All posts by: Gary Pinchen

About Gary Pinchen

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

Unfair dismissal: Why procedural fairness matters

Unfair-dismissal:-Why-procedural-fairness-matters.-Fairness-can-be-a-balancing-act
Fairness can be a balancing act. Everybody is entitled to a “fair go”. Its important employees know why their sacked, dismissed.

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.
checking-the-fair-work-act-before-dismissing-an-employee
Employer checking the Fair work act. There is so much available material on the internet these days, there is no excuse for taking short cuts. Or the usual statement I did know I had to do this or that as part of a fair process.

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.

boss-going-crazy
Boss going crazy. This is not procedurally fair to find out when happened before dismissing an employee.

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.

Its-not-fair-to-take-away-someone's- income-(dismiss-them)-without- knowing-all-the-facts.
What’s going on? Someone being slow and lazy? Someone burnt the buns? Or there has been a power failure and there’s nothing that can be done. Process is important to find out what’s going on. Its not fair to take away someone’s income (dismiss then) without knowing all the facts.

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.

free-consultation-regarding-your-unfair-dismissal-claim
Free consultation, call us today, explore all your options

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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Work from home – what are my legal rights?

work-from-home-with-children-can- create-a-great-family-atmosphere
Work from home with children. Can have a lot of benefits

Do I Have a Legal Right to Work from Home?

With the Netherlands poised to enact new legislation codifying workers’ right to work from home, it is worth asking whether such a right exists in Australia. The answer is that there is no stand-alone legal right to work from home in Australia. Not as such. However, the Fair Work Act does provide some requirements for employers’ consideration of employee requests for Flexible Working Arrangements. Under certain circumstances and for certain workers, violations of the right to proper consideration of such requests are addressable.

This Article will discuss the extent of Australian law with regard to the right to work from home. The right to have your request for a Flexible Work Arrangement properly considered. It will provide some guidance for next steps, should your rights as an employee in Australia be impinged.

By way of contrast, it will also discuss in detail what is happening with regard to remote work entitlement, exactly, in The Netherlands and in other countries such as the United States. First, however, a basic question.

Why Are Workers Asking for the Right to Work from Home?

The Financial Review reports that working from home has saved the average Australian $10,000. That’s a good reason to ask your employer for the right to work from home. However money is not the only reason. Without a lengthy commute clogging up your schedule, you are able to spend more time with your family. Or engage in non-work hobbies and other pursuits. In other words, working from home increases your productivity.

That’s right: yours, not your employer’s. Remote work also allows workers to search for ideal jobs on a non-local basis. Geography does not need to limit you to working for the three companies who happen to be located in your town. Instead, the remote worker is able to choose from positions nearly anywhere in Australia (or the world) without ever leaving home.

Lack of interpersonal contact means reduced office conflict, further. A diminished need to attend time-wasting office functions—whether a pointless meeting or yet another break room birthday party—boosts employee morale. No one likes those stupid team-building exercises, it turns out. (Shocker!) Finally, while many may view the COVID-19 pandemic as having faded from the headlines, it hasn’t actually gone anywhere. It’s simply safer to work from home. This is true as regards COVID or any other airborne illness.

Indeed.com reports that 58% of Australian employees believe that working from home results in fewer sick days, all around. It’s no surprise, then, as another report indicates, that 57% of Australians would prefer to quit their jobs rather than to give up remote working. Are you one of them? Odds are good that you are.

barrister-working-from-home
Barrister working from home. Some professions that never previously worked from home are now adjusting to it.

The Right to Work from Home in the Netherlands—and Elsewhere

So what does an “official” legal right to work from home actually look like? The Netherlands points the way. And it’s not alone. Currently, Dutch law permits employers to deny workers’ request to work remotely without restriction. However, as noted above, new legislation already approved by the Dutch Parliament (not yet the Dutch Senate, as of this writing) amends the existing Dutch Flexible Working Act of 2015 to accommodate a default right to work from home.

Under the current iteration of the Flexible Working Act, Dutch workers do have the right to request changes to their schedules and, to some extent, the location in which they work. This new amendment goes further to require employers, instead, to consider any request to work not from another corporate office—but from home. Further, employers will be required to provide an “adequate reason” for the denial of the request to work from home.

What will the “adequate” reasons be under the new Dutch legislation? Reports are not yet clear on this point. But employers are required to “carefully consider” a request to work from home. Presumably, this means that a knee-jerk or blanket policy of denying such requests will be actionable in the Netherlands. Likewise, the Irish government also has similar legislation in process. The Irish Right to Request Remote Work Bill 2021 has been published for review prior to enactment.

Employers obligations

The summary located here details employers’ obligations, as well as the grounds for a “reasonable” denial of a request to work from home. In particular, Irish employers will be required to maintain a written work from home policy setting out the mechanisms. Further processes for management of worker requests.

Reasonable grounds for denying work from home requests

Reasonable grounds for denying work from home requests in Ireland will include:

  • The nature of the work is not compatible with remote functioning;
  • Issues reorganising staff to accommodate the request;
  • Possible negative performance or quality impact;
  • Impending structural change;
  • Burden of related costs;
  • Confidentiality or intellectual property protection concerns;
  • Concerns about the proposed workspace on safety or health grounds;
  • Internet connectivity issues with the proposed remote location;
  • Excessive distance involved;
  • Conflicts with collective agreements;
  • Recent disciplinary issues as regards the requesting employee.

These are pretty broad grounds for denial. One can imagine nearly any employer with a halfway clever human resources department managing to shoehorn almost any employee’s request into one or more of these bases. Nevertheless, the Irish legislation formalizes the right to work from home, at least. Let the litigation flow from that starting point. Slovakia, Argentina, Chile, and Colombia have also enacted laws to permit remote work and working from home, to varying extents.

The Right to Work from Home in the  United States

Like Australia, the U.S. has no provision in place to specifically create a right to work from home. In the U.S., it is entirely within an employer’s discretion whether or not an employee is permitted to remotely or not. Some ancillary statutes, such as the Family Medical Leave Act (FMLA) require employers to accommodate the disabilities or medical needs of employees afflicted with certain medical conditions.

This statute requires that employers provide a physical work environment for those employees that ensures the ability to work on an even footing with other employees. It prohibits workplace and employment discrimination against those with certain medical conditions, among other things. Any employee whose condition does not sweep them into the FMLA’s coverage is not entitled to work remotely in the U.S.

Unless a collective bargaining agreement or some other contractual agreement provides otherwise, there is no other recourse other than hat-in-hand asking for remote work in the U.S. Australia’s legal framework is somewhat more amenable to work from home requests. But only just.

working from home can-be-=difficult
Working from home can be difficult.

The Current Legal Work from Home Framework in Australia

Similarly, there is no right to work from home in Australia. Not really. What we have is the right to request a “flexible working arrangement.” What’s the difference between this and the right to work from home as propositioned by The Netherlands and Ireland? Alot.

The Australian right to a flexible work arrangement is simply the right to ask your boss for something other than the requirement that you sit in a cubicle for 40 full hours per week while working. And it only applies if you’re a caregiver to someone in need. If you’re a single guy who simply works better and more efficiently without Linda from accounting hanging around your desk going on about Downton Abbey all the time, too bad.

You have no right to either work from home or to a flexible working arrangement under Australian law. First, however, what is the Australian Flexible Work Arrangement, exactly?

The Right to Request a Flexible Working Arrangement in Australia

The right to request a flexible work arrangement in Australia arises from statute. That is, it is written into law. That law is the Fair Work Act 2009 (FWA). Section 65 of the FWA provides that employees in Australia may request a flexible work arrangement of certain sorts—and if they are employees of certain sorts.

Who May Request a Flexible Working Arrangement?

Specifically, the FWA allows an employee in an Australian workplace to request a flexible work arrangement if that employee is:

  • A parent or otherwise cares for a school-aged or younger child;
  • A “carer” as defined by the Carer Recognition Act 2010;
  • Disabled;
  • 55 years of age or older;
  • Experiencing family violence;
  • Providing care or support to a member of the employee’s immediate family.

Regarding the second bullet, above, the Carer Recognition Act 2010 defines a “carer” as an individual who provides personal care, support, and assistance to another individual in need because that individual:

  • Is disabled;
  • Has a medical condition (including terminal or chronic illnesses);
  • Is frail or aged.

A “carer” is not, under that statute, someone who:

  • Provides service under a contract;
  • Provides service as part of a voluntary or charitable effort;
  • Provides service as required by an educational or training course.

A person is not automatically a “carer” simply because he or she is the spouse, parent, child, or other relative of an individual or simply because he or she lives with someone who requires care. You have to actually be the one providing the care, in other words. (Nice try, Uncle Charlie!) The Fair work also clarifies that an employee who is a parent or cares for a young child or is returning to work after birth or the adoption of a child may request the flexibility of working part-time.

However, no employee can request a flexible working arrangement unless:

  • The employee has worked for at least 12 months continuously; or
  • For casual employees, the completion of at least 12 months of continuous service along with the reasonable expectation that the casual employee will continue the employment on a regular and systematic basis.

In other words, you can’t start a job on Day 1 and, then, on Day 2, request a flexible working arrangement. What is a “Casual Employee” under Australian law, generally? You are a “casual employee” if your employer has made no advance commitment to your employment on any fixed or regular basis and you have accepted the employment with that understanding.

If you have the right to accept or reject the work of your employer, you are a casual employee. If you work only when needed, you are a casual employee, also. Likewise, if your job description specifically states that you are a casual employee or if you are paid an hourly wage specific to casual employees, this will also be the case.

In other words, if you’re a casual employee, you will have to demonstrate some level of intent on your own and your employer’s behalf that you will continue onward from the date of the request. If you can’t do that (and how easy is it for you to demonstrate an employer’s intent?), you will have very limited rights to a flexible working arrangement under the FWA.

work at home-careful-you-don't-end-up-dismissed
Work at home. Careful you don’t end up dismissed. Or forced to return to the workplace.

What Does a Flexible Working Arrangement Allow?

A flexible working arrangement under Australian law allows for a variety of specific adjustments to an employee’s work routine or to the structure of the position itself. What form or shape the flexible working arrangement can take is up to the discretion and mutual agreement between you and your employer.

As to what “flexibility” means, the Fair work simply states that an employee can request a change to his or her working arrangements relating to the circumstances requiring the change. However, the statute does provide a few examples of what a flexible working arrangement can include. These examples include changes in hours of work, patterns of work, and locations of work. Would this imply remote work is possible? Sure. If your employer agrees that it does.

Otherwise, a flexible work arrangement as conceived by the Fair work might include the following:

  • Flexible start or finish times;
  • Compressing hours (to work 40 hours over 4 days rather than 5, etc.);
  • Part-time work;
  • Casual work;
  • Job sharing or division of tasks between employees;
  • Flexible rostering;
  • Extra paid leave or unpaid leave;
  • Flex-time allowance;
  • Increasing or decreasing work hours in a graduated fashion.

Asking is a right

For example, if you are a “carer” as defined by law and do need to be on hand to watch over a disabled, elderly family member, working from home rather than a cubicle would certainly constitute a flexible work arrangement that is tailored to your needs. However, this does not mean that you have a legal right to work from home. You can ask. That’s it.

How to Request a Flexible Working Arrangement

So what is the best way to ask? Under the Fair work, employers should maintain a written policy regarding requests for flexible working arrangements that should comply with Australian law. The Fair work requires the following, however. The request must be made in writing. That written request must include the details of the change being requested. It must include the specific reasons for the change.

In other words, you must ask for a specific aspect of flexibility. It is not up to your employer to suggest one to you. What is going on, why is it happening, are you a “carer” within the legal definition of the word, and what is it that you want, exactly? This is what you must include in your written request.

What Happens After a Flexible Work Arrangement Request?

After you submit a written request to your employer, your employer is required to provide a written response to you within 21 days. That response must clearly state whether your request is granted or refused. Your employer can only refuse the request on “reasonable business grounds.” What are these reasonable business grounds, exactly?

The FWA describes the following grounds as reasonable, in example:

  • The cost of the proposed arrangement;
  • The employer lacks the capacity to accommodate the proposed arrangement;
  • The impracticality of the proposed arrangement in terms of any need to change the arrangements offered to other employees or to the need to recruit new employees;
  • The proposed arrangement would result in a loss of productivity;
  • The proposed arrangement would negatively impact customer service.

This is, the statute notes, not an inclusive list. That is, an employer may have other reasonable reasons to refuse the request. However, as noted, if the employer does refuse the request, the written response must include the specific details of the reasons for the refusal.

Clearly-its-can-be-better-for-your-mental-health
Clearly its can be better for your mental health working from home. But this does not apply to everybody. you cannot be dismissed for requesting working from home. Its a workplace right.

What to Do If Your Right to a Flexible Remote Working Arrangement Is Violated

If your employer unreasonably refuses your request for a flexible working arrangement, you have the right to take action. If an employer’s refusal of your request is unreasonable, you can file a claim with the Fair Work Commission. The Fair Work Commission may, preliminarily, request that your employer attend a conference to facilitate some resolution. Failing your employer’s agreement to sit down and talk, or failing a resolution, further steps may be taken to order a remedy.

If your employer is found to have unreasonably denied your request or denied it for some discriminatory reason, it can be ordered to pay a penalty. Employers can be ordered to pay:

  • $13,200 if individual employers, or
  • $66,600 if a company.

Long story short, the right to request a flexible work arrangement in Australia has teeth. However, the right of employers to refuse such requests is very broad, leaving a lot of space for employers to claim that customer service or productivity will suffer if the request is granted. Proving that these claims are false, discriminatory in essence, or rooted in some level of bad faith will be difficult to prove given the  FWA’s broad language “not intended to limit” employers’ “reasonable grounds.”

Thus, your first call when faced with discrimination, unfair dismissal, allegations that your position is suddenly redundant, or a relegation to (unasked for) casual work status may need to be to an experienced employment attorney.

Will Australia Ever Allow a Right to Work from Home?

In the wake of the COVID-19 pandemic, can Australia do better? Should it? That second question is easy. Yes, it should. Given the advantages of remote work for workers as well as the extent to which employers also benefit from remote work environments, the Australian legislature should follow the example set by The Netherlands and Ireland to draft into law a remote work entitlement.

The only parties who don’t benefit are commercial landlords who rent office space to companies on a square meter basis. The financial bottom line of these landlords should not drive Australian employment and, frankly, Australian human rights law. More and more Australians want remote work capability without the need to request—and have refused—the accommodation.

71% of Australians who are back in the office full-time want to work at least 1 day from home. More than 50% of those workers want more than one. More than 50% of employers agree that workers can be just as productive at home as in the office, furthermore. Australian Bureau of Statistic Chief David Gruen agrees that working from home is here to stay, The Australian Financial Review also reports. More than 40% of all Australian workers are, indeed, currently working from home, the Bureau of Statistics reported.

What does this mean?

It means that the tide is on the side of those pushing for remote work entitlement. Although the influence of the less-than-50% of Australian employers still stuck in the 20th Century remains great upon the Australian Parliament. A change will eventually come. However, for now, the right to request a flexible work arrangement that includes the ability to work from home remains your best shot for remote function if you don’t already have it.

some-employees-don't-get-out-of-bed
Some employees don’t get out of bed. Work from the bed or lounge all day. This can be a breach of OH&S rules. It can be a bad look, some dismissals have occurred because of this approach. Be careful

Conclusion to Work from home – what are my legal rights?

A Whole New Approach Pty Ltd. is dedicated to representing employees only in unfair dismissal, harassment, and other workplace disputes. We are the workplace advisors that will help you respond to a flexible work arrangement refusal.

We stand with you as warriors. Against discrimination to help you to achieve the best outcome possible in your particular circumstances. If you feel that you have been discriminated against, harassed, or have been unfairly dismissed, contact us now to schedule your initial consultation, and let’s continue to move the history of Australian employment law forward—together.

Call 1800 333 666 anytime

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Bullying when working from home click here

Dismissed for providing good customer service

Dismissed-for-providing-good- customer-service.-customer-service-people-are-not-robots
Customer service employees are not robots. It should be about positive customer experience.

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.

There-are-proper-ways-to-manage- people
There are proper ways to manage people. Not simply dismiss then

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.”
working-together-is-important
Working together is important

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”.

Good-customer-service-should-be-rewarded.-Not-punished-by-dismissal
Customer service is not about the KPt’s. Good customer service should be rewarded. Not punished by dismissal

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.

Clock-watching-and-customer-service-is-about-balance
Clock watching and customer service is about balance

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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Dismissed for omitting smiley emoji

unfairly dismissed over smiley emoji
Unfairly dismissed over smiley emoji. Find out what happened.

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.”

Unhappy-ending-for-the-employee
Unhappy ending for the employee. Dismissed for omitting smiley emoji is now in the new era of you cannot say anything to each other in the workplace in case you offend somebody.

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.

dismissed-and-out-the-door
Dismissed and out the door. Certainly sounds like a toxic workplace

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.

dismissed-waiting-to-leave

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.

getting-compensation-for-unfair-dismissal
Getting compensation for unfair dismissal. dismissed for omitting smiley emoji is ridiculous.

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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Rights of casual employees

Casual-employee-dismissed,-asking-why.-Casual-employees-have-certain- rights.
Casual employee is dismissed, asking why. Casual employees have certain rights, but not totally the same as a permanent employee.

Rights of casual employees

Casual employees make up a significant proportion of the Australian workforce. In 2018, 25% of the Australian workforce were casual employees, with this remaining consistent since. Many casual employees believe that due to the casual nature of their employment, they do not have as many employment rights. Employers often take advantage of the fact that casual employees will not enforce their Rights as of a casual employee. Many employees do not pursue an unfair dismissal claim thinking they simply don’t stand a chance because they are employed on a casual basis.

This is worrying, as casual employees are disproportionately vulnerable. For example, they tend to be younger, with little savings. Casual employment is also more common in lower-paid industries such as hospitality, retail and aged care. A higher percentage of casuals have English as their second language

However, there are several casual employment rights under the Fair Work Act 2009. It is unlawful for an employer to prevent a casual employee from exercising these or to treat them poorly if they do. Legal recourse is available if this does occur.

This article will outline some casual employment rights below.

What is a Casual Employee under the Fair work Act?

Meaning of casual employee

             (1)  A person is a casual employee of an employer if:

                     (a)  an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

                     (b)  the person accepts the offer on that basis; and

                     (c)  the person is an employee as a result of that acceptance.

             (2)  For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

                     (a)  whether the employer can elect to offer work and whether the person can elect to accept or reject work;

                     (b)  whether the person will work as required according to the needs of the employer;

                     (c)  whether the employment is described as casual employment;

                     (d)  whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note:          Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

             (3)  To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

             (4)  To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

             (5)  A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

                     (a)  the employee‘s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

                     (b)  the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

FAIR WORK ACT 2009 – SECT 15A

To be clear casual employment is defined under the Fair Work Act as being where:

  • An offer of employment is made
  • The offer is made on the basis that the employer makes no firm advance commitment to continuing or indefinite employment. (not on rosters as an example, daily hire)
  • The employee accepts the offer on this basis.

An employee may have a regular pattern of hours. This does not mean there is a firm advance commitment to continuing or indefinite employment. There are only two ways to become a permanent employee. First, converting casual employment to permanent employment. Second, accepting a different offer of employment.

Rights-of-casual-employees.-Casuals-are-subjected-to-a-more-toxic-workplace-culture.
Casuals are subjected to a more toxic workplace culture. An example of this is workers compensation claims are higher amongst casual employees than permanent employees. They don’t get the same OH&S training. Employers don’t put the same effort in as the thinking is casuals are only there on a temporary basis.

Converting Casual Employment

One of the casual employment rights is to have causal employment converted to permanent employment. An employer MUST offer to convert casual employment to permanent employment where the employee has been employed for 12 months and during the last six months, the employee has worked a regular pattern of hours on an ongoing basis.

Whether the offer is for full-time or part-time employment will depend on the regular pattern of hours.

Leave

Casual employees are not entitled to paid leave. However, casual employment rights include requesting:

  • 2 days unpaid carer’s leave
  • 2 days unpaid compassionate leave
  • 5 days family and domestic violence leave
  • Reasonable time for community service leave (e.g. jury duty)

A casual employee must tell their employer as soon as possible that they plan to take leave, and how much leave is being taken. An employer is allowed to ask for evidence in relation to this leave, which the casual employee must provide.

Maximum Weekly Hours

While casual employment hours might not be fixed, employers must not take advantage of this. One of the casual employment rights is to work no more than 38 per week, where this is reasonable. This amount includes unpaid leave.

Whether working above 38 hours is unreasonable will depend on a variety of factors, such as:

  • Risk to health and safety
  • The employee’s personal circumstances
  • The employer’s needs
  • The usual trends of work in the industry.

If it is unreasonable to work more than this amount, a casual employee has the right to refuse to do so.

employee-treated-like-school-children
Casual employees employee treated like school children. Employers don’t want to invest in training, skilling casual employees. Easier to yell, abuse, mistreat casual employees , knowing in many cases they have limited rights.

Flexible Working Arrangements

Casual employment rights include being able to request flexible working arrangements. These requests can only be made in certain circumstances. Thus far, COVID-19-related excuses are not mentioned in the Fair Work Act. For a casual employee to make a request for flexible working arrangements, they must have been employed for 12 months. They must also reasonably expect to continue regular and systematic employment.

The casual employee must also have one of the following apply:

  • They are a parent of a child of school age or younger
  • They are a carer
  • They have a disability
  • They are 55 years of age or older
  • They are experiencing family violence
  • They provide care to someone in their household who is experiencing family violence

A casual employee can exercise these casual employment rights by making a request in writing which details why the request is being made.

Working on public holidays

One of the general casual employment rights is to refuse to work on a public holiday. This is subject to a reasonable request by an employer.

A request will be reasonable depending on various factors, including:

  • The nature of the employment
  • The employee’s personal circumstances
  • Whether the employee is entitled to additional remuneration
  • The amount of notice given

If the public holiday falls on a day which the casual employee usually works, their casual employment rights include being paid for their ordinary hours of work that day.

Letter-of-termination.-Been-dismissed
Been dismissed, letter of termination. Many employers just reduce your hours, hoping you just leave. Or simply forget about you. Your sitting at home wanting for work hours that are never going to eventuate.

Notice of Termination

A casual employee has casual employment rights regarding termination and redundancy pay. If a casual employee’s employment is terminated, they have the right to be given or paid notice. This depends on the length of service. For example, if the employee has worked one year, the notice period is one week.

If a casual employee has no right to be paid redundancy pay. (unless there is a industrial instrument or award that indicates redundancy is paid to casuals.

Legal Action Against Employers

It is a common misconception that casual employees have no way to enforce their casual employment rights. This is not the case. There are several avenues available to casual employees who have been treated unlawfully. These include unfair dismissal and general protections applications in the Fair Work Commission, and discrimination claims.

A casual employee can bring an unfair dismissal claim against their employer if they have worked for their employer for 6 months (or 12 months for a small business). This is providing the work is on a regular and systematic basis. Rosters, same days every week, guaranteed hours over the week. There is no one rule as to how this is measured.

The casual employee must prove the dismissal was harsh, unjust, or unreasonable. Alternatively, a casual employee can make general protections claim. A benefit is that there is no minimum period of employment.

Excising a right (adverse action)

General protections claims require proving that an employer took adverse action against an employee for exercising a workplace right. Workplace rights include the casual employment rights listed above. What is the most common ground is a employee has complained to the company about something legitimate and was dismissed for complaining. (an obvious example is to complain about an aspect of safety. Its clearly going to cost the company money to rectify the issue so they dismiss the employee who complained the company thinking the problem has now gone away.

If a casual employee experienced discrimination based on sex, race, disability, age and so forth, they can also bring an anti-discrimination claim in the relevant human rights commission. Again, there is no minimum employment period for this.

dismissed-and-how-you-feel
Many employers simply don’t want to hear casual workers concerns. They are not part of the permanent work force. Despite some casual workers having been at the company for many years.

Conclusion to Rights of casual employees

To wrap up, casual employees should be aware of their casual employment rights. This article has provided an overview of some of these. If an employer refuses to respect these rights, legal action can protect casual employees. This is especially important as casual employment remains a common type of employment. A lot of people like the ability to be casually employed, but everybody wants to be treated with respect. Not go to work in a toxic workplace.

What has slowly happened in Australian workplaces over the last 30 years is to now have different classes of employees, with different pay grades, rights and conditions for in many many cases exactly the same work.

  1. Permanent employees
  2. Casual employees
  3. Contractor’s or labor hire employees.

Companies clearly in many cases have a legitimate need for a flexible, dynamic workforce. They want the ability to respond to company needs as quickly as possible. Industry in Australia is struggling to compete with overseas companies. But lets be honest many companies “game” the system. At least be aware of the rights you have available to you.

Casual worker rights issues, abandonment of employment, adverse action, workplace harassment, call us for free confidential advice. on 1800 333 666

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Dismissed for expressing personal views

Dismissed-for-expressing-personal- views.-casual-conversation-can-lead-to-dismissal
What can start as a casual conversation, can get out of hand. Nobody backs down. In turn can lead to someone’s dismissal.

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.”

watch-what-you-say.-Don't-end-up-dismissed
Watch what you say. Its not that hard to offend somebody these days. Don’t end up dismissed over what was originally a minor issue.

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.”.

Everybody-wants-a-say.-You-are-entitled-to-your-views.-Just-be-careful- how,-when-and-what-you-express
Everybody wants a say. You are entitled to your views. Just be careful how, when and what you express.

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.

Meeting-on-zoom.-Employees-are-express-stronger-views-because-its-not-in-person
Meeting on zoom Employees are expressing stronger views because its not in person.

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.

Once-you-have-had-your-say,-you-cannot-take-it-back.-Get-help
Once you have had your say, you cannot take it back. Facing dismissal? workplace investigation?. Not sure where you stand, get advice.

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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Australia’s worse employers

Australia's-worse-employers-aged-care-worker
Clearly there are good and bad facilities. The same with employees, some are caring, some don’t care, its an income, it’s a pathway into Australia. These employees need to be dismissed. but who are they replaced with?. We all agree that standards have to improve.

Australia’s worse employers

The Aged Care Sector has been under scrutiny in recent times following the Royal Commission into Aged Care Quality and Safety (‘Royal Commission’) and disproportionate number of COVID-19 outbreaks in aged care facilities. While much of the focus has been on the neglect and abuse of residents in aged care facilities, it is necessary to consider the treatment of employees in aged care facilities. Aged care facilities cannot properly care for residents unless their employees are given the resources to do so. The age care industry certainly has some of Australia’s worse employers. We we many complains about this facilities being toxic workplaces.

Evidence from the Royal Commission and other sources is that employees in the aged-care sector face many issues in their working conditions. This article will outline some of these issues and highlight how they are so severe that it is reasonable to question whether aged care facilities are one of the worst employers in Australia.

Importance of aged care employees

The aged care sector will only become increasingly important as Australia’s population ages. According to the Royal Commission, the number of Australians aged 85 years and over is projected to increase from 515 700 in 2018-9 to more than 1.5 million in 2058.[1]

This will clearly create increased demand for aged care services. However, an issue is whether there is adequate supply of labor to meet this demand. According to the Royal Commission, there were 4.2 working aged people per Australian aged over 65 in 2019. By 2058, this will decrease to 3.1.[2]

Therefore, to meet the increasing demand for aged care services and employees, it is vital that the conditions for employees in the aged care sector are not only adequate but incentivize people to work in this industry. Currently though, the conditions in the aged-care sector make it one of the worst employers in Australia. This needs to change. Many employees that should be dismissed are kept on because there is none else to replace them.

Australia's-worse-employers.-aged-care-are-increasingly-becoming-foreign-owned
Aged care facilities are increasingly becoming foreign owned. We are losing the ability to take care of our own people. Standards need to be enforced to reduce toxic workplaces and toxic employees need to be dismissed.

Understaffing

Understaffing is one of the key issues leading to inadequate provision of aged-care services. The Royal Commission found that 57.6% of aged care facilities are understaffed.[3] This is also one of the reasons why aged-care facilities are arguably one of the worst employers in Australia.

Aged care employees have described how understaffing means they are given impossible workloads. For example, one employee says she and one other nurse oversaw 72 residents.[4] This results in employees being forced to cut corners. For example, rather than providing residents with a shower, simply spraying them with deodorant. Or emotional support for residents would have to be sacrificed.[5]

These employees have also described how, when they complain to management about staffing problems, this is ignored. Alternatively, they are told it was their fault for ‘poor time management’.[6] This is concerning, as it is a workplace right for employees to complain and have their complaints addressed. Of course when there are issues, audits, Dept of Aged Care get involved its the employees fault and in turn are dismissed when its convenient or someone has to be “thrown under the bus”.

Remuneration

The second reason why aged care facilities are one of the worst employers is the low remuneration of aged-care employees. The Royal Commission also found that compared to other industries, aged-care employees are disproportionately remunerated. This is even though aged-care employees typically have TAFE or university qualifications.

One aged care employee from an ABC Four Corners Report described how her ‘young granddaughter was making more than [me] at Safeway’.[7] A survey also found that 75% of aged care employees in 2019 were required to start early or stay late to finish work, without being remunerated. [8]

Several reasons were given for inadequate remuneration of aged care employees in the Royal Commission. First, aged care providers are constrained by the funding they receive from the Australian Government. However, there is evidence that even where funding has increased, employees have not received the benefits.[9]

The Royal Commission also found that the enterprise bargaining system in the aged-care industry is ineffective. Employees are reluctant to strike due to the impact on aged care residents and loss of their already low income.[10] Second, the awards which cover aged care are close to minimum wage. The Aged Care Award 2010 for example, is $2.09 an hour more than the National Minimum Wage.[11] This is despite aged care employees having to engage in physically and emotionally demanding work.

Low remuneration exacerbates the problem of understaffing. According to a 2016 National Aged Care Workforce Census and Survey, low pay was one of the most common reasons aged care employees resigned.[12]

better-conditions-in-aged-care-will-attract-more-committed-employees
Better conditions in aged care will attract more committed employees. Poor performing employees can be dismissed or warned to lift their game.

Hours

The third reason aged care facilities are one of the worst employers is the poor working hours. According to a 2019 survey of Victorian aged care employees, 42.6% had their hours reduced multiple times in the last year.[13] This is partly a consequence of many aged care employees working on a casual or contract basis.[14]

This is despite many aged-care employees wanting increased hours. Concerningly, this has impacted the broader community. One of the reasons for the COVID-19 outbreak in aged care homes was because low hours meant aged care employees were required to work multiple jobs. This increased the transmission of COVID-19 between workplaces.[15]

Risk to Health and Safety

The fourth reason aged care facilities are one of the worst employers is the disproportionate risk to health and safety they are subject to. First, aged care workers are at risk of physical assault by aged care residents. According to the Royal Commission, there is a ‘daily risk of assault’.[16]

Second, the physical nature of the work can result in physical injury. One aged care employee said that when she started the job, she was told that she should quick unless she wanted to suffer from ‘back problems’.[17]Third, aged care employees suffered from disproportionately high contraction of COVID-19 during the pandemic.

In one case, WorkSafe found that Heritage Care Pty Ltd did not adequately train staff in COVID-19 procedures. This resulted in 89 residents and 65 staff contracting COVID-19. Shockingly, 34 of these residents died as a result.[18] Heritage Care Pty Ltd was charged with breaching the Occupational Health and Safety Act. Given the COVID-19 outbreaks in aged-care facilities, it is unlikely to be the only aged-care facility who has breached health and safety laws.

The lack of adequate measures to protect the health and safety of aged care employees could be another reason why people are deterred from entering this industry.

most-staff-are-caring
Most staff are caring. They should be praised. Not bullied, subjected to toxic conditions, threatened with dismissal.

Moving forward

There are currently several reforms under way which hopefully will improve the conditions for employees in the aged care sector. There is currently a case in the Fair Work Commission (the Work value case – Aged care industry) which seeks to increase the minimum wages for aged care employees. A decision is yet to be reached.

The Australian Government is also providing increased funding to aged care providers. Lastly, the Aged Care Act is being rewritten and will be implemented in 2023. It promises to improve the conditions in the aged care industry. In the meantime, aged care employees should understand their workplace rights, which includes the right to complain about their working conditions. It is unlawful for aged care employees to suffer adverse action if they exercise such rights.

Conclusion to Australia’s worse employers

If your a victim of abuse in the age care system you welcome to call or mail us. If you have been unfair dismissed, subject to a workplace investigation that appears to be unfairly targeting you. Call us now for free advice.

Any questions regarding “Australia’s worse employers give us a call. We are A Whole New Approach P/L. We are not employment lawyers, or a government agency, we are independent workplace advisors and commentators. Acknowledged leaders in advocacy work, representation and research. Experts on all matters relating to the workplace.

Call 1800 333 666

Any Fair work Australia and Fair work Commission matters, termination of employment, including being sacked (dismissed), general protections, workplace investigations. All workers rights, employment rights, casual employee issues in he workplace issues, probation period issues, forced to resign, we are happy to hear from you. We work in all states, including Victoria, NSW, QLD, Tas, SA, WA, NT.

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Citations for Australia’s worse employers

[1] Royal Commission into Aged Care Quality and Safety (Final Report: Executive Summary, 1 March 2021) vol 1, 61.

[2] Ibid 62.

[3] Royal Commission into Aged Care Quality and Safety (Final Report: Care, Dignity and Respect, 1 March 2021) vol 2, 211.

[4] These People Are Speaking Out About What It’s Like to Work in Aged Care Across Australia’, ABC (Web Page) <https://www.abc.net.au/interactives/agedcare/>.

[5] Ibid.

[6] Ibid.

[7] ‘These People Are Speaking Out About What It’s Like to Work in Aged Care Across Australia’, ABC (Web Page) <https://www.abc.net.au/interactives/agedcare/>.

[8] Royal Commission into Aged Care Quality and Safety (Final Report: Care, Dignity and Respect, 1 March 2021) vol 4B, 506.

[9] Royal Commission into Aged Care Quality and Safety (Final Report: Care, Dignity and Respect, 1 March 2021) vol 4B 529.

[10] Ibid.

[11] Ibid.

[12] Royal Commission into Aged Care Quality and Safety (Final Report: Care, Dignity and Respect, 1 March 2021) vol 2, 213.

[13] Royal Commission into Aged Care Quality and Safety (Final Report: Care, Dignity and Respect, 1 March 2021) vol 4B, 506.

[14] Ibid 214.

[15] Sandy Cheu, ‘Senate Looks into Aged Care Job Security’ Australian Ageing Agenda (Web Page, April 20 2021) <https://www.australianageingagenda.com.au/clinical/senate-looks-into-aged-care-job-security/>.

[16] Royal Commission into Aged Care Quality and Safety (Final Report: Care, Dignity and Respect, 1 March 2021) vol 4B, 532.

[17] Ibid 533.

[18] Australian Associated Press, ‘Melbourne Aged-Care Provider Charged by Workplace Safety Watchdog After Covid Outbreak’ The Guardian (Web Page, 11 July 2022) < https://www.theguardian.com/australia-news/2022/jul/11/melbourne-aged-care-provider-charged-by-workplace-safety-watchdog-after-covid-outbreak>.

Tribunal backs dismissal for “rainbow boy” remarks

Tribunal-backs-dismissal-for-“rainbow boy”-remarks.-We-should-all-be-respected-not-dismissed
We should all be respected, not dismissed, be discriminated against, subjected to remarks because of who we are. Its a form of hate speech. All employees are entitled to be protected by the employer. You have rights, its how you excise them is the key.

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.

It-can-be-too-late-to-say-sorry
It can be too late to say sorry. Once its said you cannot take it back. This is particularly the case with social media. Enormous amount of dismissal claims and termination actions is over behaviors that should not occur.

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.

resignation-and-out-of-here
Resignation and out of here. Employer refused to get involved over discriminately comments. Many employers lose quality employees because they refuse to protect them.

“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.

Employee-is-dismissed.-Now-realises- what-he-said-was-wrong-and-offensive.-Its-too-late
Employee is dismissed. Now realises what he said was wrong and offensive. Its too late

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.

Tribunal-backs-dismissal-for-“rainbow- boy”-remarks.-Workplace-culture-is-important
Employees want to work for quality organisations. Toxic workplaces are a thing of the past. Companies are judged not so much that they get a complaint but how they deal with it. Everybody is entitled to a fair go. A big problem is employees are judged on the decision makers moral beliefs, not what the company policies state and compliance with the Fair work Act and various discrimination laws.

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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Unfair dismissal payout: How much can you receive?

Unfair-dismissal-payout:-How-much-can-you-receive?
Getting compensation for lost wages and the unfair dismissal claim

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.

unfair-dismissal-payouts-vary
Unfair dismissal payouts vary from just wanting the chance to resign to $50,000

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.

A-lot-of-employees-pursue-claims-for-the-money
A lot of employees pursue claims for the money. Others pursue them as a matter of principal

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.

Unfair-dismissals-on-average-is-not-big -money-jurisdiction
Unfair dismissals on average is not big money jurisdiction. Careful what your legal or presentation fees are. You might be tipping money down the drain.

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:

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.

A-lot-of-employees-see-their-relationship-with-the-employer-as-a-close-relationship
A lot of employees see their relationship with the employer as a close relationship. So when they are terminated they are devastated. They want revenge, want to make a point. Its not about the money, principle and justice matters.

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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Resignation letter Issues

Resignation-letter-issues.-Forced-to-resign
Exiting the company can be complicated and stressful. I think i was really dismissed. What do i do next. I need to get a job. It can be not the end of an issue but just the beginning.

Resignation letter Issues

Resigning may seem like a straightforward process, but under the Fair Work Act, there are certain rules surrounding resignation. There are a variety of reasons why an employee might want to resign. Ideally, an employee will resign while still having a positive relationship with their employer but perhaps having found alternative employment. “Resignation letter issues” one of the most googled terms around workplace matters.

The situation becomes more complex when the employment relationship has broken down. (referred to as trust and confidence) In such circumstances, it is important that the resignation letter is effective and cannot be later used against the employee. It is also important that an employee is not forced to hand in a resignation letter by their employer. Additionally, that handing in a resignation letter does not interfere with any later claims against the employer.

This article will outline when and how to hand in your resignation letter. It will also explain how to ensure that your resignation letter does not interfere with potential unfair dismissal claims.

everybody-getting-in-your-ear-about-what-to-do.
Everybody getting in your ear about what to do. Should I resign, or wait until I’m dismissed. The uncertainly is destroying me.

When Should Employees Provide Their Resignation Letter?

When an employee hands in a resignation letter, they are essentially providing notice to their employer that they are resigning after the notice period. There are specified notice periods which provide the time between handing in the resignation letter and ending employment. It is crucial that the employee checks their award or enterprise agreement for this. Employees should hand in their resignation letter when they want the notice period to commence.

If the employee does not have an award or enterprise agreement, their notice period is determined by their employment contract. If there is no employment contract, the employee must provide a ‘reasonable’ period of notice in their resignation letter. People can also resign immediately if their employer agrees to pay out the notice period.

Employees should note that if they do not give the minimum notice period, the employer can deduct money from their wages. Everybody should check their award, enterprise agreement or employment contract for the circumstances in which this can be done. However, it is also important for employees to stand their ground. Although they can question it, the employer cannot reject the resignation letter. Provided the notice period is correct, the employer must accept the resignation letter. (we don’t have slavery in this country).

The-employer-has-an-obligation-to- provides-for-happy-workplaces
The employer has an obligation to provide for happy workplaces. Toxic workplaces and ruling by fear should be a thing of the past.

What Should Employees Write in a Resignation Letter?

Writing a resignation letter can be intimidating. Luckily, there is no specific format that a resignation letter needs to take under law. However, writing a professional resignation letter is still important to maintain a positive relationship with your employer. It may also be important for your own records.

Some important things to include in your resignation letter include:

  • The date
  • The person who it is addressed to. Often this is someone from the HR Department.
  • A brief statement that you intend to resign
  • The role that you are resigning from
  • The date that your notice period ends
  • You may also wish to thank your employer for your employment if you are genuinely grateful.

The Fair Work Ombudsman website has a useful tool to generate a resignation letter for you. In some circumstances, an employer might also provide a resignation letter which an employee can sign. However, where a letter is prepared by an employer, the employee should read the letter carefully to ensure that their notice period is correct and the resignation letter otherwise reflects the manner in which they wish to resign.

Well constructed letter is important

If an employee had a poor relationship with their employer, it may be tempting to rant about the negative aspects of the workplace in the resignation letter, or to deliver the letter in a humorous or sarcastic manner such as a ‘sorry for your loss’ card. Employees should remember that if they want to take legal action against an ex-employer, for example, with a discrimination claim, an unprofessional resignation letter may reflect poorly on them.

In such claims, it is common for employers to counter-argue (whether true or not) that the employee was a poor performer. They may also argue the employee did not have positive relationships with other employees. An employee should not provide a letter of resignation that supports such arguments.

Resignation-letter-can-take-many- forms
Resignation-letter-can-take-many- forms

Forced Resignation

One issue is if an ex-employee wishes to an unfair dismissal claim against their employer by arguing they were forced to resign. The Fair Work Commission has set a high bar for what constitutes forced resignation. It must be the case that the employee had ‘no real choice’ but to resign.

The Fair Work Commission found in Bupa Aged Care Pty Ltd v Shahin Tavassoli that an employer should have clarified that employee’s hastily written letter of resignation, made in circumstances where she was distressed, really indicated an intent to resign. [1] Similarly, in Marks v Melbourne Health, the employee sent a letter of resignation while under treatment for mental illness. The Fair Work Commission stated that this should not have been relied upon as a valid letter of resignation.[2]

In these cases, the fact that the letter of resignation was sent while the employee was under pressure meant that the employer should have followed up the intent to resign. By contrast, if an employee writes a highly detailed resignation letter indicating it was written without pressure, the Fair Work Commission might see this as evidence that the employee had free, ‘real’ choice.

Similarly, if the resignation letter contains expressions of gratitude towards the employer, the Fair Work Commission might question whether the working environment was one which the employee was really forced to resign from. Therefore, if an employee feels as though they are being forced to resign, they should not provide a resignation letter which makes it appear that they were happy to resign.

Verbal Resignation

Further, in some cases, the Fair Work Commission has emphasized verbal intentions to resign rather than the written resignation letter. For example, in Ms Ludawan Prince v the Kingsbury Group Pty Ltd, the employee argued that she asked her employer how she would resign If she were to do so.

Following this, her employer provided her with a resignation letter that she could use and which was accepted The employee argued that she had no intention to actually resign on that day and was forced to do so when she was provided the resignation letter by her employer.[3]

Fair work notes

However, the Fair Work Commission noted that the employee had spoken to multiple other employees about her intention to resign. She had also called her husband for help with how to resign.[4] The Fair Work Commission found that given the verbal indications that the employee intended to resign, ‘the letter itself – and the signing of it – was not material to the resignation’.[5]

As this case demonstrates, employees’ actions outside of the resignation letter will be considered. A resignation letter is not the only evidence of an intent to resign. Therefore, if an employee wants to argue that they were forced to resign, they should not act in a way that indicates they freely resigned. It is not enough to rely on the fact that their employer encouraged them to resign by providing a resignation letter.

Get-advice-before-you-take-the- decision-to-reign
Get advice before you take the decision to reign. Its can be emotional times, but really its business decision. Consider all options before taking that fateful step. If you intent on pursuing your employer for unfair dismissal or general protection claim. Get advice first

Should an Employee Provide a Resignation Letter?

It is common for employees to get a sense that they are about to be dismissed. For example, they may be becoming ostracized from other employees or be receiving poor performance reviews. Unfortunately, employees’ predictions are often correct. If the circumstances are unfair, the employee may want to lodge an unfair dismissal claim after being dismissed.

For a dismissal to be unfair, it must be ‘harsh, unjust or unreasonable’. This includes that there was not a valid reason for dismissal, the employee was not notified of the reason, or the employee was not given a chance to respond. In these situations, handing in a resignation letter before being dismissed may prevent the employee from being able to later lodge an unfair dismissal claim. This is because unfair dismissal laws only apply to employees who were dismissed, rather than employees who resigned.

As above, an exception to this is where the employee was forced to resign, but employees should note forced resignation has only been found in limited circumstances. Therefore, provided it is possible, it is recommended for employees to wait for the situation to unfold. Then, if they are dismissed, they can lodge an unfair dismissal application.

Employees should thus not be pressured to hand in a resignation letter or sign a resignation letter prepared by their employer against their will. In sum, a letter of resignation should not be provided unless the employee really wishes to resign.

Conclusion to Resignation letter Issues

I trust the article “Resignation letter issues” was helpful. Most people do not want to be out of a job. We all want to move on by a timing of our own choosing. Not because of some toxic workplace. Being forced to resign could happen to any of us, despite the fact we can do our job well.

We are A Whole New Approach P/l, the nations leading workplace advisors, we lead in advocacy, representation, workplace commentary. All Fair work Commission matters, including unfair dismissals, workplace investigations. If your seeking advice, give us a call, its free, honest, prompt advice, call anytime 1800 333 666. We work in all states. Victoria, NSW, QLD, SA, WA, NT, TAS

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Citations for Resignation letter issues


[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074.

[2] Marks v Melbourne Health [2011] FWA 4024.

[3] Ms Luddawan Prince v the Kinsbury Group Pty Ltd T/A Lumineye Nailcraft Innovations [2021] FWC 3939 [222].

[4] Ibid [223].

[5] Ibid [226].

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