terminated when she indicated she was unable to work the hours required of her. Although Ms Sinclair had requested flexible working arrangements due to her carer’s responsibilities, it was not sustainable for the business for her to work reduced and sporadic hours. Commissioner O’Neill decided that there was a valid reason for the dismissal, summarising as follows at paragraph 31:

“Simply put…Ms Sinclair had long struggled to juggle the demands of the position with her significant personal demands, and an impasse had been reached. The business couldn’t sustain having the position held by someone who couldn’t fill it properly as it was affecting the viability of the business and everyone’s employment.”

Commissioner O’Neil

In situations such as this, a refusal to accommodate flexible working arrangements may be justified.

If my request was unreasonably refused, what can I do?

If you have made a request for flexible working arrangements that you believe was unreasonably refused, you may be able to take action in the Fair work Commission. If you were dismissed from your employment in relation to your request, you may be entitled to commence either an Unfair Dismissal claim (F2 Form) or a General Protections claim (F8 Form). If you are still working at the Company but have been subjected to unfair treatment since making the request, you may be able to commence a General Protections Not Involving Dismissal claim (F8C Form). For the purposes of a General Protections claim, requesting flexible working arrangements will likely constitute an exercise of a workplace right, and may also be considered discrimination if the request was in response to a disability, family or carer’s responsibilities, or age.

A Whole New Approach are not lawyers, we are Australia’s leading workplace advisors, we advise in all states, give us a call the advice is free and confidential 1800 333 666

Pending Court Cases Over Mandatory Vaccination – Can My Employer Dismiss me?

We are getting numerous calls daily as to whether employees have to be vaccinated. Its not for us at A Whole New Approach to decide what’s best for you, other than I’m indicating listen to the science. However even this is being debated. I’m surprised how many new scientist that have evolved since the COVID-19 crisis has started.

What does the Government and The Courts Say

The Australian Government has mandated the vaccination of residential aged care workers and hence, being vaccinated against COVID-19 becomes a condition of work or “inherent requirement” of the role.  Accordingly, state government-mandated vaccination requirements for certain roles or industries, would have the same effect of determining that a COVID-19 vaccination is an inherent requirement of the role. For instance, the New South Wales (NSW) and Queensland (QLD) Governments have announced that COVID-19 vaccinations are mandatory for health care workers and they must have received at least one dose by 30 September 2021, unless an exemption applies.

If an employee refuses to be vaccinated in accordance with the federal and state government-mandated vaccination requirement, the employer will have grounds to dismiss the employee as they cannot perform the inherent requirements of the role. If the employee cannot be vaccinated due to medical or other reasons, which constitutes a disability for the purposes of anti-discrimination laws,  they can also likely be dismissed, provided there are no reasonable adjustments that the employer could make that would enable the employee with the disability, to continue their employment.[1] 

As it currently stands, the Public Health Orders are enacted under delegated legislation provisions, which are contained within each State’s respective Public Health Act.  Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Consequently, a number of employee are challenging the rationality and legality of a vaccine mandate in the NSW Supreme Court, QLD Supreme Court and Queensland Industrial Relations Commissions (QIRC). The common thread amongst these disputes is that employees claim that Parliament would not have intended to give the Health Minister “the powers to breach bodily integrity” without clear legislative indication.

These numerous cases are currently pending in the state courts and many people are eagerly awaiting a determination or outcome of these court actions, due to their opposing view on these mandates.

This then begs the question, can I ask my employer to hold off on executing these mandates, in hope of them being rendered invalid by the pending court actions? The answer to this question in short is no. These court actions, although pending, have not yet rendered the current mandates invalid or illegal. Thus, even if there is a pending action which attempts to challenge the validity of such mandates, it is in essence only pending and we should not hold our breaths.

Your employer reserves the right and is obligated to enforce the mandates as they currently stand, regardless of the potential of them being rendered invalid. When an employer makes the tough decision to terminate an employee for refusing the jab, the employer has to look to what the laws and mandates are at the current time. What is in the mind of the decision maker, is a highly important factor when establishing a valid reason for dismissal and as it currently stands, these mandates are valid.

With this being said, if your employer terminates your employment and in the event these mandates happen to be rendered invalid, you can always reapply for your job or reinstatement through an unfair dismissal claim.

The purpose of the unfair dismissal provisions is to establish a framework for dealing with unfair dismissal that balances the needs of business (including small businesses) and the needs of employees, to establish procedures which are quick, flexible and informal and address the needs of employers and employees and to provide remedies where a dismissal is found to be unfair, with an emphasis on reinstatement. If these mandates are rendered invalid, then the valid reason for the dismissal is rendered invalid and the dismissal may be rendered harsh, unjust or unreasonable.

If this is the case, the employee can lodge an Unfair Dismissal claim (Form F2), with the Fair work Commission, within 21 days after the termination takes effect and the Commission may allow a further period for lodgment in exceptional circumstances. This means if you are outside the 21 days but the reason for the delay is the pending court action which rendered the mandates and thus dismissal invalid, then there may be an exception granted.

Once an application is lodged, the Fair work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving an Unfair Dismissal dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings.

If the only reason for your dismissal is the vaccination, it is arguably that the trust and confidence in the relationship may not be broken and so reinstatement may be a viable option. In the alternative, an employee may be awarded compensation for the unfair dismissal itself.

Nevertheless, nothing is stopping an employee from reapplying for their job if a COVID-19 vaccination is no longer required. It is strongly encouraged however, that people do not hold onto the hope or faith that this requirement will magically disappear or be overruled. Everyone has the choice as to whether they get vaccinated or not but in the same way, your employer has the choice to terminate or refuse to hire, unvaccinated employees.

It is increasingly evident that proof of vaccination is becoming a condition or requirement for employment, even in the absence of mandates.

A Whole New Approach are not lawyers, what we are is the nations leading workplace advisors, we are happy to give you advice on unfair dismissals, general protections and any of your personal circumstances in these difficult times, advice is free. Call today on 1800 333 666

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[1] DDA s.21(A).

Hard Bargaining or Extortion: Using Threats in Negotiations.

At the Fair work Commission negotiating outcomes for your unfair dismissal or general protections claim is a way of life.

You as an employee want as much as your can get and the employer wants to pay you the least amount possible.

Negotiation is an integral part of dispute resolution and reaching settlement agreements. When negotiation, it is important to acknowledge when conduct could cross the line between aggressive and zealous advocacy and extortion. Utilising sensitive information to blackmail, extort or compel your employer to pay you out, will not be highly regarded should the matter be heard before a Court or Tribunal. Further, parties cannot defend their coercive or threatening behaviour by relying on the privilege attached to “without prejudice” negotiations.

Coercing and Threatening an Employee to Withdraw Their Fair Work Claim

In Bethune v Strategic Lawyers Pty Ltd,[1] the employer sent the employee a letter stating that “… should this matter not settle in accordance with this letter that we intend to refer to the CCTV (and three formal complaints) to the Legal Services Commission concerning whether your client’s conduct … .is fitting conduct for a legal services professional …”.

The employee argued that the employer sought to coerce her to abandon her claim under the Fair Work Act 2009 (Cth), by threatening to refer her conduct to the Legal Services Commission. In order to demonstrate an intent to coerce, the employer must have intended to exert pressure to negate choice and negating choice requires something more than influence or persuasion and implies a high degree of compulsion.[2] Secondly, the coercive act must involve conduct that is unlawful, illegitimate and unconscionable.[3]

Further, the employee argued that the threat was unlawful in that section 17 of the Federal Circuit Court Act 2001 confers upon the Court the power to punish a person for contempt where their action interferes with the course of justice. The employee argued that contempt includes actions that have a tendency to improperly pressure a party to withdraw from court proceedings and a contempt will still have occurred notwithstanding that the party elects to continue with their claim.[4] Further, an improper threat intended to induce settlement[5] or threatening to report a legal practitioner to a professional disciplinary body, may also constitute a contempt.[6]

With respect to whether coercive conduct can amount to professional misconduct, it has been held that the making of a similar threat to induce settlement was found to be professional misconduct within the meaning of section 419 of the Legal Profession Act 2007 (Qld).[7]

“Without Prejudice Save as to Costs” – No Automatic Privilege

The employer defended the alleged coercive conduct by claiming privilege with respect to the content of the letter, given that the words “Without Prejudice Save as to Costs” were stated on it. The employer argued they were entitled to make a without prejudice attempt to compromise the dispute and that protection cannot be abrogated by a simple assertion on an interlocutory basis that the offer of compromise somehow contravenes legislation or is conduct giving rise to an offence.

In general, “without prejudice” communications are privileged from disclosure and cannot be shown to the Court or a third party, unless the parties agree to waive the privilege. The purpose of the “without prejudice” rule is to encourage parties to reach settlement and thus to try and avoid court action.

The term “without prejudice save as to costs” rule extends the basic “without prejudice” rule. It maintains the same privilege but, should the matter go to Court, the parties can disclose communications when the Court comes to decide the issue of costs. Nevertheless, these communications remain privileged until after the matter has been settled or decided by the judge.

In Ferster v Ferster & Ors,[8] the Court has highlighted that there can be a fine line between proper and improper leverage in negotiations.  Where the line is overstepped, the “without prejudice” protection of the communication can be lost, leaving the maker of the statement vulnerable to the communication being used as evidence in front of the court.

When determining whether the “without prejudice” communications are privileged, the Court observed that “it may be readily accepted that the mere insertion of the words ‘without prejudice’ does not of itself necessarily clothe correspondence with the character asserted any more than the absence of those words would deny a privilege attaching to correspondence which is truly engaged in for the purpose of effecting a settlement or compromise”.[9]

Further, a “without prejudice” privilege does not apply to cloak improper conduct.[10] A party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.[11]

Thus, privilege does not apply where one party exerts unfair pressure upon the other during negotiations and the Court will admit evidence of such pressure and the privilege ordinarily attaching to ‘settlement’ negotiations in these circumstances cannot be relied on.[12] Where statements are made in the nature of admissions not with a view to seeking compromise but rather in the nature of an ultimatum to the other side privilege will not attach.[13]

Consequently, Judge Tonkin held that the employer exerted unfair or illegitimate pressure upon the applicant within the context of settlement negotiations to accept an offer and the “without privilege” claim by the Respondents cannot be relied on in that regard.[14] It was held that the letter contains communications that were made in furtherance of the commission of an act rendering a person liable to a civil penalty (such as coercion) or a communication affecting a right of the employee.[15] Thus, the “without prejudice” communications did not attract privilege and were held to be discoverable.

I hope the above has been helpful to you, sometimes knowledge can be power, sometimes a little bit of knowledge can be dangerous. At A Whole New Approach Pty Ltd we are not lawyers but extremely skilled and experienced negotiators, want help in resolving your workplace dispute?, give us a call. We can also represent you in lodging a unfair dismissals claim or general protections claim. Your welcome to get free advice on 1800 333 666

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[1] [2021] FedCFamC2G 6.

[2] Ibid at [24].

[3] Ibid.

[4] Harkianakis v Skalkos (1997) 42 NSWLR 22 at [28] and [29].

[5] Y v Z v W [2007] 70 NSWLR 377 per Ipp JA

[6] Harkianakis v Skalkos (1997) 42 NSWLR 22 at [30].

[7] Jensen v Legal Services Commissioner [2017] QCA 189.

[8] [2016] EWCA Civ 717.

[9] Apotex Pty Limited v Les Laboratoires Servier (No 5) [2011] FCA 1282 at [25].

[10] Bethune v Strategic Lawyers Pty Ltd [2021] FedCFamC2G 6 at [49].

[11] Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436 at 2444.

[12] Dataquest (Australia) v Dataquest Inc [1996] FCA 1685.

[13] Dataquest (Australia) v Dataquest Inc [1996] FCA 1685.

[14] Bethune v Strategic Lawyers Pty Ltd [2021] FedCFamC2G 6 at [55].

[15] Ibid [56].

Fair work Commission Allows Late Unfair Dismissal Application Following Family’s Secrecy Over Sacking

Late Lodgment Of Unfair Dismissal Claim

The Fair Work Commission has allowed an unfair dismissal claim, which was filed 28 days out of time, on the exceptional ground that the employee’s adult children withheld information of the termination from him.

In the unfair dismissal claim in the Fair work Commission of Halil Goren v Tradelink Pty Limited,[1] the Applicant’s employment effectively ceased on 28 April 2021 after he did not return to work from an extended period of approved unpaid leave. The employer sent an email and then a letter to the employee on 28 April 2021 ‘confirming’ that he had resigned his employment. This was due to the employee signing his application for unpaid leave which states,

“If you choose not to accept any position offered to you or if you fail to make any contact with the Branch Manager, it will be taken that you have resigned from the business”.

Halil Goren v Tradelink Pty Ltd

The employee was overseas at the time and relied on his adult children to look after his affairs in Australia. The employee’s adult children, with full knowledge of the 21-day time limit, chose not to tell their father (the employee) that his employment had ceased until several weeks later when he returned to Sydney and completed his two-weeks in hotel quarantine. His family withheld information relating to his dismissal due to his heart condition.

This claim was supported by a report from the employee’s family doctor, who advised that he needed to be supervised during any activity and/or situation that would pose a risk to his physical and emotional well-being. The employee was released from quarantine on 10 June 2021 and on 11 June 2021, he was finally told that his employment had ceased.

Section 394(1) of the Fair Work Act 2009 (Cth) required the employee make his application for an unfair dismissal remedy within 21 days after his alleged dismissal took effect, being midnight on 19 May 2021. The employee did not make his application until 16 June 2021. The unfair dismissal application was 28 days out of time.

Out of Time Application – What Are Exceptional Circumstances?

The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances”.[2] The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome.[3] The Full Bench in Nulty v Blue Star Group Pty Ltd,[4] described exceptional circumstances as having it’s ordinary meaning and requires consideration of all the circumstances.[5] “To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.

Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be.

Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”.[6]

When considering whether there are exceptional circumstances, the Fair Work Commission is required to take into account a range of factors, as stated in s.394(3):[7]

• the reason for the delay; and
• whether the person first became aware of the dismissal after it had taken effect; and
• any action taken by the person to dispute the dismissal; and
• prejudice to the employer (including prejudice caused by the delay); and
• the merits of the application; and
• fairness as between the person and other persons in a similar position.

In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[8] the Full Bench found that:

• generally, the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional;[9]
• the obligation to “take into account” the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant;[10]
• no one factor needs to be exceptional in order to enliven the discretion to extend time;[11] and
• individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances.[12]

Employee’s Health Concerns Justified Delay in Notice of Termination

In this case, Deputy President Easton of the Fair Work Commission acknowledged that a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.[13] Deputy President Easton of the Fair Work Commission acknowledged that notice of termination of employment may be given to an agent of an employee who has actual or ostensible authority to receive that notice,[14] and although the employee’s children did not have actual authority to receive the notice from the employer, then they clearly had ostensible authority to do so.[15] Nevertheless, the employee argued that his adult children were responsible for his delay.

Deputy President Easton of the Fair Work Commission analogized the unique facts of this case with a representative error case,[16] noting that if the action of the employee’s children were the actions of a representative, the Commission would probably make an order extending the time for filing.[17]

Deputy President Easton of the Fair Work Commission expressed concern about the employee’s family consciously flouting the 21-day time limit and held that had it not been for the advice of the employees doctor, an extension would likely have not been granted. It can be implied that had it not been for the doctor’s advice, there would have been no demonstrated exceptional circumstance for the employee’s agent (his adult children) to withhold the notice of dismissal and contribute to the delay.

Always lodge your claim with in the 21 days, I cannot stress how strictly this rule is enforced by the Fair work Commission. For reasons I still do not understand some employees wait until the 20th-21st day and it gets confusing, your computer doesn’t work etc. Lodge your unfair dismissal or general protections application at the earliest opportunity.

If your outside this timeline, there are other jurisdictions that may be available to you, this applies around sexual harassment and discrimination claims. Want help?, advice?, we are happy to discuss lodging an application on your behalf.

Call 1800 333 666 today

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[1] [2021] FWC 5386.

[2] Fair Work Act 2009 (Cth) s.394(3).

[3] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [24].

[4] (2011) 203 IR 1; [2011] FWAFB 975.

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[7] Fair Work Act 2009 (Cth) s.394(3).

[8] (2018) 273 IR 156; [2018] FWCFB 901.

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 2018] FWCFB 901 at [17] and [38].

[10] Ibid at [19].

[11] Ibid at [38].

[12] Ibid at [39].

[13] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000).

[14] Ibid at [24].

[15] Halil Goren v Tradelink Pty Limited [2021] FWC 5386 at [44].

[16] Ibid at [49].

[17] Ibid.

Dismissed During Probation Period

What Can I Do? What Are My Options, My Rights?

We get many enquiries regarding what are on the surface unfair dismissal enquiries for employees who have worked, relatively a short period of time, in what’s referred to as the probation period.

Probation periods typically last three to six months and are utilized to determine the suitability of a new employee to the workplace. If you are dismissed within this time, it is unlikely that you will meet the eligibility criteria to lodge an Unfair Dismissal Application with the Fair work Commission, which requires six months of employment in companies with more than 15 employees, or over 12 months in companies with fewer than 15 employees. However, this does not mean that you do not have rights. You are still entitled to pursue your rights through the Fair Work System. Even if ineligible for Unfair Dismissal, you may still be able to pursue a General Protections Application in the Fair work Commission.

It is important to note that if you have been dismissed during your probation period, you are still entitled to receive notice and be paid out your unused accumulated annual leave hours.

What are General Protections Applications?

General Protections Applications have slightly different requirements to Unfair Dismissal Applications, but they have very similar effects.

By pursuing either an Unfair Dismissal Application or a General Protections Application, you can seek either reinstatement of your position or financial compensation. Reinstatement often is not practicable due to a breakdown in the employment relationship, and therefore most applicants seek compensation. Compensation is considered an alternative to reinstatement and is thus limited to compensating you for a reasonable period that you may be out of work due to losing your job, which does not typically exceed six months.

To make a General Protections Application, you must establish that you were subjected to adverse action due to either discrimination, the exercise of a workplace right, or industrial action.

Adverse action is negative conduct towards an employee, which has occurred directly as a result of discrimination, the exercise of a workplace right, or industrial action. Adverse action may include dismissal, altering your employment, treating you less favourably than your colleagues, or injuring you in your employment.

Discrimination is defined as different or less favourable treatment due to a particular unchangeable attribute about you. The Fair Work Act 2009 (Cth) protects 13 specific attributes:

• Race
• Colour
• Sex
• Sexual orientation
• Age
• Physical or mental disability
• Marital status
• Family or carer’s responsibilities
• Pregnancy
• Religion
• Political opinion
• National extraction
• Social origin

This means that if you are treated differently or worse than your colleagues for one of these reasons, you may have been discriminated against. Any instances of negative treatment due to the attribute, including the dismissal itself, can be considered adverse action, in respect of which you may be eligible to make a General Protections Application.

An exercise of a workplace right typically is where you have made complaints or enquiries about your employment. However, it also includes receiving a benefit or having a role or responsibility under a workplace law, or where you have commenced legal proceedings for a workplace matter. Workplace rights can also include rights in relation to JobKeeper and the COVIDSafe app.

If you have stood up for yourself in the workplace, raised concerns about something, or asked questions about your role, and as a result you were subjected to negative treatment, you may be eligible for a General Protections Application. I refer you to our general protections page which as a significant amount of detail, expanding the basis of claims.

Protections for industrial activity include where you engaged in, proposed to engage in, or refused to participate in industrial activity. Industrial action typically involves being a part (or not being a part of) unions.

In summary, if you believe your dismissal during your probation period was due to either a discriminatory reason, an exercise of a workplace right, or in relation to industrial activity, you may be able to lodge a General Protections Application in the Fair Work Commission.

What does the General Protections process look like?

Once you lodge a General Protections Application, which you can do yourself or through a representative such as ourselves, the Fair Work Commission usually responds within a week to notify you that the application has been accepted and likely schedules a conciliation conference to be within three to five weeks’ time.

Conciliation conferences are typically held over the phone and are essentially a negotiation to seek a remedy, that is, the outcome you are seeking, which may be compensation, reinstatement, payment of accrued entitlements, or anything else relevant. Conciliation conferences are a voluntary process for both employees and employers, but employers often do participate, especially if you have engaged a representative.

A conciliator from the Fair Work Commission is also in attendance, with the role of facilitating discussion and negotiation between the parties, potentially suggesting settlement options. The parties must agree on the settlement outcome, and no decision is made by the Fair Work Commission at this stage. However, you can maximize your chances of settling by engaging a representative to speak on your behalf and negotiate your case for you.

Timelines

Whether it is a unfair dismissal claim or a general protections claim there is very strict 21 days to lodge a application. Lodge the application to the Fair work Commission at the first available opportunity within the 21 days. Its not 21 days from when you get your final payout, or your dismissal letter, its from you’ve been informed you have been dismissed.

How can I get started?

For a free consultation and to better understand what your rights are, contact 1800 333 666 to speak to our caring staff. If you are eligible for a Fair Work Commission matter, we may be able to represent you and achieve the justice you deserve. Fixed fees or no win, no fee can apply

Unfair Dismissal v General Protections, What Is The Difference

When an employee is dismissed and looking to lodge a claim against their employer, they will notice that the two applications that they can make to the Fair Work Commission.

These two applications are unfair dismissal (F2 Application) or a general protections application involving dismissal (F8 Application). So, you may be asking yourself, what is the difference between these two claims? Which claim should I lodge?

Although these claims both involve an employee being dismissed, they are not the same application and have very different criteria. Just because you may be eligible to lodge one of these two claims, does not mean you automatically qualify for the claim also. If you are unsure whether you have a claim or which application you can pursue, please give us a call on 1800 333 666 for a free and confidential consultation.

Now For the Detail

Unfair Dismissal and General Protections Claim – Criteria for Lodging

Unfair dismissal claims have jurisdictional criteria that an employee must meet or satisfy, before they are eligible for a remedy under the Fair Work Act 2009 (Cth). Firstly, an employee must have been dismissed. The term dismissed is defined in the Fair Work Act 2009 (Cth) as a situation where a person’s employment has been terminated at the employer’s initiative, or a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

Secondly, the employee must be an employee, on a regular and systematic basis (for casuals), they must not be a contractor and must not have been employed for a specified period, task, seasonal contract or traineeship arrangement, and was dismissed at the end of the period, task, season or arrangement.

Thirdly, the employee must have completed the minimum employment period with the employer, being six months of continuous service for a large business or one year of continuous service if the employer is a “small business”. Under the Fair Work Act 2009 (Cth), a small business is a business that employs fewer than 15 employees, including casual employees that are employed on a regular and systematic basis.

In addition, the employee must earn less than the high-income threshold (which is currently $158,500 gross per year) or be covered under a modern award or enterprise agreement. Lastly, the employee must lodge their claim within 21 days of their dismissal taking effect. This time limit is strictly enforced, and claims lodged outside the 21 days, will only be accepted in exceptional circumstances.

In comparison, general protections claims do not such an extensive list of criteria. In order to be eligible to lodge a General Protections Claim, an employee must have been dismissed, which is the same test as for unfair dismissal claims. Secondly, the employee must lodge their claim within 21 days of their dismissal taking effect, just like in an unfair dismissal claim.

However, the general protections provisions afford greater protection to not only employees but include prospective employees, independent contractors (including prospective independent contractors), a person (the principal) who has entered into a contract for services with an independent contractor (including a principal who proposes to enter into a contract), and an industrial association (including an officer or member of an industrial association). There is also no high-income threshold or requirement for award or enterprise agreement and no minimum period of employment.

Despite less jurisdictional criteria for a General Protections claim, lodging this application is not a constellation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal due to not meeting the requirements, you cannot automatically lodge a General Protections claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth), as discussed below.

Unfair Dismissal Regime and General Protections Provisions – Why are these claims different?

In the Fair Work Act 2009 (Cth), a person has been unfairly dismissed, if the Fair Work Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal was harsh, unjust or unreasonable, was not consistent with the Small Business Fair Dismissal Code (in the case of small business employers) and was not a case of genuine redundancy (if applicable).

When assessing whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission must take into account:

• whether there was a valid reason for the termination which relates to the employees’ capacity or conduct.
• whether the employee was notified of this reason.
• whether the employee was given any opportunity to respond to that reason.
• whether there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the termination.
• whether the employee was warned about unsatisfactory performance prior to the termination if this was the reason for the termination.
• the degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the termination.
• the degree to which the absence of dedicated human resource manager specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the termination; and
• any other matters the Commission considers relevant.

In summary, the unfair dismissal regime looks as to whether an employee deserved the sack, whether they had ever had any warnings and the procedure in which they were dismissed.

Employees who meet the jurisdictional criteria, are protected from unfair dismissal under the Fair Work Act 2009 (Cth). The unfair dismissal regime establishes a framework for dealing with dismissal or termination by balancing the needs of a business (including small business) and the needs of employees. This regime also acts to establish procedures which are quick, flexible and informal and address the needs of employers and employees and to provide remedies where a dismissal is found to be unfair, with an emphasis on reinstatement.

In contrast, the General Protections provisions, as set out in Part 3-1 of the Fair Work Act 2009 (Cth), prohibit employers from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes or sham arrangements. These claims do not consider any principles of fairness regarding the termination itself, as in an unfair dismissal claim. The only consideration for the Fair Work Commission is whether or not an employee has a workplace right or has exercised a workplace right and whether an employer has acted adversely towards the employee because of this.

Under the Fair Work Act 2009 (Cth), a person has a workplace right if they are entitled to the benefit of a workplace law or instrument, has a role or responsibility under a workplace law or instrument, is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. Under the Fair Work Act 2009 (Cth), adverse action includes dismissal of an employee but encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them. In order to be eligible to lodge a general protections application involving dismissal (F8 Application), the final adverse action by the employer must be termination or dismissal of the employee.

An example of a scenario in which an employee will have grounds to lodge a claim could be has been dismissed after they made a complaint about bullying or sexual harassment. Although the employer may not disclose this as the reason for termination, the Fair Work Commission will look at the probability that the employee was dismissed because of their complaint.

The difficulty of these applications and the most frequent reason that an applicant fails in a general protections case, is that he or she is held to have failed to establish this “because of” causative link. The General Protections provisions are very narrow and they require the causative link to be made out, in order for an employee to be successful. Thus, it is almost irrelevant whether the employee was dismissed in a fair way, whether there was a reason for their dismissal or whether they had received any warnings in their employment.

However, the legislation includes a reverse onus in relation to the reasons for taking an action.

This means that although the employee must still establish that they have a prescribed ground and have suffered adverse action within the meaning of the legislation, once the employee alleges their employer took action for a particular reason, it is presumed that the employer’s action was taken for that reason unless the employer proves otherwise.[1] The employee is relieved of the burden of proving the employer’s reason for taking an action. Thus, the employer must demonstrate that they terminated the employee for a reason, which is not prohibited.

Fair Work Commission Procedure and Remedies for Unfair Dismissal

If an employee lodges an Unfair Dismissal Application (Form F2), the Fair Work Commission will set the matter down for a conciliation conference. This conference is an informal method of attempting to resolve either of the two disputes. In this conference, an independent conciliator from the Fair Work Commission will assist the parties in exploring options for resolution and help them to reach an agreement, without the need for a formal hearing or court proceedings.

In these private and without prejudice conferences, an employee can ask for a variety of remedies but most commonly, an employee will seek:

• compensation
• to have their termination rescinded and for the employer to allow them to resign
• for the employer to provide them with a Statement of Service.

Importantly, unfair dismissal claims have a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination, whichever is lesser.

If the parties are unsuccessful in reaching an agreement for an Unfair Dismissal claim, the matter will automatically proceed to a formal conference or hearing within the Fair Work Commission, unless the employee chooses to discontinue their application. Unlike the conciliation conference, an arbitration is a formal process, similar to a court trial, in which a member of the Commission decides for the parties what the solution should be, whether there has been an unfair dismissal and decide the remedy. This decision would only be made after the parties have had a chance to present their evidence and arguments. A decision in the Fair Work Commission can take up to a few months but it may be costly if you engage a representative.

In regard to remedies that can be awarded at arbitration by a Fair Work Commission Member, an employee can be awarded compensation if the Fair Work Commission is satisfied that reinstatement is inappropriate. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress or humiliation.

When determining the amount of compensation that may be awarded, the Fair Work Commission will take into account the employees’ length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated, the efforts of the employee to mitigate the loss suffered because of the termination, such as looking for alternative work, the amount of remuneration earned by the employee from employment or alternative work during the period between the termination and making the compensation order. Aforementioned, there is a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination, whichever is lesser. At arbitration, the Fair Work Commission Member cannot order a Statement of Service be provided and the decision is publicly listed online for anyone to see.

Fair Work Commission Procedure and Remedies for General Protections Claims

Once an employee lodges a general protections application involving dismissal (F8 Application), the Fair Work Commission will set the matter down for a conciliation conference. This procedure is the same as in an unfair dismissal case and the remedies an employee can seek are virtually the same.

However, in addition to seeking compensation for economic loss due to the employee’s dismissal, they can also seek damages for shock, distress or humiliation.

There is also no cap on the amount of compensation that can be sought or awarded by a Court, but the court does look to the same factors as in an unfair dismissal claim (i.e., length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated etc.). However, the Court will also look at the non-economic detriment of the employee, when deciding to award damages. This includes medical evidence or doctors’ reports which demonstrate pain and suffering.

If the parties are unsuccessful in reaching an agreement for a General Protections Claim and the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect. A person has only 14 days after the day the certificate is issued by the Fair Work Commission, to make a general protections court application in the Federal Court or Federal Circuit court.

The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, the General Protections provisions. Orders that the Federal Court or Federal Circuit Court may make include an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention, an order awarding compensation for loss that a person has suffered because of the contravention (which can include interest), or an order for reinstatement of a person. However, the Federal Court or the Federal Circuit Court process and waiting for an order, can take years and cost tens of thousands in legal fees.

How Can We Help?

Are you looking at making a claim but are unsure about how to approach the situation? You may need to seek advice and/or representation through a paid agent or lawyer. As independent workplace advisors, A Whole New Approach (paid agents) can provide you with representation in your unfair dismissal or general protections claim. A Whole New Approach has run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals. We draft the claims and applications on your behalf to a Federal Court standard, run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide even handed advice in regard to the prospects of your case.

If you are unsure whether you have a claim or which application you can pursue, please give us a call on 1800 333 666 for a free and confidential consultation. Its free,

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[1] Fair Work Act 2009 (Cth) s 361.

Fair Work Commission Rejects Employees Claim to Access Investigation Documents

Procedural fairness is one of the factors that the Fair Work Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable under the Fair Work Act 2009 (Cth). Procedural fairness is concerned with the decision making process followed by a decision maker when deciding whether to take disciplinary action against an employee. Thus, the way in which a workplace investigation is conducted, forms part of the procedural elements that are assessed.

In order to conduct a successful workplace investigation, which is procedurally fair, the employer must ensure they have followed their own procedures when deciding to dismiss an employee, they must allow the employee an opportunity to explain their side of the story and they cannot refuse an employee seeking advice or having a support person available at any meetings. The employer must not skip or rush any part of the process or workplace investigation and they must not form an early view about the employee’s guilt or innocence.

Accordingly, it is not uncommon that employer’s conduct investigations and have written records and documents pertaining to this. Although employees may not have a right to peruse this documents during the investigative procedure and upon termination, the question then arises whether these documents can be submitted as part of an unfair dismissal proceeding in the Fair Work Commission.

Fair Work Commission Powers To Compel Production of Documents

The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the Fair Work Commission, such as all documents or records relating to a dismissal process. These types of orders will often require producing parties to consider whether the documents required to be produced are confidential or subject to privilege.

The onus falls on the party claiming legal privilege to demonstrate that the documents were created for the purpose of providing legal advice or for use in legal proceedings. If the claim is successful, the documents will not have to be disclosed to the other party and conversely, if the claim is not successful then the other party will have access to the documents.

This is notwithstanding that s 591 provides that the Fair work Commission is not bound by the rules of evidence and procedure. Legal professional privilege is however not merely a rule of evidence, although given statutory articulation in Pt 3-10 Div 1 of the Evidence Act 1995 (Cth); it is a rule of substantive law and an important common law immunity which may not be abrogated by statute except by clear words or by necessary implication.[1]

FWC Rules Investigation Documents Attract Legal Professional Privilege

In the unfair dismissal case of Tainsh and Willner v Co-Operative Bulk Handling Ltd,[2] the FWC recently ruled upon a claim of legal professional privilege over documents that an employer and its external investigators were ordered to produce as part of an unfair dismissal proceeding. Two employees had been dismissed from their respective positions in the employer’s maintenance team, having had an allegation of workplace bullying directed against them concerning their conduct toward an apprentice or apprentices. On receipt of the workplace bullying grievance, the employer engaged Minter Ellison, a firm of lawyers, to undertake an investigation into the complaints.

The employer argued that certain categories of the documents filed with the Commission are, on record, confidential communications that are protected from production to the Commission by legal professional privilege. These documents were investigation and disciplinary documents and whilst the employees accept accepted the privilege claim with respect to the disciplinary documents, the issue remained concerning the investigation documents.

In Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons,[3] unfair dismissal case, the Full Bench of the Fair Work Commission expressed that the Commission is not empowered under s 590(2)(c) of the Fair Work Act 2009 (Cth), to issue orders requiring the production of the documents containing communications which are subject to legal professional privilege where the person to whom the privilege belongs objects to the production of the document. The Full Bench of the Fair Work Commission described two limbs of legal professional privilege.

The first, the legal advice limb,[4] is relevant to the application on foot. Under the legal advice limb of legal professional privilege, a communication will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice.[5] The Full Bench explained that this type of privilege applies to confidential written and oral communications between a lawyer and a client or between lawyers acting for a client, or the contents of a confidential communication prepared by the lawyer, the client, or another person, for the dominant purpose of the lawyer(s) providing legal advice to the client.[6]

In Tainsh and Willner v Co-Operative Bulk Handling Ltd,[7] Deputy President Beaumont of the Fair Work Commission, held whilst the documents attract privilege, there are exclusions that the Commission can rely upon. Deputy President Beaumont of the Fair Work Commission did not consider that there was disconnect between what was told to the employees and what was happening between Minter Ellison, the independent investigators, and the employer, such that unfairness would justify a finding of waiver in these circumstances.

An investigation carried out under employers’ procedure may or may not be privileged,

depending on the purpose for which that particular investigation has been commissioned. In this case, Deputy President Beaumont of the Fair Work Commission, held it was. However, the Procedure is silent on the point. Further, Deputy President Beaumont of the Fair Work Commission noted that it was communicated to the employees that the interviews with the independent investigator were not disciplinary interviews.

Thus, Deputy President Beaumont of the Fair Work Commission held that the only purpose of the investigation and the documents created in connection with the investigation was for the law firm to provide legal advice to the Respondent. For Deputy President Beaumont of the Fair Work Commission, this meant that legal professional privilege was directly applicable to the investigation documents. Deputy President Beaumont of the Fair Work Commission did not agree that letters issued to the Applicants during the investigation process demonstrated that legal advice was not the dominant purpose of the investigation documents, finding instead that they did not deviate from this purpose, or were contemplated by the employer’s Investigation Protocol document itself.

Accordingly, Deputy President Beaumont of the Fair Work Commission found, subject to certain exclusions, that the investigation documents attracted legal professional privilege. Deputy President Beaumont of the Fair Work Commission Beaumont was also not satisfied that there had been any waiver of privilege.

In this case, the workplace investigation was conducted by an external investigation firm on the instruction of law firm acting on the employer’s instructions for legal advice. The employer was successfully able to maintain its claim of privilege over the investigation documents as they were created with the dominant purpose of the law firm providing the employer with legal advice.

As you can see from the above unfair dismissals, general protections, and the processes that sit behind the applications / claims can get quite complicated. I’m pointing this out not to discourage you from your claim but to keep you informed. If you have any questions queries, give us at A Whole New Approach a call, its free. 1800 333 666

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[1] Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552 [9]-[11]; Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons [2021] FWCFB 2623 [61].

[2] [2021] FWC 3381.

[3] [2021] FWCFB 2623 [60].

[4] Ibid [62].

[5] Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552 [9].

[6] Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons [2021] FWCFB 2623 [62].

[7] [2021] FWC 3381.