All posts by: Gary Pinchen

Unfair dismissal: Why procedural fairness matters

Unfair dismissal: Why procedural fairness matters

When an employee is dismissed, there are many factors that the Fair Work Commission (FWC) considers to determine if the dismissal was unfair. It must, of course, meet the definition of an unfair dismissal, (valid reason). Which is one that was harsh, unjust or unreasonable. The reason for the dismissal must also be sound, defensible or well founded, among many other factors that the FWC considers. Unfair dismissal: Why procedural fairness matters is important article to read, so you know your rights.

There is one factor, however, that many Australian workers may overlook as key to their chances of making a successful unfair dismissal claim. That is, whether they were denied procedural fairness prior to being dismissed.

What is procedural fairness?

Procedural fairness, also known as natural justice, is when an employee is provided with a fair and reasonable opportunity to be heard before a disciplinary or performance decision is made. That is, so the employee can defend themselves or raise any extenuating circumstances relating to the allegation made against them.

Procedural fairness relates to the decision-making process and the steps taken by an employer, rather than the decision itself. When the Fair work considers procedural fairness in an unfair dismissal case, it will generally take into account whether:

• The employer followed its own procedures for dismissing an employee. And also, that it conducted reasonable and thorough enquiries relating to the issue that led to the dismissal.
• The employee was provided the chance to explain their side of the story
• The employee was able to seek advice or have a support person present at a meeting discussing their issue
• If the issue involved unsatisfactory performance, whether the employee was provided warnings about their performance
• The employee was provided a reasonable amount of time to respond to the issue
• The employer considered the employee’s response to the issue.

Why procedural fairness is critical in unfair dismissal cases

In many unfair dismissal cases, an employee could be guilty of misconduct that would provide a valid reason for their dismissal. However, if they were denied procedural fairness, their dismissal can be deemed as unfair. This is because without procedural fairness, an employee is generally not given the opportunity to respond to the claims made against them. They therefore aren’t given a proper chance to improve their conduct.

Let’s look at one such case of an employee who had regularly behaved in a manner that justified dismissal, DeVania Blackburn v Virgin Australia Airlines T/A Virgin Australia [2022]. However, because she was denied procedural fairness, her dismissal was deemed unfair by the Fair work Commission.

Napping, movie-watching flight attendant is reinstated by FWC

In July, a Virgin flight attendant who had been dismissed for numerous instances of misconduct was reinstated by the Fair work. She had been dismissed for napping on the job, stealing snacks and watching a movie during a flight.

The Fair work found that Virgin’s investigation into the misconduct had been delayed by COVID-19, contributing to several procedural fairness deficiencies. This investigation came after the flight attendant – a 14-year Virgin employee – was alleged to have breached her employer’s code of conduct numerous times.

What was the flight attendant accused of?

Most of the flight attendant’s alleged misconduct took place on a flight from Brisbane to Cairns in January 2021.

Firstly, the flight attendant was observed stuffing Virgin food products into her bag by her colleagues. She then departed the aircraft with the bag containing the food. This was in contravention to Virgin’s code of conduct, which states that staff can eat airline food while on board, but can’t take it off the aircraft.

Secondly, the flight attendant was observed sitting in a passenger seat and watching a movie on an iPad. This was while her colleagues were providing in-flight service to passengers. The flight attendant was later observed to be asleep in the same seat.

Thirdly, the flight attendant did not sign on or off from duty. She also failed to do this on a separate flight in February. And finally, on the January 2021 flight, the flight attendant was not dressed and presented in accordance with Virgin policy. She was not wearing makeup, her hair was messy and her nail polish was chipped. And on another flight in March, the flight attendant did not wear stockings.

How procedural fairness factored into this unfair dismissal case

These allegations resulted in Virgin conducting an investigation into the flight attendant’s misconduct, which took place over the course of a month. This resulted in a show cause letter being sent to her. That is, a letter that required her to demonstrate why her employment should not be terminated.

In response to the show cause letter, the flight attendant denied the allegations of misconduct made against her. She even stated that she considered the allegations as “defamation,” and that they had been made out of “spite.”

The flight attendant was then invited to a meeting in which she could verbally respond to the allegations. And she was given the opportunity to have a support person attend this meeting. The flight attendant agreed to attend, and during the meeting, said that she had nothing further to say about the allegations.

Following the meeting, the flight attendant was advised that she would be immediately dismissed. She was later sent a termination letter confirming her dismissal.

How did Virgin fail to provide procedural fairness?  

From what we have detailed so far, it seems like Virgin did everything right in its handling of the flight attendant’s misconduct. It had notified the flight attendant about her misconduct in writing. It had also set up a meeting allowing her to respond to the misconduct, with the option of having a support person present.

However, at the flight attendant’s unfair dismissal hearing with the Fair work, it was found that Virgin had failed to provide sufficient procedural fairness leading up to the decision to terminate her employment. There were three main deficiencies that the Fair work identified.

First reason the dismissal was procedurally unfair

Firstly, the Fair work found that Virgin had relied on prior warnings that it had issued to the flight attendant to make its decision to dismiss her. But it had failed to include these warnings in the show cause letter or the letter of termination.

The Fair work found that Virgin’s reliance on these warnings was procedurally unfair. This is because it did not let the flight attendant know that they played a part in her dismissal. Also, because Virgin did not provide her with a chance to respond.

Second reason the dismissal was procedurally unfair

Secondly, the Fair work found that Virgin failed to consider the flight attendant’s medical condition when investigating why she had not signed on or off her duties. The flight attendant had not informed Virgin of this condition until the show cause meeting. But the condition was not considered in Virgin’s decision to dismiss her.

Third reason the dismissal was procedurally unfair

Thirdly, the Fair work found that the length of the investigation contributed to the process being procedurally unfair. The investigation had taken a month, and it took several more for the flight attendant to be sent a show cause letter. This delay was caused by the heavy load Virgin’s HR personnel were experiencing because of COVID-19 issues, such as border restrictions and stand downs.

Commissioner Paula Spencer accepted that these factors contributed to the delay. But she said that the process of dealing with the flight attendant’s misconduct could have been handled better by Virgin.

“Apart from the prior warning (which was not relied upon), the alleged breaches and events occurred in a confined period, in short proximity to each other, and in the circumstances might have been dealt with by a significantly clear warning, where the result for a repeat of the conduct should have been established,”

Commissioner Spencer

For these reasons, Commissioner Spencer ruled that the flight attendant’s dismissal was unfair. She found that Virgin had failed to properly assess the circumstances surrounding the misconduct. And that instead of dismissal, the company should have reasonably considered alternatives forms of disciplinary measures.

Have you been denied procedural fairness?

The aforementioned case teaches us that employers are beholden to very rigorous standards when it comes to the decision-making process around dismissing an employee. If an unfair dismissal case is heard by the Fair work, the steps an employer took leading up to the dismissal are important. also the way it communicated with the employee will be closely scrutinized.

A dismissed employee may have undeniably engaged in misconduct. However, if they were denied certain rights, like warnings about the misconduct or the opportunity to defend themselves, the dismissal can be ruled unfair.

Conclusion to Unfair dismissal: Why procedural fairness matters

Have you been unfairly dismissed?

We at A Whole New Approach are experts in handling unfair dismissal claims. For the last two decades, we have helped over 16,000 employees make claims in every Australian state. With our experience, we are able to assess your situation to identify if you were denied procedural fairness by your employer.

For those not familiar with workplace relations issues, it is often hard to determine if you were in fact provided with procedural fairness or not. This is because there are so many factors involved and processes that employers must adhere to. All casual employee issues, toxic workplaces, abandonment of employment concerns, whatever we are here for you

If you feel you have been unfairly dismissed, call us today on 1800 333 666 for a free and confidential conversation.

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Gary Pinchen

Top workplace advisor. Adverse action claims, general protections, unfair dismissal and sexual claims are fair work issues. Call for free, private advice.

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Dismissed for providing good customer service

Dismissed for providing good customer service

Being dismissed for not meeting Key Performance Indicators, or KPIs, is often a risk employees can face. After all, we now live in a world where many employees are judged by their performance against certain metrics. And these metrics are closely monitored and scrutinized by often overzealous managers and bosses. Its all about the numbers, the return on investment, particularly when the work is outsourced. Positive customer experience comes in a distant second, dismissed for providing good customer service is a wake reminder for employers to do better. and you as an employee are not unfairly dismissed in these circumstances.

Well-formulated and fair KPIs are designed to ensure an employee meets ideal performance standards. However for some employees KPIs can seem arbitrary, unattainable and provide an incentive to ignore other aspects of their role. For instance, employees who work in customer-facing roles are often given aggressive KPIs that prioritise other outcomes over providing good customer service.

We generally see this with customer service representatives in call centers, who are often placed under pressure to minimize time spent speaking to customers. Many of these representatives may want to genuinely help customers, but their KPIs make it very difficult to do so. This leads to increasingly toxic workplaces and stress of individual employees.

Mechanic faces dismissal for failing to meet KPIs

Even roadside service mechanics face this dilemma between providing genuine help to customers and meeting their KPIs. In 2021, a motor services company dismissed roadside mechanic Yen Yap for failing to meet his KPIs.

Mr Yap worked for Club Assist, which provides roadside assistance service to the NRMA and other motoring companies across Australia. The 61-year-old mechanic, who had worked for Club Assist since 2017, failed to meet several demanding KPIs. Mr Yap had failed to:

• Sell batteries to customers on at least 24 per cent of jobs he attended
• Reduce the time he spent on each job, having spent longer than the average working time of 17 minutes
• Ensure that he only replaced 3.9 per cent of batteries under warranty against the number of batteries he sold. In August 2021, for instance, Mr Yap had replaced 20.6 per cent of batteries under warranty. Which Club Assist considered “exceptionally high.”

These KPIs clearly prioritized profit over providing comprehensive and genuine help to customers. Battery sales are of particular importance to the NRMA, as battery sales make up a large portion of their business. And the KPI to minimize the replacement of batteries under warranty is to ensure Club Assist employees are not giving away free batteries.

The mechanic was warned of poor performance prior to dismissal

More than a year prior to his dismissal, Mr Yap had been placed on a performance improvement plan for failing to meet his KPIs. When this performance improvement plan ended, he received a written warning. This stated that due to his “continued failure to meet expectations… his ongoing employment was at risk.”

Almost a year after that warning, Mr Yap was issued a show cause letter. This stated that while he had made some improvements with his three KPIs, he was still not meeting them. Months later, Mr Yap was dismissed. He subsequently made an unfair dismissal claim with the Fair Work Commission (FWC).

Mechanic has his unfair dismissal case heard at the FWC

At Mr Yap’s unfair dismissal hearing – Yen Yap v Club Assist Pty Ltd [2022] – Club Assist argued that his KPIs were in line with industry standards. The company also said that “some variation is inevitable and expected” with respect to meeting KPIs. However, Mr Yap “fell well short” of his KPIs for “a prolonged period” of almost 22 months.

Club Assist asserted that Mr Yap’s KPIs were outlined in the position description for his role as a Technical Roadside Responder (TRR). However, FWC Deputy President Boyce found that there was “no evidence” that this position description was ever provided to Mr Yap.

“There cannot be any express terms of the employment contract between Mr Yap and Club Assist requiring him to adhere to the KPIs given that the position description for a TRR was never provided to him,” said Deputy President Boyce.

KPIs required mechanic to “prove innocence” or face dismissal

Deputy President Boyce accepted that Club Assist “was generally able to devise KPIs” to achieve its desired outcomes. He also accepted that Mr Yap’s KPIs “might be an acceptable tool to measure general performance comparatively amongst roadside patrol officers.”

However, in addition to Mr Yap’s KPIs not having been “explained in writing,” Deputy President Boyce found that the facts to support Mr Yap’s performance “are unproven.” He also criticized the entire premise of Mr Yap’s KPIs.

“… the manner in which the KPIs have been applied to Mr Yap assumes that where he fails to meet a KPI he is guilty of certain performance failings or conduct, and is thereafter required to prove his innocence. The approach is not only unsatisfactory, but unacceptable,”

Deputy President Boyce.”

The mechanic was “manifestly denied” procedural fairness

Deputy President Boyce also found that Mr Yap had been “manifestly denied” procedural fairness. He said that the show cause letter Mr Yap received did not communicate concerns about his “assertedly poor attitude.” It also did not communicate concerns about his lack of battery sales and his high rate of replacing batteries under warranty.

“Mr Yap was, therefore, not notified that his employment was in jeopardy due to any of these matters before any decision to dismiss was made. There was no reasonable or sensible reason why this could not occur,” said Deputy Commissioner Boyce.

Deputy President Boyce asserted that had Mr Yap “could have sought to allay concerns about his attitude” had he been informed about these concerns. Ultimately, Deputy President Boyce found that Mr Yap’s dismissal was unfair. Finding that a “sufficient level of trust and confidence can be restored between the parties,” he ordered for Mr Yap to be reinstated in his role.

Can an employee be fairly dismissed for failing to meet KPIs?

KPIs are a widely accepted way to measure employee performance. Generally, if KPIs are not met, an employer can use this to justify an employee’s dismissal. However, the aforementioned case teaches us that employers must meet certain obligations when assigning KPIs.

There were a number of reasons why Mr Yap’s failure to meet his KPIs was an invalid reason for dismissal. One that Deputy President Boyce highlighted was that Mr Yap had not been provided any documentation that outlined the specifics around his KPIs.

“… there is no document that sets out or explains each of the KPIs, how each KPI has been derived, what definitions are associated with the KPIs, how the KPIs are assessed, what variables are accepted as impacting upon KPIs, or how such variables are dealt with in terms ultimate KPI outcomes,”

Deputy President Boyce.

This demonstrates how important it is for employers to provide you with the detail around your KPIs. Not some vague statement of “you have to do better”, “try harder”.

Employers have obligations when setting KPIs

The aforementioned case also illustrates that it’s critical for employers to clearly communicate their concerns when you fail to meet KPIs. Also, that you are given an opportunity to address these concerns. The unfair dismissal case also highlights the importance for employers to provide you with reasonable KPIs.

In the aforementioned case, Deputy President Boyce found that many of the KPIs set for Mr Yap were not reasonable given the nature of his role. He found that Mr Yap’s KPIs prevented him from delivering “appropriate and professional service to [NRMA] customers.” Deputy President Boyce also said that if Mr Yap’s job was complex or difficult, that he “should necessarily spend more time on them.”

“Average working time and time on job measures were a perverse incentive to not complete work properly or professionally,” said Deputy President Boyce.

You have workplace rights

If you have been issued KPIs that seem too ambitious or perhaps arbitrary, you have the right to ask for further information about them from your employer. For instance, about how they were derived and how they will be assessed. Your entitled to have them set out in writing to you.

You also have the right to question the validity of your KPIs and request their revaluation. This includes if your KPIs fail to take into account other expectations of your role. Like for instance, providing good customer service. We observed this during the pandemic lockdowns and employee increasing sick leave, where employers still demanded the same performance and results.

The Fair Work Act 2009 provides all workers with the right to make a complaint or inquiry in relation to their employment. That is, without being dismissed or treated unfairly by their employer. If you are, you could be eligible to make an adverse action claim to seek redress through the FWC.

Conclusion to Dismissed for providing good customer service

Have you been unfairly dismissed for missing your KPIs?

If you have been treated unfairly or dismissed for failing to meet your KPIs, A Whole New Approach can help. We are Australia’s leading workplace advisors and commentators. In the last two decades, we have assisted over 16,000 employees to make an unfair dismissal claim.

Our team can help you understand if you can purse redress through the Fair work. We provide you invaluable guidance throughout the process. All workplace investigations, casual employees issues, workplace harassment.

Call us today on 1800 333 666 for a free, confidential discussion about how we can help you seek redress.

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Gary Pinchen

Top workplace advisor. Adverse action claims, general protections, unfair dismissal and sexual claims are fair work issues. Call for free, private advice.

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Dismissed for omitting smiley emoji

Dismissed for omitting smiley emoji

Woman dismissed for not using smiley emoji

A Queensland woman was dismissed by a Gold Coast café after her boss said she was being “unfriendly” by failing to include a smiley face emoji in a text message. The woman took her case to the Fair Work Commission (FWC), who in July ruled that her dismissal was unfair. It is stressful times, but there is no excuse for bullying, unfairly dismissing someone, to not give all employees a “fair go” (procedural fairness). Dismissed for omitting smiley emoji article is more relevant than ever.

The unfair dismissal case – Kristen Gordon v Sens Catering Group Pty Ltd [2022] – involves Kristen Gordon, who worked as a supervisor by Sens Catering Group, otherwise known as Sens Café, for 14 months. She was known as a reliable and hard-working employee, and while she was a casual, worked full time hours.

But in November 2021, Ms Gordon’s work life soon took a turn for the worse. This was when the ex-wife of Sens Catering’s owner, Phoebe Wang, took up the duties of general manager. The trouble started when Ms Gordon was brought into a meeting because she had told the café manager that she couldn’t work some days because she was receiving IVF treatment.

Ms Gordon was forced to divulge details about her personal life to Ms Wang, who questioned whether she should be working while receiving treatment. Ms Gordon affirmed that she needed the money, and that she could still perform her duties, besides lifting milk crates.

“FIRE HER RIGHT NOW!!”

In March 2022, Ms Gordon felt the full wrath of Ms Chen’s anger when she sent a group text message to her and other managers. In the text, Ms Gordon expressed the need for the business to hire another staff member, as the café was understaffed. Ms Chen’s previous solution to this problem was to order Ms Gordon to “close the floor- do takeaways only/ close cold drinks section.” 

When Ms Wang read the text message, she became extremely irate at Ms Gordon. A manager who was with Ms Wang at the time said that she smashed her phone on the counter. She then jumped up and down while screaming “FIRE HER RIGHT NOW!! Hire another supervisor I don’t care about the cost, do it now!” 

When the manager asked Ms Wang why she was so angry, she repeatedly said it was because Ms Gordon “didn’t add any smiley faces! There are no emotions!” Because of this, Ms Wang considered the text “unfriendly.”

Ms Wang starts planning the worker’s dismissal

The manager became very uncomfortable at this very aggressive display. She attempted to reason with Ms Wang, saying that the text was nothing out of the ordinary, and that Ms Gordon didn’t mean to cause any harm. To this, Ms Wang simply reiterated that the lack of emojis was rude and repeatedly called for Ms Gordon to be dismissed.

That afternoon, Ms Wang offered Ms Gordon’s job to the manager. When the manager was unsure about accepting the offer, Ms Wang said “are you worried about hurting her feelings? Don’t worry about that we have wanted to get rid of Kristen for a long time.” Later that afternoon, the manager spoke with Ms Gordon and told her about the incident with Ms Wang.

The Café worker is dismissed by the company

Turning up at the café the next day, Ms Gordon was told by a different manager that she was forced to dismiss her. The manager said that she had tried to change Ms Wang’s mind, but that she couldn’t be convinced otherwise. Ms Gordon asked for a reason for her dismissal, but the best that the manager could provide was that the business was getting rid of staff that didn’t agree with the owners.

Employer makes a suspicious offer

After having her employment terminated, Ms Gordon filed an unfair dismissal application with the Fair work. However, a week after her dismissal, Ms Wang came and spoke to her and offered her two weeks paid leave. She also offered Ms Gordon a position at a new store the Sens Catering owners were investing in.

Ms Wang explained that Sens Catering would own a small percentage of the store. When Ms Gordon asked if there would be an interview process, Ms Wang said that there wouldn’t. She told Ms Gordon that she would simply tell the store’s other investors that Ms Gordon was “good.”

Ms Gordon was suspicious. After questioning the offer, Ms Wang offered to give Ms Gordon two weeks off and that after that, she could start the new role. Ms Gordon asked for the offer to be put in writing, but Ms Wang declined. At that point, Ms Gordon ended the conversation.

The Fair work orders employer to pay $14,300

Sens Catering declined to participate in Ms Gordon’s unfair dismissal hearing with the FWC. The company did, however, submit that Ms Gordon was offered two weeks paid leave “in good faith” after she was dismissed. It also contended that Ms Gordon had agreed to return back to work thanks to this offer.

Like Ms Gordon, Commissioner Chris Simpson found Sens Catering’s offer to be suspect.

“I am inclined to the view that Ms Wang’s offer of additional payment to [Ms Gordon] as a casual employee and a period of ‘paid leave’, and the potential offer of other future employment with another business at the end of that period of ‘leave’ were attempts to resolve the dispute about the earlier dismissal, rather than either an offer to rescind the termination, or to attempt to maintain a purported ongoing casual employment relationship,”

Commissioner Simpson.

Commissioner Simpson found that had Ms Gordon not been unfairly dismissed, she would have kept her job for at least three more months. He therefore ordered Sens Catering to pay her $14,300.

The Commissioner, however, subtracted several payments made by Sens Catering to Ms Gordon following her dismissal. He also subtracted wages that she had earned from a short-term casual job. This left her with $5,300 in compensation, plus superannuation.

Has the world gone mad? Offending your boss is now seemingly easier than ever.

The aforementioned case is a glaring example of how some employers can perhaps be a tad too precious at times. Sacking someone for omitting a smiley emoji might go down as perhaps the most absurd reason in history. Should employees simply pick up the phone like in the old days, and therefore avoid the apparent pitfalls of digital communication? This might be a good idea when it comes to some bosses. While being offended by a text message that lacks an emoji is an extraordinarily extreme reaction, it does raise a key question. What is considered offensive in a workplace context?

Of course, sending a text or email that features, for example, racist or sexist sentiment would universally be considered offensive. For an employee, sending such communications to their boss would likely see them suffer legitimate consequences. For instance, they could be fairly dismissed for breaching their employer’s code of conduct.  

The problem with text messages and emails, however, is that even if you aren’t intending to be offensive, at times, your words could be interpreted as so. Such digital means of communication, after all, don’t allow you to convey tone. Sometimes, the recipient may project their own tone onto your words, and this could cause offence.

A different unfair dismissal case, this time in New Zealand, provides another example of how a digital message can be misinterpreted as offensive. And this one is almost as hard to believe as the emoji case.

Accountant dismissed for using capitalized letters

In 2007, an Auckland accountant was dismissed for regularly sending “controversial” emails that featured words that were capitalized, in bold and red.

The accountant, Vicki Walker, had been the financial controller for ProCare Health for two years. The so-called controversial emails that she sent were to advise her team how to complete staff claim forms. In the emails, she would highlight the time and date by making it bold and red. She also wrote a sentence in all capitals, which read: “TO ENSURE YOUR STAFF CLAIM IS PROCESSED AND PAID, PLEASE DO FOLLOW THE BELOW CHECKLIST.”

Following her dismissal, Ms Walker made an unfair dismissal claim with New Zealand’s Employment Relations Authority. As part of her hearing, ProCare health told the Authority that Ms Walker’s emails had “caused disharmony” in the workplace. The Authority, however, sternly disagreed that Ms Walker’s dismissal was warranted. ProCare didn’t have a style or etiquette guide for emails, therefore it wasn’t clear to Ms Walker that her emails would be unacceptable.

“I am a single woman with a mortgage, and I had to re-mortgage my home and borrow money from my sister to make it through,” said Ms Walker of the ordeal. “They nearly ruined my life”. Fortunately sanity prevailed, and the Authority ruled that her dismissal was unfair. She was awarded $17,000 in compensation.

Conclusion to Dismissed for omitting smiley emoji

Have you been unfairly dismissed?

Our team at A Whole New Approach can guide you through the process of making an unfair dismissal claim. We are Australia’s leading workplace advisors and commentators. In the last two decades, we’ve handled over 16,000 employee claims in every Australian state. We are proud of our staff and the outcomes they get fort our clients

If you have been unfairly dismissed, we can help make your claim a success. All Fair work matters, abandonment of employment, redundancy serious misconduct

Call us today on 1800 333 666 for a free, confidential discussion about how we can help you seek redress.

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Gary Pinchen

Top workplace advisor. Adverse action claims, general protections, unfair dismissal and sexual claims are fair work issues. Call for free, private advice.

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Dismissed for expressing personal views

Dismissed for expressing personal views

There have been many cases of Australian workers being dismissed for expressing a personal view, a political opinion or even making an inappropriate joke. Some of these were found to be unfair dismissals by the Fair Work Commission (FWC), while others were upheld.

The fact is that while the Fair Work Act 2009 does provide employees with protections to express their political opinion or personal views, there are limits to what you can say in the workplace. The policies of your workplace – whether it is an office, factory or restaurant – also factor into what you can say. As does whether your views or opinion have a harmful effect on others.

In a case heard by the Fair work in July – Paul Kallipolitis v Australian Postal Corporation [2022] – an employee was dismissed after spreading COVID-19 conspiracy theories at work. Let’s look at the events of the case and how the Fair work Commission came to a ruling.

Australia Post worker spouts conspiracy theories to customers

In 2021, a Sydney-based delivery driver landed in hot water with his employer, Australia Post. This took place while COVID-19 restrictions where in place across New South Wales. While attending the back dock of a JB Hi-Fi store, the delivery driver had refused to wear a mask and didn’t sign in with a QR code. He also engaged in a discussion about COVID-19 conspiracy theories with JB Hi-Fi staff.

The delivery driver receives a complaint

JB Hi-Fi soon made a complaint about the delivery driver, and he was instructed by Australia Post not to return to the store. Initially agreeing to that directive, the delivery driver returned anyway. And when he got there, he refused to wear a mask once again, and demanded to know who made the complaint about him.  

The delivery driver then started going off on a tangent, expressing numerous conspiracy theories. He told JB Hi-Fi staff how he doesn’t watch mainstream media because it is all “bullsh*t.” He also spoke about the conspiracy surrounding Jeffrey Epstein’s death.

After the JB Hi-Fi store manager issued another complaint to Australia Post, the delivery driver was told by his manager not to drive his van. He was also placed on other duties while a formal investigation took place. The delivery driver, however, didn’t react with compliance. He demanded “I want the complaint in writing,” and that if he didn’t receive it, that his manager was “lying.”

A tense stand-off between the delivery driver and his manager

The delivery driver then grabbed the key to his van and entered the vehicle. As he drove off, his manager and another employee followed. The delivery driver then lowered the window and demanded once again “I want it in writing.” His manager said that if he drove off, he would notify the police.

The delivery driver then drove onto the road, and his manager and the other employee attempted to block his way. Seeing that the delivery driver was driving much faster than the 5km per hour speed limit, they soon jumped out of his way. The manager then said, “fine, do your run,” and the delivery driver sped off.

Delivery driver is dismissed for serious misconduct

The delivery driver then drove to Australia Post’s distribution centre, where the centre manager informed him that he had been suspended. He then used his own car to drive to the JB Hi-Fi store, and once again began spouting conspiracy theories about COVID-19.

After Australia Post completed its investigation into the delivery driver’s behaviour, it found that he had repeatedly failed to follow lawful and reasonable directions. He was subsequently dismissed for “serious and willful misconduct.” He soon after made an unfair dismissal claim with the Fair work Commission.

The delivery driver attempts to have his unfair dismissal overturned

At his Fair work hearing, the delivery driver argued that he had a medical exemption to not wear a mask. He also said that he did not use the QR code to sign in because he hadn’t physically entered the shopping centre in which the JB Hi-Fi store was located.

The delivery driver argued that there was no evidence that he had discussed COVID-19 conspiracy theories. However, if Australia Post could provide evidence that he had, the delivery driver argued that it was “hard to see how that could be some form of misconduct.”

He also said that there was no suggestion that he was “proselytizing a particular point of view which may have been objectionable.” Also, that “mere discussion would seem to be unexceptional, regardless of a person’s viewpoint.”.

The FWC makes its ruling on the unfair dismissal case

The crux of this unfair dismissal case was not that the delivery driver had spouted conspiracy theories in the workplace. Nor that he had flouted COVID-19 restrictions, which Commissioner Alana Matheson said “could’ve been managed” by Australia Post. Rather, it was that the delivery driver had willfully disobeyed directions from his employer.

Commissioner Matheson found that these directions were “lawful and reasonable.” She said that the seriousness of his misconduct was compounded by returning to the JB Hi-Fi store after his suspension.

“The facts are that [he] was told not to return to the JB Hi-Fi store and not to talk to JB Hi-Fi staff members about the complaint yet he did so, not only once after being told not to, but again by his own admission”.

Commissioner Matheson member of the Fair work Commission

She ruled that in failing to comply with lawful and reasonable directions, the delivery driver’s dismissal was not harsh, unjust or unreasonable – the criteria by which a dismissal is ruled as unfair.

“In all the circumstances, I have formed the view that the decision to dismiss the [driver] was not a disproportionate one,” said Commissioner Matheson.

Are there laws that protect freedom of expression in the workplace?

The Fair Work Act does provide protections for employees when expressing personal or political views in the workplace. These are contained in the General Protections provisions, which state that it is unlawful for an employer to take harmful action against an employee for certain prohibited reasons.

One of these prohibited reasons is if an employee expressed a political opinion. The Fair Work Act states that an employer must respect the rights of an employee to exercise their political opinion, which is defined as:

• Membership of a political party
• Expressed political, socio-political, or moral attitudes
• Civic commitment

However, if an employee can be fairly dismissed if their political opinion contravenes their employer’s values or policy. They can also face dismissal if they engage in politically motivated acts of violence.

Can you be dismissed for expressing non-political views?

The General Protections provisions also outline other reasons for which an employer can’t legally discriminate against or dismiss an employee. This includes doing so because of their race, sex, sexual preference or religion, among other personal attributes. A view or opinion expressed by an employee can potentially fall under one or more of these prohibited reasons. If it does, and they are discriminated against or dismissed, the employee may have a legal imperative to seek redress through the FWC.

If an employee is dismissed for expressing their views, but their views don’t fall under one of the General Protections prohibited reasons, they may be eligible to seek redress by making an unfair dismissal claim with the FWC. The success of an unfair dismissal claim will hinge on several factors, however. This could include if your employer has a policy in place that prohibits the expression of such views. Also, if the expression of your views damaged the reputation of your employer.

Be careful what you say in the workplace

Despite the aforementioned legal protections, it is important to remember that what you say while at work could get you in trouble. The success of General Protections and unfair dismissal claims hinge on a variety of factors, so it is not a certainty that you will win your case. You may not even be eligible to make a claim. (be aware of the strict 21 day rule to lodge a claim).

You must also consider the possible implications of expressing your views in the workplace. If your views could be interpreted as racist or sexist, for example, you could face consequences under federal, state or territorial anti-discrimination legislation.

You must also consider if your workplace has policies in place that prohibit certain forms of speech. For instance, making a course remark or joke could land you in hot water. This is what happened to a disability support worker in 2015, who was dismissed for joking about sexual assault.

In the unfair dismissal case – Hengst v Town and Country Community Options Inc. [2016] – the support worker’s joke was overheard by a colleague. This colleague reported the joke to their boss, who then confronted the support worker.

Despite offering “profuse apologies” to his boss, the worker was dismissed for inappropriate conduct. He subsequently made an unfair dismissal claim with the Fair work, and at his hearing, argued that the joke was a “slip of the tongue.”  The FWC accepted that the comment wasn’t intended to hurt, abuse or threaten anyone in particular. However, the worker’s claim was denied as the incident had eroded the foundation of trust between him and his employer.

Conclusion to Dismissed for expressing personal views

We get a lot of enquires regarding workplace behaviour that has in reality nothing to do with the workplace. Other than it happened in the workplace. What were once great places to work, end up as a toxic workplace.

Have you been treated unfairly for expressing your views?

If you have been treated unfairly or dismissed for expressing your personal views at work, A Whole New Approach can help. We are Australia’s leading workplace advisors and commentators, with over two decades’ experience assisting workers fight for their rights. Our team can help you understand if you can purse redress through the Fair work and provide you invaluable guidance throughout the process. All workplace investigations, forced to resign, adverse action. call now.

Call us on 1800 333 666 for a free, confidential discussion about how we can help you successfully claim compensation.  

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Gary Pinchen

Top workplace advisor. Adverse action claims, general protections, unfair dismissal and sexual claims are fair work issues. Call for free, private advice.

unfairdismissalsaustralia.com.au/

Tribunal backs dismissal for “rainbow boy” remarks

Tribunal backs dismissal for “rainbow boy” remarks

A NSW Ambulance employee who was dismissed for making homophobic comments has failed to have his dismissal overturned. In June, the NSW Industrial Relations Commission (IRC) ruled that the employee had breached his employer’s Code of Conduct for using a variety of highly offensive terms to describe his colleagues. Tribunal backs dismissal for “rainbow boy” remarks and the consequences are important reading.

Tribunal backs dismissal

Let’s look at the events of this case – Knowles v Health Secretary 2022 – and see why the NSW IRC came to its decision. We must warn you, however, that the following features highly offensive and homophobic language.

Foul-mouthed worker engages in regular pattern of homophobic comments

Brian Knowles had commenced working for the Ambulance Service of NSW in 2015 as a Duty Operations Manager. During his tenure, Mr Knowles regularly made crude, disrespectful and often homophobic comments when communicating with his line manager. These comments were made via text and email.

Mr Knowles described his colleagues using a wide range of offensive terms. This included calling them “spastic,” the “retard crew,” “c*ck” and “c*nts.” He also used a variety of homophobic slurs like “lessos” and “rainboy boy.” In a conversation with colleagues, Mr Knowles also called an openly gay co-worker as a “shirt lifter.”

And it wasn’t just offensive comments that marked Mr Knowles’ time at NSW Ambulance. In January 2020, while coordinating paramedic services for an Elton John concert, he helped his manager gain free entry into the concert. This was after his manager made several requests for him to do so.

Ambulance NSW dismisses employee for misconduct

In 2021, Ambulance NSW conducted an internal investigation into the behavior of Mr Knowles. The investigation concluded that he had breached two clauses of the NSW Health Code of Conduct.

Firstly, clause 4.1.2, which says that employees are to “treat all other members of staff… in a way that promotes harmonious and productive working relationships.”

Secondly, Mr Knowles was found to have breached clause 4.2, which directs employees to demonstrate honesty and integrity. He was found lacking in this regard due to helping his manager gain entry to the Elton John concert. Following the investigation, Mr Knowles was dismissed by Ambulance NSW for misconduct in August 2021. He subsequently lodged an appeal against his dismissal with the NSW IRC.

Ambulance worker claims he was “venting”

At his NSW Industrial Relations Commission hearing following his dismissal, Mr Knowles argued that his abusive language was in fact a method of dealing with the frustrations of his job.

“These messages were nothing more than two managers venting their frustrations in what was an extremely stressful job, working in a toxic environment, In 2010, when I had completed my Ambulance Management Qualification (AMQ), I remembered being taught to ‘vent upwards’ when we felt frustrated in the job, and it was part of our manager’s role to listen to these frustrations.”

said Mr Knowles.

Mr Knowles acknowledged that his comments was inappropriate. However, he continually attempted to contextualize them, highlighting that his workplace was very stressful and that he was just “letting off steam.”

Mr Knowles also argued that his employer had “no right to trawl through private emails and texts.” Given the private nature of his conversations with his manager, he claimed that he had not breached the Code of Conduct.

“It was disgusting”: Ambulance worker shows contrition for his actions

While Mr Knowles did attempt to lessen his culpability for any wrongdoing that led to his dismissal, he did however admit that the way he had acted was wrong. If the NSW Industrial Relations Commission were to reinstate him in his position, Mr Knowles said that he would apologise to all those colleagues he had insulted.

“…the first thing I would do would be to go to each of those people and apologise to them for my comments,” said Mr Knowles. “That’s the first thing I would do, and I’ll put that on the public record.”

Mr Knowles also shared that he felt ashamed for his behaviour, particularly as he had to explain it to his children. “I’ve had to sit down with my kids and show them those allegations and tell them, ‘This is what’s happened. This is what I’ve done,’ and it was disgusting. It was inappropriate. They were homophobic comments,” said Mr Knowles.

Why the NSW IRC tribunal backs dismissal

NSW IRC Commissioner Janine Webster accepted that Mr Knowles was likely told to “vent up” to cope with his frustrations. However, she said that was no excuse for his behaviour.

“…it is difficult to understand how [Mr Knowles] translated that to mean that it was appropriate to denigrate his colleagues to his manager in emails and text messages,” said Commissioner Webster. Commissioner Webster found that Mr Knowles’ manager had failed to put a stop to his offensive behaviour. She also found that his messages were “evidence of a negative culture and a psychologically unsafe workplace.”

With respect to granting his manager entry to the Elton John concert, Commissioner Webster also found Mr Knowles guilty. She said that the action ran “contrary to the communities’ legitimate expectations of how a person in charge of a public service will discharge their duties.” Ultimately, Commissioner Webster ruled that Mr Knowles’ breaches of the Code of Conduct warranted his dismissal for misconduct.

“… [Mr Knowles] engaged in misconduct in breach of the Code of Conduct in respect of some, but not all, of these allegations,” “I have decided that in the circumstances, the decision to terminate [Mr Knowles’] employment was appropriate.”

Commissioner Webster of the NSW IRC

Is dismissal a certainty if an employee makes homophobic or racist comments?

Not all cases of homophobia in the workplace end with the offending employee being dismissed. This was evident in the 2016 unfair dismissal case – Mt Arthur Coal Pty Ltd v Jodie Goodall. In this case, Mr Jodie Goodall had made a series of homophobic, racist and other offensive comments over a two-way radio.

Let’s look at this unfair dismissal case and see why the Fair Work Commission (FWC) ruled in Mr Goodall’s favor.

Mine worker makes homophobic and racist remarks in the workplace

Mr Goodall commenced employment with Mt Arthur Coal in 2011, but it wasn’t until 2015 that his behaviour saw him run afoul of his employer. Before then, he had a stellar record of behaviour and performance with Mt Arthur Coal.

On the night of 11 November 2015, Mr Goodall worked a 12-hour shift operating heavy machinery at a coal site in NSW. During his shift, he used his employer’s radio system to chat to colleagues for almost two hours. While chatting to his colleagues on this public radio channel, Mr Goodall made a series of highly offensive remarks.

Mr Goodall made homophobic and sexual comments about certain colleagues. This included saying that a co-worker was reading a book about “50 ways to eat c*ck” and that another co-worker would “probably like a good teabagging.”

He also expressed derogatory views about a particular race or religion. Mr Goodall stated that a particular religious group “had 1400 years of bloody inbreeding so they gotta be f**ked up.” He also discussed with a colleague how the Australian government should exterminate this particular religious group by “hiring professional hitmen.” These comments were heard by other employees on the radio system, and Mt Arthur Coal soon launched an investigation. This led to Mr Goodall’s dismissal for serious misconduct. He subsequently filed an unfair dismissal claim with the FWC.

Mine worker has dismissal overturned by FWC

The Fair work accepted that Mr Goodall’s remarks were “inappropriate and in breach of a number of Mt Arthur’s policies.” However, it found that his remarks amounted to simply “banter and chat” with his work colleagues, who were “seeking to be entertaining.” It was also found that Mr Goodall didn’t mean to intentionally bully any of his colleagues. For these reasons, the FWC found that disciplinary action was warranted, however not dismissal.

When it came to Mr Goodall’s remarks about the religious group, the Fair work found that these were the “most serious aspect of the inappropriate comments made by Mr Goodall.” However, because he hadn’t directed these comments to anyone at the mine, they were considered only “mid-range on a scale of seriousness,” rather than on the high range.

The Fair work ultimately found that “Mt Arthur had a valid reason to dismiss Mr Goodall related to his conduct.” However, it also found that the dismissal was harsh because of the personal and economic consequences the dismissal had on Mr Goodall and his dependent children. Ultimately, the Fair work ruled to reinstate Mr Goodall. Mt Arthur Coal subsequently appealed this decision and the case was once again heard by the Fair work. However, the appeal was dismissed.

Conclusion to Tribunal backs dismissal for “rainbow boy” remarks

There is certainly no place for homophobic or racist remarks in the workplace. Toxic workplaces should no longer exist. However, sometimes a dismissal for other kinds of offensive comments may not be warranted. It’s always possible that an employer may use an employee’s comments as an excuse to have them dismissed. Its disappointing but some employees make false allegations against other employees because of their failings in their role and want to deflect blame. Plus there are often many other factors that may deem such a dismissal unfair.

If you have experienced this outcome, A Whole New Approach can help you understand your rights. Our team of experienced workplace relations experts can determine if you are eligible to make an unfair dismissal claim. Potentially receive redress through the Fair work, all redundancy, casual employee rights, workplace harassment enquires

Call us today on 1800 333 666 for a free and confidential conversation.

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Gary Pinchen

Top workplace advisor. Adverse action claims, general protections, unfair dismissal and sexual claims are fair work issues. Call for free, private advice.

unfairdismissalsaustralia.com.au/

Unfair dismissal payout: How much can you receive?

Unfair dismissal payout: How much can you receive?

Receiving an unfair dismissal payout is the ideal result when your employer has treated you unfairly. However, you might be unsure if it is even worth your time pursuing a payout. Also a consideration is the motivation to lodge a claim. It could be about money, reputational damage, principal, revenge, unpaid commissions. This article is about the money and where is your unfair dismissal claim fit in the scheme of the Fair work system

This article is a must-read if you are considering making an unfair dismissal claim. We explain how much you can expect to receive with an unfair dismissal payout. We also clearly outline the eligibility criteria for making a claim with the Fair Work Commission (FWC). And we dispel a few myths related to the costs and processes involved.

Check out other cases (immediately line), read below then you will have great understanding what your payout should be.

We have numerous cases listed under What is my unfair dismissal claim worth, click here

When is a dismissal deemed unfair?

Before we discuss how much you could potentially receive with an unfair dismissal payout, it is important to understand the criteria that the FWC uses to determine if your dismissal was unfair.

An unfair dismissal is where an employee’s dismissal was:

• Harsh, unjust or unreasonable, and
• Was not a case of genuine redundancy, and
• If the employee was employed by a small business, was not consistent with the Small Business Fair Dismissal Code.  

In order to receive an unfair dismissal payout, the above must be true for the employee. To determine if a dismissal was harsh, unjust or unreasonable, the FWC considers a number of criteria. This includes whether there was a valid reason for the dismissal related to the employee’s capacity or conduct. Also, if the employee was notified of that reason and given a chance to respond to it. These are just a few of the criteria, which you can view on the FWC website.

Am I eligible to make an unfair dismissal claim?

In order to potentially receive an unfair dismissal payout, you must first be eligible to make a claim. This means satisfying the following criteria:

• At the time of your dismissal, you had completed at least the minimum employment period with the employer. This is six months or if you worked for a small business (less than 15 employees), 12 months.
  
• Earn less than the high-income threshold, which at the time of writing is $162,000. This figure however changes annually. You can see the latest threshold figure on the FWC website.
  
• If you are a casual employee, you worked on a regular and systemic basis (i.e. you had a recurring roster) before your dismissal. Also, that you had a good reason to believe that this pattern of work would continue.

If you are unsure if you are eligible to make an unfair dismissal claim, A Whole New Approach can help.

Call us today on 1800 333 666 for a free and confidential conversation to understand if you meet the eligibility criteria.

How much does it cost to make an unfair dismissal claim?

There is a widespread misconception that taking legal action is almost always a very expensive endeavor. This can be true when doing so through the court system. However, taking action through the FWC is far more affordable.

If you engage a lawyer or a paid agent (like us at A Whole New Approach), it is not the same as doing so for a legal matter that will be heard in court. Your representation can offer a no-win, no-fee arrangement, which essentially clears you from incurring any costs if your case is unsuccessful.

There is a fee you must pay the FWC when you apply to make an unfair dismissal claim. For 2022-23, the fee is $77.80, however this changes annually every 1 July. You can view the latest fee amount on the FWC website.

It’s important to note that you must also lodge your application within 21 days of your dismissal.

Can I represent myself at the FWC?

You are permitted to represent yourself if your case ends up being heard by the FWC. However, it is strongly advised that you don’t do this. The intricacies of the law mean that most applicants aren’t equipped to successfully argue their case.

It can also be a very intimidating experience to represent yourself. It is especially not advisable if your case brings up certain emotions that may cloud your judgement during a hearing. Representing yourself is the best way to ensure that you won’t receive an unfair dismissal payout.

If you check the Fair work web site most of the successful claims and better payouts are for employees who are represented. Many employees think they have a good understanding of their case and argument. This is until the employer turns up with numerous witnesses, telling a whole host of lies and made up stories. Then what do you do?. The Fair work Commission must rule on the evidence before it, not take a stab at the truth or feel sorry for you.

What happens in an unfair dismissal conciliation?

Mediating a conciliation between you and your employer is the first step the Fair work will take to help resolve your unfair dismissal case. It is organized as soon as your unfair dismissal application is received and generally takes place between two to five weeks later.

According to the FWC, 75 percent of unfair dismissal cases are resolved with conciliation. Conciliation is voluntary and if you choose not to participate in it, your application will proceed as normal. It is conducted by an independent conciliator who leads the discussion to determine the facts of your case and who may be right or wrong.

The aim of a conciliation conference is for the employee and employer to reach a settlement. This is a written legal contract (referred to as a Deed of Release) that the two parties must sign. The settlement could be whatever the parties agree to. This could range from an apology, reinstatement of the employee’s job or an unfair dismissal payout.

A conciliation conference generally lasts for 90 minutes, however in some cases can last for a day or longer. The conference and the outcomes of it are completely private. If you choose not to participate in conciliation, or a settlement isn’t reached during conciliation, your case will proceed to a formal hearing with the FWC.

FWC hearings: What happens when you win your unfair dismissal case?

If the Fair work finds that you were subject to an unfair dismissal, there are generally two outcomes. The Fair work Commission may order your employer to reinstate your employment. This means you will either get your old job back or be appointed to a new job that is similar in terms and conditions. This outcome may also include continuity of service as well as pay or benefits that you lost while you had been dismissed.

The second outcome is for the FWC to order your employer to issue you an unfair dismissal payout.  This payout is compensation for any financial loss you suffered as a result of being dismissed. For instance, the wages you lost during your period of not being at work. An unfair dismissal payout does not include any compensation for shock, distress, hurt or humiliation you suffered due to your dismissal.

It must be noted that an employer is only ordered to provide a payout if reinstatement is not possible. For instance, if the business is no longer operating or the employee can’t work because of illness or injury. Also, if the employer-employee relationship has broken down and therefore they can not work together. Or if it is likely that the employer will dismiss the employee again.

How much is an unfair dismissal payout?

According to the latest figures from the FWC, the median unfair dismissal payout is $8,704. The maximum amount of compensation that you can receive is the lower of the two following amounts:

• Half of your annual wage OR
• The compensation cap. In 2022, this is currently $79,250, however, this amount changes annually. You can view the latest compensation cap figure on the FWC website.

There are however two scenarios in which an employee may have their unfair dismissal payout reduced. This includes if they did not experience any financial loss due to the dismissal. Or if the FWC deems that they deserve a lower payout due to bad behaviour. In other words what did you do to contribute to your dismissal. also the employees length of service plays a role in the Fair work thinking as to award of compensation. Generally the better payouts are to employees with 5 years or more service.

How is the payout calculated?

The Fair work uses what it calls the Sprigg formula to calculate the amount of an unfair dismissal payout. This formula was established during the 1998 unfair dismissal case Sprigg v Paul’s Licensed Festival Supermarket.

The Sprigg formula was part of the legislation that preceded the introduction of the Fair Work Act in 2009. The approach that must be taken when using the Sprigg formula was outlined during the 2013 case Bowden v Ottrey Homes Cobram and District Retirement Villages. Since that case, this approach has been part of the Fair Work Act.

The Sprigg formula requires the Fair work to take several steps in order to calculate an unfair dismissal payout. This includes estimating the amount of pay the employee would have received if they had not been dismissed. It also involves deducting any pay the employee has earned since their dismissal. You can view the full list of steps outlined by the Sprigg formula on the FWC website.

Conclusion

We at A Whole New Approach are experts in handling unfair dismissal claims. In the last two decades, we have handled over 16,000 claims in every Australian state. We have a deep understanding of the processes involved and how to make your claim a success.

It is important to understand that you must file your claim within 21 days of being dismissed. So if you feel you were mistreated by your employer, call us today on 1800 333 666 for a free and confidential conversation. We can help you understand if you are eligible to make an unfair dismissal claim and streamline the process for you. All Fair work matters including, redundancy, sick leave, questions and answers, adverse action claims, call us

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Post dismissal behaviour, click here

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Gary Pinchen

Top workplace advisor. Adverse action claims, general protections, unfair dismissal and sexual claims are fair work issues. Call for free, private advice.

unfairdismissalsaustralia.com.au/