Gary Pinchen, Author at Unfair Dismissals Australia

January 27, 2022

Serious Misconduct, will I lose my entitlements?

We are regularly asked if I’m sacked for serious misconduct will I lose my entitlements? It’s little known if you are dismissed for serious misconduct, some employment benefits could be at risk. If an employer dismissed an employer, the employee’s termination pay may consist of notice or long service leave, depending on the circumstances surrounding the dismissal. In all instances, annual leave entitlements must be payable upon termination. If an employer dismisses an employee for serious misconduct, the employee is summarily dismissed and will receive no notice pay and potentially no long service leave pay, depending on what Australian state they are located. (LSL is state based legislation)

Terminated for serious misconduct

When an employee is terminated on the grounds of serious misconduct, the employer doesn’t have to provide any notice of termination. Further, all states except Victoria withhold any pro-rata long service leave entitlement if the employee has been dismissed for serious misconduct prior to reaching the period of service when they are able to take the leave.

Consequently, some employers’ may label alleged misconduct as “serious misconduct” in order to avoid paying out certain employee entitlements or notice pay.

Fair Work Regulation 1.07 defines serious misconduct as conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. This conduct may also be conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business. Examples of serious misconduct includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions.

Valid reason applies in serious misconduct circumstances

Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’.[1] The standard of proof for serious misconduct remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’[2] and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’[3]

If the alleged misconduct was an isolated incident in an otherwise faultless career, you may be eligible to lodge an unfair dismissal claim as your termination may be considered harsh in the circumstances. [4] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.[5]

Unfair dismissal case of Adam Jolley v Cannon Hill Services

In the unfair dismissal case of Adam Jolley v Cannon Hill Services Pty Ltd,[6] an employee was terminated for theft after he stole a can of Coke from the vending machine located on site. When confronted about his actions, there was no deception or dishonesty on the part of the employee and he admitted to taking a can of coke with a likely value of $2 or $3. The employee did indicate that he had lost money many times to the same vending machine over a period of time without recompense. The employee was terminated summarily for serious misconduct regarding the alleged theft.

Ultimately, Commissioner Simpson held that there was a valid reason for dismissal for theft but overall, the dismissal was harsh given the mitigating circumstances. The employee was honest, forthcoming and expressed remorse immediately. This matter was distinguished from the facts in David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia,[7] where ground crew for Virgin stole two packets of cigarettes from a cargo shipment which was damaged and partially open after a flight. Both staff in that matter denied stealing the cigarettes and continued to deny doing so. They were subsequently found by the Commission to have stolen the cigarettes and the Commission pointed to their deception and dishonesty specifically in the following findings:

“[116] In my view, Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted. Obviously, neither applicant pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than ~$50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight. Whether it was a relatively small value theft or something more substantial, is really not the point. Theft is theft – no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission and in Mr Thomas’ case, his self-serving concoction of invention, I might have put their conduct, particularly in Mr Faamausili Ailua’s case, down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’. I am satisfied the allegations against the applicants have been proven. I turn now to the matters the Commission is required to take into account under s 387 of the Act”.
Commissioner Simpson of the Fair work Commission

Commissioner Simpson acknowledged that there was no deception or dishonesty on the part of Mr Jolley once confronted with his actions in taking the can of Coke. Mr Jolley owned up to taking a can of Coke with a likely value of $2 or $3 in circumstances where he had lost many times that amount to the same vending machines over a period of time without recompense.

Further, Mr Jolley had a long and unblemished period of employment with the employer. Commissioner Simpson acknowledged that it is significant that Mr Jolley was dismissed just prior to completing ten years’ service negating his eligibility for long service leave which would result in a substantial lost to him were the decision to terminate him on the basis of misconduct remain undisturbed given the long service leave provision in the Industrial Relations Act 2019 (Qld).

One instance of misconduct in nearly 10 years of otherwise unblemished service

Ultimately, Commissioner Simpson held that Mr Jolley had engaged in one instance of misconduct in nearly 10 years of otherwise unblemished service which in its proper context was a one off opportunistic and momentary lapse of judgement in taking the can of Coke without paying for it. It was out of character for him and occurred in circumstances where it was the last working day before plant shut down, the vending machine door was left open and he had on multiple previous occasions paid money for an item from one of the vending machines without obtaining that item because of some operational fault in the vending machines.

Commissioner Simpson held that Mr Jolley’s dismissal was harsh and, on that basis, unfair. Mr Jolle was awarded $28,280.00 gross and in respect of his withheld long-service leave, Commissioner Simpson held, “Whilst not strictly a matter for the Commission in the course of the matter it was common ground that in the event of a determination that his termination was unfair, Mr Jolley would be entitled to payment of pro rata long service in accordance with the long service leave provisions of the Industrial Relations Act 2019 (Qld)”.[8]

Conclusion for serious misconduct, will I lose my entitlements

I hope this brief article “serious misconduct, will I lose my entitlements?” has been helpful, these are stressful times and if you are facing dismissal you want every dollar you can get and are entitled to. We are A Whole new Approach P/L, we are not lawyers. We are experienced workplace advisors and representatives. If you have any questions your welcome to give us a call.

1800 333 666, its free, we work in all states, including Victoria, NSW, QLD

[1] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]; cited in Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

[2] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336].

[3] Ibid., [(1938) 60 CLR 336] at pp. 362‒3].

[4] Gasz v Mobil Refinery Australia Pty Ltd (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005), [17]; Streeter v Telstra Corporation Limited [(2008) 170 IR 1]; [2008] AIRCFB 15, [27]. 

[5] Potter v WorkCover Corporation, PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. See also Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

[6] [2020] FWC 2404.

[7] [2019] FWC 4464.

[8] Adam Jolley v Cannon Hill Services Pty Ltd [2020] FWC 2404 at [95].

January 24, 2022

HOW DO I PROVE MY UNFAIR DISMISSAL?

So, you have been terminated from your job and want to lodge an Unfair Dismissal claim. However, you may believe your termination was unfair but do not have any physical evidence to prove it. Or perhaps you secretly recorded a conversation between yourself and the employer but are unsure whether it can be used as evidence. There are important properties you should consider when proving that your dismissal was unfair. So HOW DO I PROVE MY UNFAIR DISMISSAL?

Employers make out, its all on you, you cannot take us on and win. You prove we have done anything wrong

STANDARD OF PROOF

Firstly, it is important to note that in the Fair work Commission, proving a dismissal as unfair is not a criminal test. Therefore, the relevant standard of proof is based on the Balance of Probabilities. In simply terms is it more probable than not that you have been unfairly dismissed?

Balance of Probabilities

In the Unfair Dismissals Benchbook, the term Balance of Probabilities is defined as being “the comparison of disputed facts to determine what is more likely to have occurred. A fact is proved to be true on the balance of probabilities if its existence is more probable than not.”[1]

The Balance of Probabilities standard requires you to prove that the dismissal was more likely to be unfair, than not. As such, the standard in proving such occurrence, is that there is a 51% or greater probability, that the dismissal was indeed unfair.

Beyond a Reasonable Doubt

The standard of proof for an unfair dismissal claim differs to the standard for a criminal trial. In a criminal trial, the prosecution must prove Beyond a Reasonable Doubt that the accused committed the crime. The standard for proving this is usually a 98-99% probability that the accused is guilty.

In this instance, the party holding the burden of proof (Prosecution) would need to collect as much evidence as possible, to prove beyond any sort of reasonable doubt that the crime was committed by the accused. People watch too much “law and order” or CSI and think this is what is applicable here. However, in an unfair dismissal or general protections claim, you will only need to require evidence that prove on the Balance of Probabilities, the dismissal was unfair. Luckily for you, this standard is usually easier to meet than a criminal trial standard.

For example, in a General Protections claim, once it has been established that you exercised a workplace right and that a dismissal took place, it is presumed that your employer dismissed you for exercising your workplace right. The burden would then be placed on the employer to prove they did not dismiss you for that reason. This potentially makes it easier for you to prove that your dismissal was indeed unfair.

THE BEST EVIDENCE

In an unfair dismissal claim, the best way to prove that you have been unfairly dismissed is to source previous messages or emails with your employer, manager or colleagues.

There is no denying that the use of mobile phones and smart devices have increasingly become the most popular form of communication with others, especially during the COVID-19 pandemic lockdowns. Approximately 9 out 10 Australians own a smartphone and spend an average of three hours per day connecting with friends and working on our devices.[2] Consequently, mobile phones and smart device have been playing an important role in unfair dismissal claims, as they act as the communication platform between an employer and employee. As such, screenshots of messages/emails between yourself and your employer may be beneficial when proving an unfair dismissal, but it may also be used against you. With this in mind, it may be best to think twice before sending that angry message to your manager.

Keeping emails and messages

Throughout your employment, you should highly consider exercising your workplace right through emails or messages with your manager/employer. For example, complaining about being underpaid or inquiring about conditions related to your employment, such as working from home one day to look after a sick child. It is best to exercise your workplace rights in this manner, so that correspondence and replies to your complaints/inquiries, are written in return.

Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292

In the case Wallace v AFS Security 24/7 Pty Ltd, the Applicant sent text messages to the payroll associate raising concerns about the rostering arrangements and inquiring into the failure to provide proper payment to the Applicant. The associate replied via messages that the Company no longer requires the Applicant’s services, dismissing the Applicant effective immediately.

The Applicant had presented the Commissioner with evidential screenshots of the text messages exchanged between himself and the Company. The Commissioner concluded that the Applicant’s dismissal was harsh, unjust or unreasonable. Additionally, the Commissioner stated that dismissing the Applicant via text message for undisclosed reason was ‘plainly unjust, unreasonable, harsh, and, unconscionably undignified.’[3]

Therefore, as demonstrated in the above case, keeping copies/evidence of your messages with your employer will be beneficial when arguing your case. The messages will aid in proving that your dismissal was unfair as it pushes the Balance of Probabilities chance beyond 51%.

McKay v Hail Creek Coal Pty Ltd [2012] FWC 7868

Although, it is wise to be mindful during your employment, that you do not send any written form of communication to your employer that will detriment your case. For example, in McKay v Hail Creek Coal Pty Ltd, the Applicant had left a threatening telephone voice message to his employer, in which was converted to a text message. The message read ‘you are dead, you just don’t realise it yet’ and I’m going to kill you…’ Consequently, the Applicant was dismissed. In this case, the Senior Deputy President concluded that the Applicant’s dismissal was not unfair in the circumstance.

RECORDED EVIDENCE

Perhaps you have no physical or written evidence to prove your dismissal was unfair. Although, you may have a copy of a recorded conversation between yourself and the employer, demonstrating a harsh, unjust or unreasonable termination. In some circumstances, the admission of recorded conversations may be unlawful. This is determinate upon which state you reside as there are different laws governing privacy and surveillance devices in each state.

In Victoria, employees may record “private conversations” only if they are a party to the conversation itself. Although, it is unlawful for the employee to communicate or publish the recorded conversation. Section 11 of the Surveillance Devices Act 1999 (Vic) lists exceptions to the communication of such recording. The exceptions are:

that there was express or implied consent of each party to the communication or publication of the private conversation,
that the communication or publication is to protect the employee’s lawful or public interest.
Or that the recording is communicated or published in the course of legal proceedings or disciplinary proceedings.

However, despite these exceptions, it is ultimately dependant on the Fair Work Commission as to whether the recording may be admissible in conciliation and proceedings. This is despite whether the recording was obtained lawfully or unlawfully.

Kharb v Eastfield [2013] FWC 6403

In Kharb v Eastfield Pty Ltd, the Applicant did not obtain any written material evidence to support his unfair dismissal claim. Instead, the Applicant relied on the private conversation that was recorded between the Applicant and his employer, recorded via his mobile phone. The issue was whether the secretly recorded audio was admissible as evidence.

The Senior Deputy President concluded that it is lawful in the Queensland Jurisdiction for the Applicant to secretly record a conversation to which he was a party to. Additionally, the Deputy President decided that the recording was permissible as the Applicant had made use of the recording for civil proceeding purposes.

As such, recordings of private conversations between yourself and the employer may be permitted by the Fair Work Commission. Although, this form of evidence is not recommended as it may hinder the trusting relationship between you and your employer, potentially leading to a reason for a fair dismissal.

Schwenke v Silcar Pty Ltd [2013] FWC 4513

For example, in Schwenke v Silcar Pty Ltd, the employee was dismissed for secretly recording a disciplinary meeting. The Commissioner decided that the secret recording had ‘undermined the mutual trust and confidence required in the employment relationship.’ The Commissioner concluded that it was a fair dismissal as the employee was not dealing honestly and openly with the employer and work colleagues.

The Commissioner made note that secret recordings are more likely to be permissible in one-on-one circumstances where there is clear discrimination, harassment or bullying.

Ultimately, it is recommended that you do not record private conversations between yourself and your employer without their permission, unless you are sure there will be discrimination, harassment or bullying in the circumstance. Consequently, it is suggested the best form of evidence of a conversation between yourself and the employer is to be via messages/emails.

dismissed, calm down, gather the evidence

NO WRITTEN OR RECORDED EVIDENCE?

If you do not have any proof or evidence regarding your unfair dismissal, you may still lodge an unfair dismissal or general protections claim.

As mentioned previously, the standard of proving your unfair dismissal case is on the Balance of Probabilities. Therefore, even if you do not have messages/emails of your conversation (perhaps your work email or work phone was taken from you after your dismissal), you can still prove on the balance of probabilities that your dismissal was unfair.

The more detail you write in your claim, the better the chances of proving your unfair dismissal. As such, it is highly recommended that as soon as your dismissal becomes effective, you draft your claim so that the details are still fresh in your memory. At A Whole New Approach, we can draft the claim for you at a Federal Court standard and ensure the appropriate and relevant evidence is attached as exhibits to your claim.

Witness statements

Additionally, you may like to call upon a colleague to draft a witness statement in regard to your dismissal, if they are willing to provide evidence that will support your claim.

FALSE OR MISLEADING EVIDENCE

It is extremely important to note that you should not provide any false or misleading evidence, or evidence that has been tampered with. Additionally, you cannot coerce a colleague/witness to provide a false or misleading statement either.

According to the Fair Work Commission, a person (the witness) commits an offence if:

The witness gives sworn or affirmed evidence, and
Gives the evidence as a witness; in a matter before the commission, or before a person taking evidence on behalf of the Commission for use in a matter that the witness will start by application to the Commission; and
The evidence is false or misleading.

This offence carries a penalty of imprisonment for up to 12 months.

Stealing evidence

Additionally, stealing evidence to support your claim will not be admitted by the Commission either. In Walker v Mittagong Sands Pty [2010] FWC 9440, the Applicant was accused of stealing oil from the Company. The Employer had illegally searched the Applicant’s car without permission and took oil samples to get tested. It was decided that the evidence was unlawfully obtained and was therefore not admitted.

5 OVERALL TOP TIPS

1. Keep screenshots of emails/messages between yourself and your employer.

2. If your conversations are in-person, note down any dates and quotes of what was said in those discussions.

3. Ask colleagues for witness statements if they are relevant and would support your claim.

4. Avoid recording secret conversations, unless you are definitely certain there is discrimination, harassment or bullying, and if you do not have any proof through messages/emails.

5. Ensure you do not provide false or misleading evidence.

Conclusion: How do i prove my unfair dismissal?

I hope the article was of some benefit to you, being sacked, or dismissed is serious, we we all know it can have devastating consequences to you, your career and your family. Have any questions around the proving your case, gathering evidence, give me a call, advice, assistance is free. We represent employees in all Fair work Commission matters, including unfair dismissal, adverse action , forced to resign

An interesting blog on unfair dismissal that expands out from the evidence part of your case to is the unfair dismissal is it worth it? page, that may assistance you, click here. We work in all states, including Victoria, NSW and QLD

Call 1800 333 666

[1] Fair Work Commission, Unfair Dismissals Benchbook (1 July 2021).

[2] Australian Mobile Telecommunications Association, ‘Mobile Consumer Survey 2017’, Deloitte (Report, 2017) <https://www2.deloitte.com/content/dam/Deloitte/au/Documents/technology-media-telecommunications/deloitte-au-tmt-mobile-consumer-survey-2017-211117.pdf>.

[3] Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, [62].

January 20, 2022

What is considered sick leave abuse

What is considered sick leave abuse has become a real issue in the last few months. Of course employers are never happy when you take sick leave, they never have been. They think you have to be committed like they are, which is seven days a week of course. However with the current issues of employees being off on sick leave due to enforced isolation through the COVID-19 rule sand enforcement, having COVID-19 itself and the mental effects of isolation and stress caused by two years of the pandemic and heading into year three. The calls to us have tripled regarding the way employees have been unfair treated and abused regarding absenteeism and sick leave related issues.

Sick Leave abuse by employees

Abuse of sick leave refers to employees who, over a period of time, have “gamed” the employers attendance policy. Exploitation of sick leave policy may range from employees not calling in or not showing up for their shifts, exhausting their available leave every month, and requesting extra time off when well.

Every time there is extra work to be done, knowing its going to be a busy day tomorrow, surprisingly employees are then sick, this places an extra burden on existing staff to carry the extra work. Also in these days of austerity, company’s do not have any spare labor and it falls to existing staff to do the work. Doctors certificates, particularly around the issues of mental health, bullying are more common than 20 years ago.

Sick leave abuse by employers

This occurs obviously when the employee in the view of the employer is gaming, lying, taking advantage of the the employer, the following are examples.

Insist on doctors certificates every time the employee is away, even for part days to attend appointments.
The employer insist they accompany the employee to the doctor’s, want to meeting with the doctor to discus the illness or injury.
Want to conduct their own assessment in the workplace regarding your injury and ability to perform your duties.
Employers want to get their doctors to examine you, they want access to your medical records.
Constantly tell you your not injured, your just lazy, just get over it, its all in your head, your letting the team down, your not loyal to the company
Encourages co workers to bully you, say there’s nothing wrong with you, we are stuck with doing your work while your away, probably have a good time or rest.
Start giving you menial tasks, stripping away your substantive role, setting triggers to make you resign.
Isolate you from others, indicate to you there is no future, no promotion, we don’t know why your still here.

The list is not exhaustive, but given the amount of calls and emails we receive, daily, weekly, its got some sameness about it, as to how some employers react to sick leave. There are allot of good employers out there who clearly go to exhaustive lengths, far exceeding any legal obligations, our world at A Whole New Approach is the bad employers where its all about them, staff are numbers, its profits that matter. This is despite the evidence showing if you allow a workforce to be healthy, to recover, to get fit, who have EAP (Employee assistance programs) in place, productivity will increase.

Thankfully, programs to increase the wellbeing of workers have been found to provide significant returns. The Australian Government states that for every dollar invested in the health of workers, on average $5.81 for will be returned in savings.
Eoghan Mackenna exercise physiologist and director of occupational health specialists, Logic Health,

Sick leave abuse, where to from here

Absenteeism and poor performance are without a doubt two of the most challenging employment management issues that employers struggle with on a continuous basis. Employers become despondent about the impact on productivity and service levels, and increasingly frustrated with employees who are unreliable and cannot be trusted to deliver. Looking for a quick fix when reaching the point where frustration levels become intolerable, is not the answer.
Judith Griessel Labour Law Specialist, Legal Consultant and Accredited Mediator

You can see from the above statement the appalling stance employers are taking and their advisors are stating. So you can see now why employees Google “what is considered sick leave abuse” Researching sick leave abuse employers are advised by their representatives to:

A) Look for the lies the employees are giving for the reasons for being ill.

B) Look for the patterns of the days employees are off.

C) Closely monitor the employee.

D) Consider mentioning to the employee that your thinking about hiring a replacement

E) Longer term ill or injured employees considering terminating them.

F) Document missing days

G) Monitor the employees social media, see that their doing after hours

H) Closely examine the medical certificates, have been tampered with, dates changes, different doctors used.

Its not just the advice, its the tenor of the advise, not a caring bone in the employers body, why not find out what’s really wrong before commencing these bullying, heavy handed actions. Is there anything wrong with finding out that the employee of 20 years service? Who may have cancer, heart complaints, their partner has dementia and need care or be taken to appointment. Is the workplace culture that toxic that nobody can take 10 minutes out of their day and find out what’s wrong and the status of the other.

Equally though employees have to give a bit, participate, give the employer required feedback, many employee indicate its their right not to inform the employer what’s wrong with them. That its a matter of privacy, they worry what colleagues will think (I see this particularly around mental health issues) There’s that old saying “sometimes you have to give a little bit, to get allot”

Medical certificate, Dismissed for not having one

If you get abused, you can lodge what’s referred to as a general protections F8C application, where the issues go before a member of the Fair work Commission to sort out in the first instance. If your terminated you can lodge a unlawful dismissal claim F8. or a unfair dismissal claim F2, there are strict timelines around lodgments. You welcome to call us and get advice on these processes. Being injured or illness is tough enough without the tactics and carrying on of the employer, do not suffer in silence, you do have rights.

Conclusion

“what is considered sick leave abuse”, I hope you have found the article informative, we are A Whole New Approach, workplace representatives and advisors. We are at the cutting edge of commentary (look at the blogs, we have written), Fair work Commission decision analysis and debate. Any thing to do with the workplace, we are here for you, unfair dismissal, general protections, workplace investigations. We work in all states, Victoria, NSW, QLD, SA, Tas, WA, NT

Call us for free, prompt, honest advice 1800 333 666

January 19, 2022

General protection rights to “whinge and moan”

General protection rights to “whinge and moan” in the workplace, background

General protection rights to “whinge and moan”, is great topic and needs to be explored, what is a right?, what is a complaint? Under the General protections provisions of the Fair work Act, and the subsequent decisions of the Fair work Commission and courts, its generally accepted that you cannot be dismissed for excising a workplace right. ie the right to complain. But when do complaints cross over to an employee whining and moaning about their workplace?. We get calls constantly from employees who complain every week, every time, or little detail or happening at work they are not happy with.

It goes without saying employers are not happy with what they see as a distraction. We see this particularly in probations periods. Of course its your right to complain at any time, but sometimes be smart about it, wait until your probation period is up, or the qualifying period is over. It gives you the rights to lodge an unfair dismissal claim, perhaps a more substantial general protections claim. Employers know this and will approach the issue in a more even handed way. That doesn’t mean you have to put up with a toxic workplace, or an bullying workplace or breaches of OH&S. Its your decision, I’m just pointing this out.

Lets examine what the Fair work Commission and the Federal court have decided

Manager has failed to win anti-bullying orders

In Fair work Commission case of Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd & Josie Williams,[1] a manager has failed to win anti-bullying orders against a female supervisor after the FWC found that his “violent objection” to being placed on a performance improvement plan at times became “blatantly misogynistic”.

On 3 June 2021, Mr Donovan Christopher Jnr Scott (Mr Scott) filed an application pursuant to s.789C of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Mr Scott’s employer is Vita People Pty Ltd (Vita People). The application sought an order to stop bullying against Ms Josie Williams, Business Manager at the North Queensland Telstra Business Technology Centre, and Mr Matt Parks, Regional Manager Brisbane.

Mr Scott was an account manager for Telstra service provider Vita People and began reporting to his former colleague, Ms Josie Williams, last year after her promotion to business manager at the Telco’s business technology centre in Townsville. Following concerns about missing targets, late starts, customer service and listening to LinkedIn podcasts during work hours, the employer imposed a PIP on Mr Scott in April 2021. Mr Scott responded to the development by telling Ms Williams, “Dude you’re wrong, this is bullshit“.

Commissioner Hunt of the Fair Work Commission described Mr Scott’s consternation regarding the reasonable and lawful direction to complete a certain number of GES unassigned tasks each month is extraordinarily immature. Ms Williams didn’t create or determine the numbers that all Account Managers needed to achieve; Vita People determined it as a business, based on its client’s requirements. Mr Scott’s refusal to comply with this reasonable and lawful direction was described as disruptive and rude behaviour towards Ms Williams.

Disrespectful behaviour was blatantly misogynistic

Commissioner Hunt also acknowledged that Mr Scott’s disrespectful behaviour towards Ms Williams was blatantly misogynistic as he would continually verbally refer to her as dude, bro or man. Ms Williams repeatedly informed him of her displeasure at being referred to in masculine terms but it appeared Mr Scott had deliberately continued to use these references towards Ms Williams. Commissioner Hunt reasonably concluded that Mr Scott would have been unlikely to have addressed his manager in such a condescending and rude manner if his manager was male.

Ultimately, Commissioner Hunt held that Ms Williams had been “correct” in placing the manager on a PIP, which she did with the “full authority” of Vita People management. Commissioner Hunt acknowledged that Ms Williams did not need Mr Scott’s consent nor his agreement as to what was within the PIP and her conduct was reasonable management action carried out in a reasonable manner.

Whilst this decision relates to an application for an order to stop bullying, Commissioner Hunt does make reference to Mr Scott’s “complaints” or lack thereof. In her decision, Commissioner Hunt made an interesting assertion regarding the effect of Mr Scott’s disputation of having to perform the task. Given this task was performed satisfactorily by his peers, Commissioner Hunt found that Mr Scott whinged and moaned about having to perform the task when he had no right to do so. This comment raises an interesting point in respect of what is considered a complaint, when a person has a right to complaint and when will a person’s “complaint” be disregarded as no more than a mere unjustifiable whinge.

No right to “whinge and moan”

A workplace right is defined s.341(1) of the Fair Work Act 2009 (Cth)(the Act). It includes a person’s workplace right to initiate or participate in a process or proceedings under a workplace law or workplace instrument, or to make a complaint or inquiry. The focus of this piece is on a person’s workplace right to make a complaint or inquiry in relation to his or her employment.

In Shea v TRUenergy Services Pty Ltd (No 6),[2] the Federal Court discussed the parameters of “complaint or inquiry.” In summary, they found that:

A complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
The grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
The grievance, finding of fault or accusation need not be substantiated, approved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
The proper purpose of making a complaint is giving notice of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed;
A complaint may be made not only to an external authority or party within the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
A complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
A complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint.

A person has a workplace right

This broad interpretation of the Act was also adopted in Henry v Leighton Admin Services Pty Ltd [3]where the Federal Circuit Court stated at [77]: “A person has a workplace right within the meaning of s341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employment rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations, or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment”.

In Evans v Trilab Pty Ltd,[4] the Court stated that a complaint or inquiry need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry for the purposes of the FWA; and only have an indirect nexus with a person’s terms or conditions.

dismissed for excising a workplace right — You have rights, how you excising them is the key, don’t get upset, get advice, know your rights, find out what to do next

Reported the wrong-doing of others

In Walsh v Greater Metropolitan Cemeteries Trust (No 2),[5] Justice Bromberg of the Federal Court expanded the term to include instances where the subject matter of the complaint or inquiry raises an issue with potential implications for the complainant’s employment – in this case an employee reported the wrong-doing of others. In Rowland v Alfred Health,[6] the Court held that a complaint or inquiry must be in relation to the employee’s employment. Prima facie this appears to be a constriction of the term; however Rowland has not since been cited with approval.

Whether a complaint or inquiry will be accepted to be in accordance with the general protections provisions of the Act, will depend on the facts, circumstances and context of each matter. Given the rather narrow scope of a workplace “complaint or inquiry” and as evident in Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd & Josie Williams,[7] an employee does not have the right to simply whinge and moan in the workplace.

As held by Commissioner Hunt, no employee will ever like every single task they are required to perform. There are many tasks that employees perform which they consider to be irrelevant, unnecessary, unpleasant, of no utility or boring. Reasonable employers will try and limit the amount of unpleasant tasks an employee is required to perform, but in life, these tasks need to be performed by somebody. As long as a task falls within the realm of reasonableness and is considered reasonable management action, an employer can direct their employee to complete such a task and the employee cannot object.

Conclusion to “General protection rights to “whinge and moan””

Thank you for reading “General protection rights to “whinge and moan””, answers are not always easy, we are here to help you. We are A Whole New Approach, long established advocates for employees. We are always researching general protections and unfair dismissal cases, to keep you up to date what are best practices, what the tribunal and courts are deciding. There nothing more political than workplace relations, its effects all working Australian’s, its changing daily. We represent employees in all Fair work Commission matters, we work in all states, including Victoria, NSW, QLD, TAS, SA, WA .

Give us a call, advice is free, prompt, confidential, 1800 333 666

[1] [2022] FWC 24.

[2] [2014] FCA 271.

[3] [2015] FCCA 1923

[4] [2014] FCCA 2464.

[5] [2014] FCA 456.

[6] [2014] FCA 2.

[7] [2022] FWC 24.

January 18, 2022

Should they be sacked? Two 7News Anchors Caught Cussing out Djokovic

Should they be sacked? Two 7News Anchors Caught Cussing out Novak Djokovic, this recent controversy got the attention of the media world wide, and deserves commentary as to whether someone should be sacked, and possibly what would the Fair work Commission makes of it all.

Summary of events, to Should they be sacked?

On 11 January 2021, a leaked video surfaced on social media depicting two of 7News TV presenters, Ms Rebecca Maddern and Mr Mike Amour, swearing and lashing out over the Novak Djokovic Visa saga.[1] In what appears to be a private conversation off air, Ms Rebecca Maddern states, “Whatever way you look at it, Novak Djokovic is a lying, sneaky asshole”. Mr Amour responds stating, “That’s it, I mean he’s an asshole. He got a bullshit fucking excuse and then fell over his own fucking lies. It’s just what happens, right, that’s what happened”.

The video went viral all over the world and purported 7News to make several public statements. On 12 January 2021, Mr Craig McPherson, Seven’s Director of News and Public Affairs, said the person responsible for leaking the ‘private conversation‘ would be dealt with. Mr McPherson stated, ‘The illegal recording was of a private conversation between two colleagues… It was an underhanded, cowardly act in breach of the Victorian Listening Devices legislation the perpetrator of which will be accordingly dealt with when found‘.

In addition, Seven’s Managing Director, Mr Lewis Martin, followed up on 3AW radio stating that Ms Maddern had apologised and the network was thoroughly investigating who was behind the leak. Mr Martin told 3AW radio, “We are going to have an outcome. What has happened here is illegal”.

7News is attempting to save face

Whilst it appears 7News is attempting to save face and flip the blame onto the person who leaked the video recording, they made no disclosure as to whether any disciplinary action would be taken against the two news anchors involved. Whilst Mr Martin acknowledged Ms Maddern had allegedly apologised, this apology was not made to the public and was only mentioned as having occurred by 7News in their public statement.

This incident raises important issues about potential disciplinary action that could arise against employees who’s conduct has the potential to cause reputational damage to their employer and whether this constitutes a valid reason for dismissal.

In the Fair work Commission, conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business, has been held to be serious misconduct and a valid reason for dismissal.[2] This conduct can include out of hours conduct that has a relevant connection to the employment relationship.[3]

Fair work Commission unfair dismissal cases

In Rose v Telstra,[4] the Australian Industrial Relations Commission looked at relevant decisions on out-of-hours conduct and provided the following summary:

‘The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or
The conduct damages the employer’s interests; or
The conduct is incompatible with the employee’s duty as an employee.'[26]

In cases involving out of hours conduct, it is not sufficient for the employer to simply assert that the conduct will in some way affect the employer’s reputation or compromise the employee’s capacity to perform his or her duties, there needs to be evidentiary material upon which a firm finding may be made.[5]

In Hayes v Murdoch University,[6] Mr Stephen Hayes was terminated for serious misconduct after he sent the following email to Mr David Kalisch from the Australian Bureau of Statistics (ABS):

“Mr Kalisch, Who the “f” do you think you are changing the scope of the census by collecting my family members’ personal data electronically to be stored indefinitely. My family’s personal information is none of your fucking business! I worked in IT Mr Kalisch and know (sic) you won’t (actually can’t) keep that data safe.

The Australian Government has been illegally spying on my family’s private emails, private phone conversations, actual physical movements (and god knows what else) for years and treasonously sharing that data with other countries without our knowledge – we wouldn’t even know about this outrage now if it weren’t for whistle blowers like Edward Snowden and Julian Assange who are now being persecuted by these same governments.

The world has changed Mr Kalisch and the Australian people no longer trust the Australian Government, especially as you are not asking us to complete the census but instead are threatening huge fines for those who do not ‘comply’. Tell you what why don’t you just use the data you stole from me for all these years and put that in your fucking Census!”.

The email was sent from the Murdoch University email address with the University’s logo and Mr Hayes’ signature. The ABS then emailed Murdoch University and complained about Mr Hayes behaviour stating, “Irrespective of their personal opinions, I feel sure that you would expect a higher standard of conduct from staff engaging under the signature block and logo of your esteemed institution”. The email was then tweeted online from an account with 1,200 followers and the University was receiving attention on social media.

regretting what they said — Once you say it, you can’t take it back

Mr Hayes was summarily dismissed for serious misconduct and he lodged an unfair dismissal application.

Deputy President Bull of the Fair Work Commission had no difficulty arriving at the conclusion that the sending of the email by Mr Hayes provided Murdoch University with a valid reason for dismissal. Deputy President Bull held that the misconduct constituted the use of language that was vulgar and offensive and was contained in an email identifying the University and Mr Hayes’ role at the University and this conduct was in breach of the University’s policies.

While the language used by Mr Hayes may be common vernacular in some circles, when reduced to writing and addressed to a specific recipient not personally known to Mr Hayes, Deputy President Bull found that such language has an element of intentional abuse and cannot be regarded under any circumstances as acceptable language. Further, the fact that the email was tweeted online and the University was receiving social media attention, regardless of the number of followers, gave rise to the conclusion that the reputation of the University was prejudiced. The employee’s unfair dismissal application was dismissed.

Lessons for employees and employers, for should they be sacked?

Employers should manage conduct-related dismissals of senior or high profile employees by considering:

the extent to which the conduct departed from the expected standard;
the nature of the employee’s role and the level of tolerance of breach of the expected standards by an employee in that role;
the commercial and reputational risks resulting from the conduct engaged in; the terms of the employee’s employment contract, and other policies, procedures and related documents;
the avenues of legal redress open to the employee; and mitigating circumstances of the employee.
Employees have to be aware of the standards expected.

If an employee is guilty of causing reputational damage.

If an employee is guilty of causing reputational damage, no matter how wide scale or before how many followers, an employer reserves their right to investigate and possibly take disciplinary action. In the case of the 7News scandal, Channel 7 appears more concerned with who leaked the video than what was actually said. Whilst many agreed with what the news anchors were saying, despite their profanity and offensive language, 7News reserves the right to balance the risk of reputational damage resulting from the conduct and chose to take no action if they believe it has not impacted their business negatively.

Channel 7 case is this equivalent, a serious slip up, be careful this is not you in the future. don’t end up with reputational damage, facing a dismissal, or termination of your employment contract.

Conclusion to: Should they be sacked? Two 7News Anchors Caught Cussing out Djokovic.

My name is Gary Pinchen, author, principal and owner of A Whole New Approach, we are leading workplace advisors and representatives. We are at the forefront of commentary, research, and change, anything to do with the workplace. We are not lawyers, this is all we do, examine at the blogs, well researched, a diversified list of subjects, it is not a list of “info commercials” to get better ranking for Google. We assist in all Fair work Commission matters, unfair dismissal issues, serious misconduct, etc.

Call anytime on 1800 333 666, advice is free, confidential, prompt.

[1] See video here: https://www.youtube.com/watch?v=HliNLBvLV0M

[2] Fair Work Regulations 2009, Reg 1.07(2)(b).

[3] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998); see also Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018 (Saunders C, 9 September 2016) at para. 104.

[4] Print Q9292 (AIRC, Ross VP, 4 December 1998).

[5] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998); cited with approval in Farquharson v Qantas Airways Limited, PR971685 (AIRCFB, Lawler VP, O’Callaghan SDP, Raffaelli C, 10 August 2006) at para. 25, [(2006) 155 IR 22].

[6] [2017] FWC 2174.

January 13, 2022

Resign: do you want to leave? or do you have no choice?

Resign: do you want to leave? or do you have no choice?, these sort of questions we are asked on a daily basis, through this article I will attempt to bring some clarity to the situation

Resigning from your place of employment in Australia is procedurally quite simple, but it can also be emotionally difficult and psychologically complex depending on the circumstances. This is because you may not be happy about the reasons you are resigning and might feel bitter or distressed by the events leading to the decision. If the circumstances and events leading to your decision made you feel like you had to leave the company, you could be actioning what is called a ‘forced resignation’.

When are you being forced to resign?

A forced resignation occurs when you find yourself in a position that leaves you no other choice but to resign. Essentially, you may have been forced to resign in a circumstance where you felt your employer coerced you into doing it.

You may have been forced to resign when:

Your employer refused to roster you on for shifts at your hospitality job, forcing you formally resign and to find another place of employment.
Perhaps your employer has made the workplace environment so unsafe for you that attending work would put you personally in very real physical, psychological, or emotional danger.
For some reason your boss assumed that you had resigned and acted as if you no longer worked there, even though you continued to come to work.
Your employer stopped paying your wages and refused to do so in future.

It is your responsibility to prove that you didn’t resign of your own free will, rather that it was as a result of the action or inaction of your employer. Generally, if you clearly state that you are resigning, you have indeed resigned of your own free will. However, if you made the decision when you were under a lot of emotional and psychological pressure, you may not actually have resigned, even if you made your intention clear.

For example, a heat of the moment resignation could happen when you are extremely upset with the actions of your employer and tell them that you are resigning in retaliation. Then, after thinking about the situation, you might go back to your employer the next day and say that you do not actually intend on resigning. In this circumstance, your employer would most likely need to accept that you have not actually resigned because you only intended to resign in the heat of the moment.

When are you NOT being forced to resign?

Essentially, if you were not coerced into resigning or clearly didn’t actually intend to resign in the heat of the moment, it is accepted that you resigned voluntarily. This distinction is vital because if you did indeed actually resign, there are very few claims you can make against your employer if you’re looking for compensation. For example, you can’t make any General Protections claims or Unfair Dismissal claims against an employer when you were the one to resign of your own free will, no matter how terribly you were being treated.

You may not have been forced to resign when:

You resigned in response to disciplinary action, that is, you did something wrong, and your employer wanted to talk to you about possible consequences. Or perhaps you resigned at some point during the disciplinary procedure.
You resigned because you had been suspended from work for disciplinary reasons. You might have thought that you were as good as fired because all of your employee access had been taken away and you hadn’t heard from your employer in a while, but this usually does not mean you’ve been forced to resign.
Perhaps your employer wanted to change the terms of your employment and you felt you either had to accept the changes or resigned. If a decision hadn’t yet been made about any changes to your role, then you are not being forced to resign.
You resigned because your employer wasn’t happy with your performance and wanted to take action to help you improve.
You resigned because your employer was not paying you your wages when they were supposed to.
Had enough of a toxic work place.

Don’t resign in the “spur of the moment”, take a deep breath, consider your options

What can you do if you were forced to resign?

If, all things considered, you believe you really did not have any choice but to resign, you may be able to apply for a claim at the Fair work Commission and receive financial compensation for the actions of your employer. In an Unfair Dismissal claim, you can ask for a maximum of 26 weeks’ worth of wages as compensation. If you exercised any workplace rights that led to your forced resignation, you may be able to make a General Protections claim. This kind of claim has added benefit in that you can not only claim wages, but also ‘general damages’ for the pain and suffering you experienced as a result of the forced resignation.

In deciding whether or not the amount of compensation you wish to claim should be granted, lots of factors will be taken into account, such as:

How long you were employed by the company,
How many permanent employees the company has,
The reason you decided to resign in the heat of the moment,
Any workplace bullying or harassment you may have endured,
Your age, or specifically how close you are to retirement age,
Whether or not the Company has the money to pay you out.

What if the circumstances that led you to resign still seem unfair, even if you resigned of your own free will?

Making the decision to resign, especially from a job that you enjoy and find very fulfilling, can be very psychologically distressing despite whether or not you feel you are being forced to do so. Will you be able to find a new job? What happens if no one will hire you in your preferred profession? Will your former employer give you a good reference? Or do you stay and continue to put up with a toxic work place.

In the past two years, with the pandemic raging on, these questions seem to be even more difficult to answer than ever before. It also raises questions about the circumstances in which we might call a resignation ‘forced’.

For example, say you’re a mother with two young, primary-age children and a partner who absolutely cannot work from home during the Omicron COVID-19 outbreak because they are a nurse or doctor. You work in an office that has valid requirements for staff to continue working in the office rather than from home, but all of your tasks can be completed from home. You ask your employer if you can work from home, and they say no because they need you in the office to support those who cannot. You explain that you are a mother of two young children and cannot leave them unsupervised at home because you don’t want to risk exposing them to day-care centres while the Omicron variant runs rampant. Your boss doesn’t budge, saying that you could very reasonably find people to watch the children who would not be a big COVID-19 exposure risk for your children, and it is vital to the company that you assist in the office. Many of your co-workers have already contracted the virus and you’re experiencing a staff shortage.

You are now in a position where you could reasonably follow your employer’s directions and find someone to mind the children, but that would come with added COVID-19 exposure risks for both the sitter and your family. This makes you very nervous because your partner works in a hospital and is already a big exposure risk to your family. You couldn’t bring the children into work with you either, partly because of the COVID-19 exposure risk, but also because you know they will be loud and restless and distract your co-workers. You feel that you’re being forced to make an impossible decision; risk exposing your unvaccinated children to the virus or resigning.

Under the forced resignation parameters as they stand, if you did resign, it is unlikely that it would be found to be forced. You intended to do it, you weren’t caught in a one-off, heat of the moment stressor, and your employer wasn’t making it impossible for you to carry out your role. Yet, all things considered, it feels like you really are being forced to resign. People severely ill with the Omicron variant are crowding the hospital system and everyone seems to be acting like it’s just a matter of time before they too contract the virus. Just three months ago, no one would have sided with your employer, but that was then, and this is now.

resign, what should i do? — nothing wrong on leaving on good terms

Confronting decision what to ultimately do, resign: do you want to leave?

\This scenario is just one example of many that real Australians are facing today when confronted with the decision to resign or follow their employer’s reasonable directions. These difficult circumstances are really only now popping up because of the State and Federal Government’s “let it rip” approach to the virus. In 2021 your employer would have been more than willing to let you work from home under the lockdown laws, but 2022 is different. There is no government support for businesses, and with tens of thousands of people contracting the virus every day, the workforce is suffering, leaving those who are not infected to carry double their usual workload. Many businesses have had to shut altogether because their entire staff team has contracted the virus.

Conclusion to Resign: do you want to leave? or do you have no choice?

It is difficult to say who would win if an employee were to bring a forced resignation claim in the circumstances described above. Employment law doesn’t have much to say on what counts as a ‘reasonable’ direction during this current Omicron outbreak, and it probably never will. All anyone can ask us to do is balance what’s best for us as individuals with what’s best for our community, whether that means resigning or not.

I hope you enjoyed the article and found it informative, I have deliberately kept it non legalistic, (a more legalistic article, “resign, do’s and don’ts”, click here when faced with choices, also, “5 reasons not to resign” click here All this it can be difficult, its challenging times to say the least, you do not have to be bullied, harassed, subjected to frivolous workplace investigations, unfair dismissal issues etc. Give us a call, its free, we are experienced workplace advisors and representatives, explore your options. Facing a toxic workplace? we have a informative page on coping click here, and a great article, click here. We are here to help Call 1800 333 666

January 7, 2022

Toxic workplace

What is toxic workplace culture

The way I put it is this, think of a tree in a toxic environment; the tree will fail to thrive, become wilted, and will ultimately die. That’s basically the metaphor for a toxic corporate culture. It prevents employees from thriving and while it (probably) won’t kill them literally, it won’t bring out their best and will eventually drive them to look for a job elsewhere. Toxic workplace culture on one level is institutional-centric; policies and procedures are designed with the company, not its workforce, in mind.

It means outdated work policies, for example a requirement to work from the office, that are mistakenly thought to squeeze the most productivity from an employee. It means benefits and perks that are easy on the company budget, but tough on employees’ lives. We see this in the pandemic, where real wages and hours are falling for employees, yet company proficts continue to increase, and high wealth company owners are worth more than ever before. It means regarding employees as objects that fulfill the company’s needs, not as people who have their own lives and families.

A toxic work culture results in workplace “illnesses,” such as lack of cohesion among teams, increased absences and tardiness, lower productivity and high turnover. The illness once it establishes itself with the company is extraordinarily difficult to eradicate

Employee Categories

Employees fall into four groups who allow themselves to be subjected to this behaviour, because if you examine the list below you would think why in earth would anybody continue to work for organizations that have and engage in this type of behaviour, it makes no sense.

First group are employees who feel / think they have no choice, I have bills, kids to put through school, pressure from the family, friends to stay for career purposes etc. That “things” somehow will get better

Second group, though the demeaning processes as described, the employee feels worthless, that they are not capable of getting another job. (how convenient is that for the current employer). They have been that appressed they cannot and will not pick themselves up.

Third group are employees who do not realize what’s happening to them, the culture they find themselves in, is the way companies conduct themselves. They do not realize its not normal, its not how best practice companies conduct themselves. That there is a better way. Examples of this, you joined the company after leaving school, university and that’s the way I just thought things were. The company makes a profit, so it must be ok. Some women who are subjected to domestic violence, unfortunately think that this behaviour is not that bad compared to their after work life.

Fourth group are the employees who like this behaviour, who appear to thrive on it, they are part of it, but once again usually think its normal, or suits their lifestyle away from a myriad of issues with their home life, who just want to get ahead and will “do what it takes”, and have an element of sociopathic behaviour in them. Surprisingly the percentage is higher than you think.

Signs of a toxic workplace and what the toxic culture looks like.

Fear-based management, feel constantly securitized, micro managed
Non producing and demoralized employees
An atmosphere of gossip and rumors, back stabbing, dramas
A lack of transparency from the management, don’t know what’s going on
Stress and uncertainty about the future, an unstable work environment
A sense of “it’s us against them” or “it’s everyone for themselves”
Significant instances of absenteeism or employees calling in sick at the last moment
Workaholic behavior, a fear of not working hard enough. and a lack of healthy work/life balance
Unclear employer expectations across all levels of management
Favoritism, wage gaps, or discriminatory policies. “your not part of the click”, or the gang
You don’t have a list of core values, no mission or vision statement, lacking a sense of purpose.
There’s the obsession gossip in the office, social media, groups on Facebook, etc being critical.
Unfriendly employee competition, management play one employee against another.
Employees are often tardy or absent, simply don’t care if they are on time, take long lunch breaks
Employees often work late or don’t take lunches, and when you go home or have a lunch made to feel guilty
Still hiring for culture fit, no diversity or new ideas or skills. (boss doesn’t want employees smarter than they are)
No workplace giving initiatives, no visual reward, no appreciation
Little or no promoting from within, no increased opportunity for additional training
Public criticism of employees, verbally within meetings or when your not there.
Obvious favoritism towards specific employees, boss’s favorites are obvious.
A mindset that regards employees as the company’s property, rather than as contributors to the business
An underlying belief that employees are inherently under-motivated or easily dispensed with
A lack of accountability at the highest levels of the organization, management have “they are born to rule syndrome”

The list is not extensive but I think you get the idea.

What do i do next?, you have 3 choices, read below

What one employee will put up with in a toxic workplace, another won’t, you have to decide what’s in your best interest.

Three Choices

I get many calls from employees, telling me me their story and particular situation, some events that’s occur in the workplace are horrific. I don’t mind hearing their stories, troubles, about the bullying the harassment, I add to the conversation and suggestions, etc. However I stop them there and say “are you going to do anything about this”, and the response in many instances is “oh no, I just need to tell someone”. I’ll respond somewhat harshly, “if you need a friend, buy a dog, if you need psychological assistance, that’s what your doctors for”. Nobody has to continue to suffer, be that tree in the nature strip starved of water, oxygen, fertilizer. Every night when you come home and see that tree, if looks sad, this doesn’t not have to be you. I tell anybody who listens you have three choices.

What Are They?

One; Leave, resign, this companies “BS”, its effecting me, you organize another job, and your out of there.

Two: You put up with it, as mentioned you might have financial commitments, career goals (finishing a apprenticeship, traineeship, gaining valuable experience.

Three: You do something about it, start pushing back, making suggestions, going to human resources, putting your concerns, your complaints in writing. Try and put a positive bias towards your comments, your actions. Lets be honest, no one likes a perceived whinger. Particularly organisations who have the culture mindset outlined above. If you have time research “Maslow’s hierarchy of needs“. How to change people, it can be done.

But what do I do if this doesn’t work?, or the organisations behaviour gets worst? Or what is more common, because you have excised your right to complain to the company, it has commenced adverse action again you, i.e. the employer wants to get rid of you, demote you, cut your pay. You do have the ability to lodge a claim with the Fair work Commission, referred to as a general protections application (F8C) or a anti bullying complaint (F72). Our general protections page has allot of details click here.

Conclusion

We have a great page up on how to cope with Toxic workplaces, it will improve your coping skills click here

I hope the blog toxic workplace was helpful to you, do not suffer in silence, allot of employees have the sense of “don’t make me go back to work there”. We we don’t have slavery in this country, you do not have to suffer this behaviour, I do understand people have bills, mortgages to pay, the key is to have a plan, were you want to be in 3 months, 6 months whatever, and work to that plan. We are A Whole New Approach P/L, for all Fair work Commission matters, bullying, harassment, being forced to resign, dismissals, your welcome to give us a call, its free, confidential, prompt.

Call now, 1800 333 666, we work in all states, Victoria, NST, QLD, SA, WA, TAS, NT

Looking to work out how much compensation your particular situation is worth,

Unfair dismissal click here,

General protections click here

December 30, 2021

Unlawful verses Unfair Termination what’s the difference?

Unlawful verses Unfair Termination what’s the difference? is aa topic we get calls on every day. When an employee is dismissed and they want to contest or challenge their dismissal, there are various applications that can be lodged to several industrial relation bodies, depending on the circumstances. In the Fair work Commission, there are two applications that can be lodged in relation to being terminated; an Unfair Dismissal Application (F2 Application) or a General Protections Application Involving Dismissal (F8 Application). This then begs the question; which application should I lodge? This particularly applicable to casual employees.

Lets work our way through this

Unlawful termination is the broad umbrella term used to describe all dismissals or terminations (it doesn’t matter whether casual or permanent) that do not comply with the law. This includes unfair dismissal or unfair termination, allegedly contravening the Fair Work Act 2009 (Cth). An unfair dismissal or unfair termination, by definition, is where a person is dismissed and that dismissal is harsh, unjust and unreasonable. Thus, all unfair dismissals are unlawful dismissals but not all unlawful dismissals are unfair dismissals. This is due to the fact that unfair dismissal claims have jurisdictional criteria that an employee must meet or satisfy, before they are eligible for a remedy under the Fair Work Act 2009 (Cth).

Firstly, an employee must have been dismissed. The term dismissed is defined in the Fair Work Act 2009 (Cth) as a situation where a person’s employment has been terminated at the employer’s initiative, or a person was forced to resign because of the conduct or course of conduct engaged in by the employer. Secondly, the employee must be an employee, on a regular and systematic basis (for casuals), they must not be a contractor and must not have been employed for a specified period, task, seasonal contract or traineeship arrangement.

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

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

Unlawful verses Unfair Termination what’s the difference?

Unlike unfair dismissals or unfair terminations, unlawful termination claims do not have these jurisdictional pre-requisites. They do however, have a very narrow legal argument which which does not consider general “unfairness” of the termination. Thus, lodging an unlawful termination claim is not a constellation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal/termination claim as you do not qualify, you cannot automatically lodge an unlawful termination claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth).

Aforementioned, unlawful termination claims in the Fair Work Commission, are lodged in the form of a General Protections Claim Involving Dismissal (F8 Application) and alleged that the employer has contravened the General Protections provisions, as set out in Part 3-1 of the Fair Work Act 2009 (Cth). The General Protections provisions prohibit employers from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes or sham arrangements. These claims do not consider any principles of fairness regarding the termination itself, as in an unfair dismissal claim. The only consideration for the Fair Work Commission is whether or not an employee has a workplace right or has exercised a workplace right and whether an employer has acted adversely towards the employee because of this.

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

Unlawful termination claims are more difficult to make out than an unfair dismissal/termination claim. This is due to the narrow scope of the provisions and the requirement for a causative link between the workplace right and the termination. Nevertheless, it is irrelevant whether there was a valid reason for termination, whether they received any warnings or whether the procedure was fair. These considerations are only relevant for the unfair dismissal regime.

For an unfair termination claim, the Fair Work Commission is required to take a number of considerations into account, such as:

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

If an employee is eligible to lodge either claim, given they satisfy the jurisdictional requirements for an unfair dismissal claim (example the status of a casual employee) or they can link their termination to their workplace right, the employee can only choose one claim to pursue in the Fair Work Commission. A person cannot lodge an unfair termination and an unlawful termination claim for the same set of facts, i.e. for the same termination. The employee must elect which claim they wish to pursue and only lodge that one.

In deciding which application to lodge, the employee must decide what it is that they are seeking. For both applications, an employee can ask for a variety of remedies but most commonly, an employee will seek either reinstatement or compensation remedies.

For unfair termination claims, reinstatement is the primary remedy sought but if this is not viable, the Fair Work Commission may order compensation in the form of a weeks of pay for economic loss. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress or humiliation. There is also a compensation cap of 26 weeks pay for these unfair termination claims.

However, prior to a formal hearing in which the Fair work Commission would determine the outcome and the subsequent remedies, an employee may strike a without prejudice and confidential deal with their ex-employer, in which the employee may seek compensation, to have their termination rescinded and for the employer to allow them to resign and for the employer to provide them with a Statement of Service.

For an unlawful termination claim, the remedies an employee can seek are virtually the same but in addition to seeking compensation for economic loss due to the employee’s dismissal, they can also seek damages for shock, distress or humiliation. However, if the matter does not settle in the conciliation conference, the Fair work Commission does not have the power to decide the outcome, as they do have for unfair termination claims. If the parties are unsuccessful in reaching an agreement for a General Protections Claim and the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect. A person has only 14 days after the day the certificate is issued by the Fair Work Commission, to make a general protections court application in the Federal Court or Federal Circuit court.

Compensation, How much?

There is also no cap on the amount of compensation that can be sought or awarded by a Court, but the court does look to the same factors as in an unfair dismissal claim (i.e., length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated etc.). However, the Court will also look at the non-economic detriment of the employee, when deciding to award damages. This includes medical evidence or doctors’ reports which demonstrate pain and suffering. An employee must therefore decide whether they can afford to pursue the matter through the courts because if they cannot, the unfair termination claims are a more cost-friendly form of litigation. Commencing any sort of litigation or court action can be an expensive ordeal.

An employee may choose to pursue an action under the common law in the courts but due to the cost of Federal Court actions, the employee may be facing tens of thousands of dollars in legal fees. Luckily, the unfair dismissal regime in the Fair work Commission, is a relatively cost-friendly process. Whilst is is a relatively cost-friendly process, this is why there is a compensation cap and so the employee must decide how much money they’re really seeking and if they can afford to fight for the bigger money with expensive legal court costs. we at A Whole New Approach P/L, are not lawyers, but on the federal court proceedings we have a excellent referral process, give us a call.

Unlawful verses Unfair Termination what’s the difference?

I hope you enjoyed the article, the topic has been explained in other blogs, however I’m striving to try and succinctly bring increased clarity to difficult subjects. Example of this is what casual employees can or cannot bring to the FWC. Got a question or concern give us a call. We are experts on anything to do with the workplace. Fair work commission matters, is bread and butter as they say, scan through the blogs, nobody publishes the workplace commentary the way we do. We are here for you, we will not let you down. We work in all states including, Victoria, NSW, QLD, SA, WA, NT, Tas

Find out “how much is my case worth“, and also compare your case to others

Free, confidential call 1800 333 666

We own https://unlawfultermination.com.au/ awdr.com.au sexualharrassmentaustralia.com.au this totals over 200 pages of valuable information for you

December 21, 2021

Diversity and Equity in the workplace

What does diversity and Equity look like in the workplace

What does diversity and equity look like in the workplace, is a subject I haven’t seen much written about, so here goes. There are many examples of diversity (and lack of) in the workplace. We all become comfortable with our own groupings. (you see this with religious groups, same beliefs, same ideals) Variety in many cases can be in the eye of the beholder.

Definition of Variety

the quality or state of being different or diverse; the absence of uniformity or monotony. it’s the variety that makes my job so enjoyable
https://www.google.com/search?q=variety+meaning

It’s worth taking a moment and asking: what does diversity and equity mean to you in a particular workplace environment? The concern is people become comfortable, accept the status quo. Not everybody wants to get up in the morning and challenge themselves to do better, make the company, the world a better place. Now this is not being overly critical of people, its just the way it is.

People often fall into an unconscious habit of thinking of diversity and equity in only one or two dimensions. It can be race, age, gender, amongst others, and employees usually only see diversity though their own circumstances and views. Allot of employees see diversity and equity as tolerance of others. Employees think well I work with other races, genders, religions, so we are a inclusive group here. Diversity and equity is ensuring there is deliberate policy and culture of avoidance of the stereotyping of the groups of employees. A deliberate approach to employing people that are individuals outside of the “group” , but based on skills, experience, not because of the sole basis they are different.

But this can intended consequences, in striving for diversity in the workplace, you employ people form a particular nationality, and the experience works out well for the company, then they ask can their friend have a job, they’ve just arrived from overseas. You think why not, its work out well so far, its still diversity. But the concern is diversity is here, but no equity, the particular nationality speak in their native language, hence the exclusion to others, Is this fair?, there is not simple answer, the last thing you want to be seen is to be perceived as a racist.

Definition of diversity

he state of being diverse; variety. “there was considerable diversity in the style of the reports”
the practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations, etc. “equality and diversity should be supported for their own sake”
https://www.google.com/search?q=diversity&oq

Is Diversity Easy?

But depending on the situation, you can almost always find a way to increase the level of diversity in a group of employees, or a team, factory, office, whatever on a decision, in planning, or in a conversation, or in a change of policies, but it must not look like or suggest discrimination in itself. Or a action just to say we are politically correct, to satisfy others outside the company (shareholders, media, legal, etc).

Diversity and equity in the workplace, faces many challenges

Here are a few examples:

Diversity and Equity in the workplace can be in the delivery or development of a new product or service.

The more employers are trying to serve and create value for a diverse set of customers and customer needs, the more they need multidimensional diversity in their teams.

The first level of diversity (that we almost take for granted now) is cross-functional representation. If you look around and only see scientist you know that is a problem.
The team is given the job of developing a product for a national market. It’s easy to look around and see whether a team is dominated by one gender or one race. Unless the product really only aspires to serve that homogenous market, that’s a problem.
What about socio-economic status? In most professional situations, everyone has achieved a similar band of income and economic security that can lead to a loss of perspective on value, pricing, and relevance. How about educational background? Does everyone come from one or two schools? Has anyone worked their way up through a community college or other means?
Do they share the same work experience? This is particularly an issue in large firms that have very structured career tracks.
Is everyone currently in the same city? Did they all grow up in similar environments despite coming from across the globe?
to break down this grouping is extremely difficult, and can take years to achieve, but you have to start, cultural change is a challenge, we all know that, but the quicker its acknowledged, the quicker it can be dealt with.

Groupthink. First documented in 1971, groupthink is a phenomenon that occurs when individuals avoid disagreeing with a group or expressing doubt. The larger and more similar the group, the less likely individuals are to dissent.

In this multi-faith commune, there is harmony in celebrating difference
Sunday Age, 19/12/2021

I think the headline in the age has some relevance, be proud of the difference, even if it comes pain and cost. The Australian way of putting “groupthink'”, is to refer to the group as “yes men”, there are numerous studies out, indicating the longer the CEO is in charge of a company, the higher the percentage employees around him or her that have like minded views. Why? On one hand, individuals may feel such a strong group identification that it feels uncomfortable or threatening to disrupt the group consensus. Group norms and behaviors form and solidify quickly because they seem to share so much in common. On the other hand, all of the individuals in the group might share such a similar set of experiences that they share the same blind spots and the same lack of awareness of their blind spots.

Even groups with the best intentions can fall prey to groupthink. Irving Janis, the psychologist who first researched group decision-making, found that behavior such as bullying, rationalizing, and lapses in moral judgment were more likely under these circumstances. You compromise your principals, standards to fit in, not “rock the boat”.

Having a diverse team provides access to a wider range of skill sets and experiences and different ways of thinking, behaving and communicating. This facilitates the growth of new ideas and reduces groupthink.

Diversity and Equity in the workplace, how do we do this? Changing the culture of a workplace is challenging but rewarding work.

Many shy away from it because they don’t know where to start or aren’t sure that they’re doing it right. If an organization has previously tried — and failed — to implement a diversity initiative, they may decide that such initiatives don’t work or that the benefits are no longer worth the effort, and maintain the status quo, after all it has worked previously for a long time.

However, there won’t ever not be a demand for inclusive and diverse workplaces, 40 percent of all people in Australia are foreign born and will be entering the workforce in the future. Now is always a good time to start, but if previous efforts failed, the company needs to take a different approach.

Here are eight ways to start reviewing, challenging — and shifting — your employer to a more inclusive environment, one to be proud of.

1. Recruitment processes

Ensure diversity and equity in your recruitment practices by making sure that you are looking at talent from all backgrounds. Don’t needlessly apply barriers to entry in the hiring process, like advanced degrees, expensive certifications, or experience with certain firms. poor English should not been seen as a barrier, wee have to knowledge 40% of all Australians are foreign born. The skills, training, experience that these migrants and refugees bring is fantastic and over the last 200 years its what Australia has been build on.

You have to insist that your Employer restate your companies commitment to inclusive recruitment, regardless of background and disability, in the job description. Make sure that when conducting interviews, you represent diversity amongst existing employees as well as in potential employees. There is a whole level of prejudice towards employees who have filed and or been on Workcover, that they are lazy, complainers or may just get injured again and be a liability to the company. We have to move away from this subconscious approach of “only fit, white, young males may apply”.

2. Employee groups

Your employees are whole people, and they bring their entire selves to work everyday. Its not uncommon to spend more time at work than with you own husband, wife or partner. It is hard to separate your work life, away from your home life, phones, laptops, social media going 24 hours a day doesn’t help, your expected to be accessible all the time. Providing spaces where employees can gather with other people of their background, ethnicity, and/or who share certain interests are a way to make sure that people feel included and represented at work. A prayer room, a area for women to breast feed, share their national food, these adjustment don’t really cost anything and it shows inclusiveness and respect.

3. Lead by Example

Leaders set the pace for their companies in more ways than one. Inclusive leadership groups make better decisions, and are a powerful reminder to the rest of the company of the values the organization embodies. Many people from under-represented backgrounds are concerned about their ability to progress in their career (that ever-present glass ceiling), so seeing someone they can relate to reassures them that the company is a place where they can thrive. There is a chance they can get ahead, not a felling of hopelessness.

4. Be upfront, honest in the approach

Don’t try to build diversity on your own. Be transparent about your efforts and ask your teams for help. One person can’t see or fix everything by themselves. Consider implementing regular meetings and feedback devices where your team can report on what they see, what needs to be improved, and discuss in a neutral space any concerns they may have. Be sure you follow up by acknowledging their concerns and implementing meaningful changes.

5. Community Engagement (Both in and outside the Company)

Social justice issues are prevalent, and companies can’t be quite like they used to be, you see this with climate change. There’s possibly no faster way to lose the trust of your people than by putting out a statement that isn’t reflected in their day-to-day experience. Take an zero tolerance stance against racism, discrimination, sexism, prejudice, and harassment. These are human rights issues, not limited to special interest groups. (this special interest groups seems to have in through lobbying groups) Building an environment where people feel safe and valued means standing up for their rights.

6. Be open, let it be seen

Diversity and groups means diversity of thought. Ask employees to contribute to the discussion, especially if they haven’t spoken up before. Remember, when a conversation becomes too homogeneous (in other words, when there is groupthink) it becomes harder for people to speak up with dissenting opinions. Play your own devil’s advocate and discuss the pros and cons of your own ideas. This will demonstrate that you are interested in the best idea, not just the most popular one. you are listening to all, with no fear as to who you are or background.

7. Do the research

Share the benefits of diversity with your fellow employees, share little stories, put the benefits forward, in a succinct way. Try and ensure where you can that it being evidence based. Looking at the positives is no bad thing, instead we are always, if we are not careful, of wanting to tear people, ideas down. Research continues to be done on the benefits of a diverse workplace. Across the board, employees are happier, healthier, stay longer, and produce more when they feel respected, valued, and included. Inclusivity builds trust within an organization.

8. Diversity and Equity Stories

Diversity and Equity in the workplace. I’ll tell a story (stories mentioned in 7) of my own, one Friday night (18 years ago) I was going out, of course I don’t drink drive, so I got an Taxi. I asked the driver to stop at a bottle shop, he wouldn’t, three times I asked, and he kept driving past bottle shops. It was obvious because of his religious beliefs. I was getting frustrated, I said to him, how many Christian friends do you have?, no answer. I said to him, ask me how many Muslim friends do I have, I said none. I said neither of us have crossed the divide. I tell this story to others in the work place over time, its shows the great divide, the lack of diversity in my friends. I took a conscious decision this is to never happen again, we at A Whole New Approach have a very diversified work force. See, its not that hard, it fits in with the “a fair go mate”, that we as Australian’s are proud of. The taxi drive and I are still friends to this day.

Conclusion: Diversity and Equity in the workplace

Diversity and equity in the workplace, isn’t just a conversation or whoever. Everyone has something that makes them different, its what’s makes us who we are and makes the world more interesting. Lets be honest it would be boring if we were all the same. The challenge for management is to play to employees strengths, get the best out of people, Employers should be doing this anyway, so its not like employers have to spend huge amounts of money introducing this change. Whether it’s a unique upbringing, educational background, way of thinking, or perspective on the world, whether its nature or nurture, we all bring our own strengths to the workplace. A diverse and inclusive employer is one that is on the forefront of innovation, social change, community and employee engagement.

I hope you enjoyed the article “Diversity and Equity in the workplace”. We are A Whole New Approach, leading workplace advisors, we are leaders in Fair work Commission matters, including unfair dismissals, discrimination, sexual harassment. We constantly lodge general protections claims relating to matters of diversity.

We contribute to the development of workplace diversity through assistance, advice, commentary, basically being vocal and standing up for employees. Have a concern, want to contribute to the debate, suggestions, give us a call 1800 333 666 or email us at mediate@awna.com.au. Fair work Commission stop sexual harassment order, forced to resign due to sexual harassment. Find out “what is my case worth?” for unfair dismissal “how much is my case worth“

December 9, 2021

US boss sacks 900 employees over Zoom

US boss sacks 900 employees over Zoom!!Well, I’m shocked, three weeks out from Xmas, only in America as the saying goes.

Man looking at laptop stressed — Being sacked can be devastating, we understand that.

The boss of a US firm has been criticized after he sacked around 900 of his staff on a single Zoom call. You reckon!
“If you’re on this call you’re part of the unlucky group being laid off,” said Vishal Garg, chief executive of mortgage firm Better.com, on the call, later uploaded to social media. Comments on social media said it was “cold”, “harsh” and “a horrible move”, especially in the run up to Christmas. “Last time I did [this] I cried,” Mr Garg told the staff on the call.
“I wish the news were different. I wish we were thriving,” he said. This time his tone was measured and he referred to notes on the desk in front of him. Mr Garg said staff performance and productivity, and market changes lay behind the mass-firing of what he said was 15% of Better.com’s workforce. He didn’t mention the $750m (£565m) cash infusion Better.com received from investors last week.
Better.com’s chief finance officer, Kevin Ryan, told the BBC: “Having to conduct layoffs is gut-wrenching, especially this time of year.” He added, however, that having “a fortress balance sheet and a reduced and focused workforce” was necessary to take on the “radically evolving homeownership market”. After the firing Fortune magazine confirmed that Mr Garg was the author of a previously written anonymous blog post in which he accused sacked staff at his firm of “stealing” from their colleagues and customers by being unproductive and only working two hours a day, while claiming for eight or more. The company, which aims to use technology to make the house buying process “faster and more efficient”, is backed by Japanese conglomerate Softbank and is worth around $6bn (£4.53bn).
https://news.yahoo.com/us-boss-fires-900-employees-185041934.html

Wouldn’t Happen Here

US boss sacks 900 employees over Zoom, would not happen in Australia, the Fair work Act, and the commission decisions that flow from these prohibit this type of approach. The reality is the US does not have unfair dismissal laws as we know it. (their laws prohibit discrimination). The US economy is the most dynamitic in the world, (Japan has the most advanced, China has plenty of cheap labor) it ramps up very quickly, adjust and reacts to changing circumstances with speed, far better than Australia, no doubt about this. So why haven’t we adopted the same approach here?. Its about the human cost.

Those 900 employees, their families, what’s the impact this decision and the way it was implemented, going to have, financially, psychologically?. All this in a country where a good percentage of people carry guns around!

Europe is the other way, in France, Greece you cannot get sacked, dismissed in the first two years of employment, so in many instances companies aren’t to keen to put people on for what’s could be perceived as a temporary high in the economy (Xmas, Easter, sale days etc) because they cannot get rid of you. Good if you’ve got a job, you have the security that goes with that. But young people, Muslim youth, older people not not given a bit of a start, the ability to prove yourself, that your worth training etc because the employer cannot move you on.

US boss sacks 900 employees over Zoom. So what’s the answer?

I think Australia’s got it about right, work for a company of less 15 employees you have be employed twelve months before you can lodge a unfair dismissal claim. If the company employees 15 employees or more, the qualifying period is six months. I get it, if your the employee that been terminated and there’s nothing you can do about it, you are distinctly unhappy. Your hopes, happiness, certainty about income dies a sudden death.

Be aware there is a very strictly enforced 21 days to lodge a unfair dismissal or general protections claim. Unless you have what’s referred to as exceptional circumstances (which are few), your stuck. Another option if your outside the 21 day rule is to lodge a discrimination complaint (only if you have a legitimate claim) with the relevant commission or tribunal, there is a loosely enforced twelve moth rule that applies

However this approach allows employers to put employees on to trial them, and then hopefully they get longer term tenure. It allows young people to get experience, older people to still have some opportunity, women to return to work after being off for some time. Interestingly enough employees ring me up and say these are unfair rules. Without getting into the politics , this was labor party legislation, in the Gillard / Rudd era. So the party for the worker, think these rules are OK. It would be remise of me not to point out you, you still may have a right for lodging a general protections claim, for unlawful dismissal. Your welcome to give us a call regarding this.

Lost Opportunity

The other difficult situation is when your out in the job market, and you have various options, as to who you can go and work for. Or you get two job offers, which one do you take?. Because your don’t want to accept a job offer to only be told after three months, your “not a good fit”, “its just not working out”, we are letting you go. In many instances your simply not sure which job to take, which job to apply for, of course everybody wants to work for an employer that gives you job security, and treats you with respect.

Be aware you do not have to agree to a probation period, you can have this specifically spelt out in your employment contact. If its not then a probation period automatedly applies. You cannot contract out of the qualifying period set out in the Fair work Act (2009), but it does mean you could have common law rights, in that you can take your employer to court. If the economic loss is significant, if the lost opportunity is there because you gave up other job opportunities, it may be worth perusing. You need advice from an experienced lawyer.

Want to discuss “US boss sacks 900 employees over Zoom”, what’s happened to you, call us, happy to chat. We are A Whole New Approach P/L, we are not lawyers, or a government agency, we are independent workplace advisors, we lead in advocacy work, representation and research on all matters relating to the workplace. Any diversity in the workplace issues, termination of employment, Any Fair work Commission matters, including being sacked (dismissed), general protections, workplace investigations.

We are the publisher (Gary Pinchen) of some 200 articles and the leaders in workplace commentary and research. We work in all states, including Victoria, NSW, QLD, Tas, SA, WA, NT. Want compensation, find out “how much is my unfair dismissal case worth“

All posts by: Gary Pinchen

Serious Misconduct, will I lose my entitlements?

Terminated for serious misconduct

Valid reason applies in serious misconduct circumstances

Unfair dismissal case of Adam Jolley v Cannon Hill Services

One instance of misconduct in nearly 10 years of otherwise unblemished service

Conclusion for serious misconduct, will I lose my entitlements

STANDARD OF PROOF

Balance of Probabilities

Beyond a Reasonable Doubt

THE BEST EVIDENCE

Keeping emails and messages

RECORDED EVIDENCE

Kharb v Eastfield [2013] FWC 6403

Schwenke v Silcar Pty Ltd [2013] FWC 4513

NO WRITTEN OR RECORDED EVIDENCE?

Witness statements

FALSE OR MISLEADING EVIDENCE

Stealing evidence

5 OVERALL TOP TIPS

Conclusion: How do i prove my unfair dismissal?

Sick Leave abuse by employees

Sick leave abuse by employers

Sick leave abuse, where to from here

Conclusion

General protection rights to “whinge and moan” in the workplace, background

Manager has failed to win anti-bullying orders

Disrespectful behaviour was blatantly misogynistic

No right to “whinge and moan”

A person has a workplace right

Reported the wrong-doing of others

Conclusion to “General protection rights to “whinge and moan””

Summary of events, to Should they be sacked?

7News is attempting to save face

Fair work Commission unfair dismissal cases

Mr Hayes was summarily dismissed for serious misconduct and he lodged an unfair dismissal application.

Lessons for employees and employers, for should they be sacked?

If an employee is guilty of causing reputational damage.

Conclusion to: Should they be sacked? Two 7News Anchors Caught Cussing out Djokovic.

When are you being forced to resign?

When are you NOT being forced to resign?

What can you do if you were forced to resign?

What if the circumstances that led you to resign still seem unfair, even if you resigned of your own free will?

Confronting decision what to ultimately do, resign: do you want to leave?

Conclusion to Resign: do you want to leave? or do you have no choice?

What is toxic workplace culture

Employee Categories

Signs of a toxic workplace and what the toxic culture looks like.

Three Choices

What Are They?

Conclusion

Lets work our way through this

Unlawful verses Unfair Termination what’s the difference?

For an unfair termination claim, the Fair Work Commission is required to take a number of considerations into account, such as:

Compensation, How much?

Unlawful verses Unfair Termination what’s the difference?

What does diversity and Equity look like in the workplace

Definition of Variety

Definition of diversity

Is Diversity Easy?

Diversity and Equity in the workplace can be in the delivery or development of a new product or service.

Diversity and Equity in the workplace, how do we do this? Changing the culture of a workplace is challenging but rewarding work.

1. Recruitment processes

2. Employee groups

3. Lead by Example

4. Be upfront, honest in the approach

5. Community Engagement (Both in and outside the Company)

6. Be open, let it be seen

7. Do the research

8. Diversity and Equity Stories

Conclusion: Diversity and Equity in the workplace

Wouldn’t Happen Here

US boss sacks 900 employees over Zoom. So what’s the answer?

Lost Opportunity

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