Unfair Dismissal

All posts by: Gary Pinchen

About Gary Pinchen

One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.

Dismissed for Anti-Lockdown Protest


Dismissed for Anti-Lockdown Protest

On 1 June 2021, a woman who breathed on a camera crew at a Melbourne protest has been dismissed from her job in aged care with her actions deemed “unacceptable”. Dismissed for Anti-Lockdown Protest is a great topic to discuss, please read on

Right to protest and not get dismissed

Dismissed for Anti-Lockdown Protest, these are troubling emotional times. We live in a democracy, but you still have to consider your job and employers position, particularly what goes up on social media. On Saturday 29 May 2021, a large group of anti-vaccination and anti-lockdown protesters gathered at Flagstaff Gardens in the CBD of Melbourne. Which was on the second day of Victoria’s lockdown. As police officers tried to move the protesters on. One woman was dragged away after she breathed on a camera crew. It was later revealed the woman worked for Baptcare Aged Care.

Following the protests, Baptcare put out a statement saying the employee’s behaviour did not match up with its core values. That the woman is no longer an employee of the organisation. In other words she’d been dismissed. Further, Baptcare stated that they do not condone the actions of this employee. Which were unacceptable, and out of step with their expectations as an employer, and the expectations of the community more broadly.

In light of this news report, many employees are now wondering whether they can be dismissed for attending any sort of protest and whether this out-of-hours conduct is a valid reason for dismissal?

Can I attend protests during work-hours?

Throughput the years, many people have attending protests and rallies regarding climate change. There have been overwhelming environment concerns that the public has and what appears to be relative inaction by the government, many feel that they have no choice but to head to the streets to protest. From school children to CEO’s, individuals have turned out in droves – but what happens if a protest is scheduled during working hours?

Does your employer have any power to stop you from going? The right to dismiss you? In 2019, the Fair Work Ombudsman has warned people they can’t simply not show up to work in order to attend planned climate protests across Australia.

The right to assemble

Legally, it has been recognized by Australian common law that the citizens of Australia have the right to participate in public assemblies of their particular concern or interest. The right to assemble is codified in the Summary Offenses Act of 1988. Such right is also expressly stated in the Peaceful Assemblies Act 1988. However, such public assemblies are governed by laws which are meant to ensure that such events are peaceful and do not erupt into violent emotional displays of interest.

While the personal right to assemble exists, it does not necessarily transcend a person’s obligation to their employer during working hours. As such, the Fair Work Ombudsman has issued a statement to all Australian citizens that you cannot simply leave work, or not show up for work, to attend a public protest pertaining to your particular beliefs or interests.

Workplaces are different now, careful your not dismissed

Notice of absence

The law is clear, persons wishing to be absent from work to attend to a personal situation or interest. Must give their employer notice of the absence and receive permission for the same. You then must use your own personal time or holiday time to attend the event. In addition, it is important to check the personal policies of your particular employer.

If your employer has set out the proper manner in which to request personal leave. You must adhere to their policies. In the event that an employee does not follow the procedural requirements of their employer. For the taking of personal leave to attend a public protest. The same employer-driven sanctions can be levied against the employee as in any other personal, vacation or sick leave occurrence.

Are my rights protected in the workplace?

Some employees may argue that their right to protest may fall under industrial action, but it has been held unlikely. Under section 19 of the Fair Work Act 2009 (Cth), industrial action means action of any of the following kinds:

  • the performance of work by an employee in a manner different from that in which it is customarily performed. Or the adoption of a practice which results in a restriction, or limitation on, or a delay in the performance of work
  • a ban, limitation or restriction on the performance of work by an employee. Or on the acceptance of or offering for work by an employee
  • a failure or refusal by employees to attend for work. Or a failure or refusal to perform any work at all by employees who attend for work, or
  • the lockout of employees from their place of employment by the employer.
  • you cannot be dismissed for lawful inductrial action

Industrial action does not include the following:

  • action by employees that is authorized or agreed to by the employer of the employees
  • action by an employer that is authorized or agreed to by, or on behalf of, employees of the employer, or
  • action by an employee if:
    • the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety.
    • the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work. Whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Unions will often argue that a public political rally doesn’t have an “industrial” character. Because it isn’t about the relationship between the employer and its employees. There is no demand made by employees or the union that the employer can satisfy. There are some cases where the courts have held that behaviour is not “industrial action”. If there is no “industrial” motivation. A union may rely on this to say that an employee walking off the job to express a political opinion cannot be “industrial action”. Even when organized by a union.

Dismissed for protesting, don’t join him

Leaving work to attend a political protest can still be “industrial action”

Helpfully, the Fair work Commissions predecessor tribunal and the Federal Court have both held that leaving work to attend a political protest can still be “industrial action”. There is no broad exception which applies to a rally because it is occurring in a “political” context. The FWC will always examine what has occurred in each case to see whether it meets the definition of “industrial action”.

However, the employer’s position will be stronger if it can show that the union has sought to negotiate any industrial issues in the same context. For example, if there has been a request that the employer release staff to attend the protest. Provide transportation, and/or pay the absent employees’ wages for all or part of the lost time. This will make it easier to show that the action being taken by employees has taken place in the context of a demand made of the employer.

Important lesson for employees

If you do decide to attend a protest. It is important to remember to be respectful at all times and follow the directives of police officers or crowd control authorities. In the event that you are caught on camera behaving in a certain way. (i.e. the woman breathing on camera crew during the anti-lockdown protest). Bear in mind that employer may not be impressed with your actions and it is clear that despite being off-duty, your actions may reflect poorly on your employer.

As a result, it is not uncommon for your employer to see your actions in a poor or negative light. If the employer believes that your actions have harmed or risked their reputation, an employer may have a valid reason to dismiss an employee.

Dismissed for Anti-Lockdown Protest

We love a challenge, make the call

Dismissed for Anti-Lockdown Protest

Feel challenged by your Employer?, going to be dismissed?, or sacked, or worse dismissed?, discriminated against? For all workplace and related matters, your welcome to give us a call on 1800 333 666. Get some advice, its free. We are A Whole New Approach P/l, we are not lawyers, but the nations leading workplace advisors. We are here to help you. Looking for a lawyer, call us first, explore your options. We work in all states. Victoria, NSW, QLD, WA, SA, TAS, NT.

Termination of employment issues, diversity in the workplace, workplace investigations, abandonment of employment. We are leaders workplace commentary, standing up for workers rights, give us a call.

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Are You Dismissed When You Are Not Given Shifts?

Are-You-Dismissed-When-You-Are-Not- Given-Shifts?
If the employer withdraws your hours, take you off rosters, ability to work, you may be dismissed.

Are You Dismissed When You Are Not Given Shifts?

Termination of employment means that you have either been dismissed / fired or have resigned. However, approximately 19% of the Australian workforce does not have that clarity as they are casuals.[1] Tasmania, South Australia, Queensland and Western Australia have the highest percentage of casual workers. This may be attributed to tourism being a dominant industry.[2] Therefore, this question is not easy to answer. In fact, the Fair Work Commission does not even have a straight forward answer for this on their website and benchbook

If dismissed, do I qualify for a claim?

By definition a casual worker is one who is employed with no set hours or roster. However, the Fair work Commission distinguishes casuals into two categories. A regular casual employee (one who works on a regular and systematic basis with a clear pattern or roster of hours) A casual employee who works on an irregular basis.

If you are casual who works on an irregular basis then you have to consider how often your shifts are and whether this period of time between shifts is out of the ordinary or not. As an irregular casual employee, you are not eligible for an unfair dismissal claim. Even if you have worked the minimum period of service (12 months for a small business, 6 months for a business with more than 15 employees).

Most casuals are looking for more work. Be flexible, don’t be dismissed for not fitting in. Although some casuals its really about life style choice. This is particularly the case in the gig economy.

Regular and systematic

If you are a casual employee who has a pattern of regular and systematic hours, and have not been given shifts. You are entitled to know why this is occurring. The first step is to figure out why you have not been given any shifts, have you been given a warning?, Or have they run out of work?

The term “regular” does not mean, you have had to have worked every day of the week. As long as it implies a regular pattern. Furthermore, “systematic”, is drawn from how the hours of work are allocated. Whether they are done with a roster or some kind of system, method or plan.

The Full Bench of the Fair work Commission, Vice President Lawler, Deputy President Drake and Commissioner Lewin in the unfair dismissal case of Shortland v Smiths Snackfood Co Ltd, defined the periods of service for casual employees as the following[3]:

“Each occasion a casual employee is engaged is a separate contract of employment. These contracts may be week to week, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement.

For the purpose of unfair dismissal, it is the period of service rather than the period of employment that is relevant. If the conditions of s.384(2)(a) are satisfied, then a period of service by a casual employee will count towards the period of continuous service.

Once continuous service is established, the employer or employee may only break continuous service by making it clear to the other party that there will be no further engagements.

For casual employees it is possible that some periods of service will meet the conditions of s.384(2)(a) and others will not.

Absence for illness or injury does not break a period of continuous service.”[4]

Vice President Lawler, Deputy President Drake and Commissioner Lewin

Reasonable expectation of continuing employment

The final aspect of whether a casual is to be considered eligible for an unfair dismissal is through the concept of “reasonable expectation of continuing employment. This is dependent on an individual’s circumstances, and is primarily an unsettled area of law. In unfair dismissal claim of Tilbrook v Willall Industries Pty Ltd,  a casual was employed for 2 years and 8 months.[5]

During this period of time, the casual had an 11 week period of unavailability. This was deemed by the courts as an interruption to the continuous service. However, they also found that the casual employment since that time, which had weeks without work for the employee, and this was held to be regular and systematic, as there was a reasonable expectation for the employee to have continued employment.

A lot of employees now want to work from home. There is no automatic right to this. Careful you don’t find the employee just starts to reduce your hours. Your not in the office so you don’t know what’s really going on.

Unfair dismissal eligibility test

The first question we ask our clients is “how long were you employed for?”. The Fair Work Commission is stringent with length of service when it comes to an unfair dismissal claim. If you were working for a business with less than 15 employees, it is considered to be a small business and you must have worked there for at least 12 months to be eligible to lodge an unfair dismissal application. If there are more than 15 employees, you have to have completed a minimum of 6 months service to lodge an unfair dismissal application.

You have been employed for 6 months or more (business with more than 15 employees) or 12 months (for a small business) on a regular and systematic basis. You have the same eligibility for an unfair dismissal claim as a part-time or full-time employee. You must have been dismissed at the employer’s initiative as per the Fair Work Act 2009.

As long as the hours have been regular and systematic, there is no minimum number of hours needed to work a week. This was demonstrated in the unfair dismissal case of Matthews v San Remo Fisherman’s Co-Operative. Where an employee who worked one hour a week, one day a week, satisfied the criteria of regular and systematic.[6]

Unfair dismissal rights

If your dismissed, you may not be eligible for an unfair dismissal claim. However you could have certain rights available to you in the form of a general protections claim. If you believe that you have exercised a workplace right (s 340 of the Fair Work Act 2009). Such as asking to have a shift swapped because you are unwell. Or have been discriminated against based on an accepted category such as sex, gender, race, family duties or nationality, and then lost shifts. This may constitute adverse action ( s 342 of the Fair Work Act 2009).

Unlike the criteria for an unfair dismissal application. A general protections application does not have a minimum period of service, nor do they distinguish between full-time, part-time and casual employees. The only category exempt from general protection claims are volunteers.

Remember: The Fair work Commission has a strict 21-day deadline from the last day of work for lodging claims. This includes weekends and public holidays.

Conclusion to “Are You Dismissed When You Are Not Given Shifts?”

If you feel that you have been dismissed because you are no longer receiving shifts from your employer. Give us a call. We are A Whole New Approach P/L, we are not lawyers, we are leading workplace advisors and representatives. Anything to do with the workplace, give us a call. Workers rights, employment rights, casual rights, probation issues, abandonment of employment, whatever.

Based in Victoria, we work on a national basis, NSW, QLD, WA, everywhere.

Call 1800 333 666

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[1] Australian Bureau of Statistics (2020), Insights into casual employment, occupation and industry, https://www.abs.gov.au/articles/insights-casual-employment-occupation-and-industry.

[2]Geoff Gilfillan (2020) ‘COVID-19: Impacts on casual workers in Australia- a statistical snapshot’, Department of Parliamentary Services, p. 5, https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1920/StatisticalSnapshotCasualWorkersAustralia

[3] [2010] FWAFB 5709

[4] Ibid.

[5] [2011] FWA 6300

[6] [2019] FWC 4877

Should your Employer say sorry? Apologize?

The word sorry, can be a powerful message. It can heal a lot of wounds

Should your Employer say sorry?

This raises the questions of “should you apologize at work?” and “how do you apologize professionally?” Lets work our way through these questions as well as the employers situation. If your going to apologize it has to be from the heart, it has to mean something to the other side. Be careful you don’t make a difficult situation worse by the lack of meaning in your apology. I do counsel you not to create a all or nothing scenario. You don’t want to end up dismissed or what may be essentially a battle of wills. I’m not down playing the value of the apology, but look at the bigger picture. Is the potential for dismissal worth it.

Apologize? Sorry, sorry, sorry, when should we say it?

You make a mistake in a civilized society, it is expected that you will apologise (sorry) to the wronged person. Everyone makes mistakes – even your employer or your boss. However, many employers steer clear of an apology. Refuse to apologise in any context as it implies fault and may expose them to some form of liability. However, this issue has been combated in many legal setting and enables employers to apologise to their employees without fear.

Apologies (sorry) and Admission of Liability

For instance, full apologies (including admissions of liability) given in relation to civil liability of any kind are protected from use in court in NSW, Queensland and ACT. Apologies in any civil proceedings are protected in South Australia. In Victoria, only partial apologies in proceedings involving death or injury of a person are protected (s14J Wrongs Act 1958).

These legislative schemes operate to allow employers to apologize or express their regret following an employee suffering a workplace injury. However these statements are inadmissible as evidence in proceedings. They are excluded from being considered in determining an employers’ liability for common law damages.

Legislative amendments serve as encouragement for employers to maintain their ongoing relationship with their employees. An employer can reach out to an employee and apologise for what they have suffered in an attempt to provide support. To show compassion. Without fear that they are compromising their position in relation to their liability for any potential claims.

Tempers are rising, avoid it, then you don’t have to apologise, don’t end up dismissed. Always the possibility of everybody goes down in flames. Avoid it. In my life I have hated apologizing, but once its done, I’m over it. I’ve moved on. No regrets, no sulking, no carrying a grudge, I know I’m the better person.

Apologizing in Employment Law Settlements

Many unfair dismissal and general protection cases, an apology (sorry) can play a major part in the settlement of a case. (be aware of the legislation that doesn’t not allow for an apology as part of the remedy) Almost invariably in such cases, the applicant or complainant believe that s/he is entitled to an apology because of misconduct of some kind by the employer. Dismissal from your employment is a stressful event, even when it is anticipated and/or warranted.

Whether you deem your dismissal unfair, possibly discriminatory or otherwise unlawful. The disruption, embarrassment, and injured self-esteem that result from employment dismissal. This possibly will produce anger that may stand in the way of settlement. An applicant or complainant may believe that no amount of money would suffice to undo the damage to their self-esteem.

Or that a settlement must be commercial large enough to punish the employer. On the other hand, an employer made often feel defensive and angry about the allegations of discrimination. The unlawful or unfair treatment. Employers are often of the belief that an employee’s termination is justified and the idea of an apology may be repugnant.

Difficult to overcome these emotional aspects

In either case, it is difficult to overcome these emotional aspects of employment disputes and dismissals. Thus, if a dispute is to be successfully resolved in the interests of both parties. We must consider ways of overcoming these emotional barriers. This could be through an apology. Maybe a statement of regret. Everybody has to save face, a win win situation. Not a win lose, because you might be the one losing, avoid it.

Benefits of an Apology

Apologies don’t work in every case, and in some cases, they may be necessary but not sufficient to resolve the unfair dismissal or general protections case. In some cases, an apology may not be appropriate at all. Many cases in which an apology might be useful, it is worth considering how an apology can help the parties overcome the emotional barriers to settlement.

Aforementioned, employers should not fear that apologizing to their employees admits any sort of fault or liability in lieu of any claim they may initiate. Nevertheless, it is important that employers and employees understand what an apology is and how it may benefit an employment relationship or even dispute.

The main benefit of an apology is that it encourages some moral introspection on the part of the person giving it. It requires them to internalize, to look at their behaviour and how they have treated the other person. Even if they do not admit fault. The very acknowledgement of the other person’s hurt or injury and showing regret that they feel that way, is valuable.

To be treated fairly, be the better person. Sometimes apologies are about ego, having the last say, avoid this. Careful how you push / box your employer into a corner.

Should your Employer say sorry? Apologize?

This shared acknowledgment can help heal the relationship and create a more positive dynamic. In addition, if the parties involved are going to continue working together, it can set the tone for their relationship in the future. Even if an apology is not the sole resolution on the table, it can ease the path to settlement of the dispute. There can also be a financial benefit as an apology can reduce ongoing animosity which in turn may lessen the time taken to resolve the issue.

Conclusion to “Should your Employer say sorry? Apologize?”

“Should your Employer say sorry? Apologize?”. I hope this article has been of some benefit for you, and moves the conversation along for you. Talk to us, at A Whole New Approach P/L if we can assist. If your facing dismissal because your won’t apologize when its not your fault. Or you have to apologize is completely over the top, a form of humiliation or your deserve an apology, give us a call. You do not have to put up with being bullied or harassed, explore your options, it cost nothing to make the call. 1800 333 666. We work in all states including TAS, SA, ACT

AWNA are not lawyers, but leading workplace advisors, give us a call. We keep it real, confidential, honest, prompt. AWNA are leaders in workplace commentary, justice in the workplace, diversity in the workplace. All Fair work Australia matters. Probation concerns, workers rights, constructive dismissal issues, serious misconduct, general protection claims call immediately.

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Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.


Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement. Has in recent cases (unfair dismissal and general protections) before the Fair Work Commission have explored the notion of “buyer’s remorse”, in regards to undoing settlement agreements reached during conciliation. People settling stressed, not thinking normally, or assume the Fair work Commission is simply there for them.

Unfair dismissal or general protections claim lodged

Once a claim is lodged with the Fair work Commission – e.g. an unfair dismissal claim (F2 Application). Or a general protections claim (F8 or F8C Application). The FWC will hold a conciliation conference, if the parties agree. During this conciliation conference. Each party can negotiate in an informal but in a rigorous manner and explore the possibility of reaching an agreed settlement. Now the question stands. If a settlement agreement is reached at conciliation, does either party have the right to challenge and undo the settlement agreed upon?

Challenging the settlement

There have been three recent cases in the Fair work Commission. Where the employee has challenged the settlement reached at conciliation. In one, the deal was undone and in the other two, the employee was held to the terms of the settlement that he had signed.

In the unfair dismissal case of Tao (Tara) Zhang v Spring FG Accounting Pty Limited,[1]  the employee and employer reached an “in principle” settlement on the day of the conciliation conference. The conciliator sent both parties an email confirming settlement had been reached. Further reminded the parties to finalize, sign and exchange a settlement agreement.

The employee’s solicitor then sent a proposed “Deed of Release” (the document recording the terms of the deal) to the employer’s solicitor. This version for the deed contained a broad “mutual release” clause. Which would have operated so that both parties released the other from all claims relating to the employment and the termination (i.e. a full release).

The employer sent back some amendments to the deed including one limiting the release only to claims relating to the unfair dismissal allegations. The employer did not want to release the employee from her post-employment contractual obligations. The employee argued that the employer’s one-sided release had not been discussed. Or agreed upon during the conciliation and the employee insisted on a “customary full release”. It is importantly noted that standard Fair work Commission Deeds of Release (i.e. Terms of Settlement) contain standard mutual terms such as mutual confidentiality, mutual non-disparagement and a mutual non-release.

Employee under pressure to settle

The matter erupted into a dispute

The matter erupted into a dispute about what was said by whom at the conciliation conference. The employee’s lawyer asked the FWC to set the matter down for arbitration on the basis no agreement had been reached. Commissioner Bissett then had to decide whether the settlement stood or the matter should be referred for arbitration.

The decision Commissioner Bissett looked at the notes made by the lawyers during the conciliation conference. She found that there was no evidence that the scope of the mutual release (one way or the other) had been discussed or agreed. The Commissioner held that there had not been a “meeting of the minds”, so there could not be a binding agreement. This meant the unfair dismissal application remained unsettled and so it was referred to arbitration.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

In the unfair dismissal claim of Michael Souter-Robertson v Achieve Corporate Services Pty Ltd.[2] The parties had not reached an agreement in the initial conciliation conference. In turn the parties were directed to file materials for a listed arbitration. The matter was listed for arbitration by Deputy President Asbury. Additionally it was listed the matter for a secondary conference on 14 June 2016, prior to proceeding with arbitration. This was done in hopes of allowing the parties another opportunity to explore options for resolution to resolve the matter. The parties reached an in-principle agreement at this secondary conference and Deputy President Asbury sent out the terms of settlement to both parties.

On 1 July 2021, the Applicant’s representative wrote to Deputy President Asbury indicating,

Upon careful consideration of his position, the Terms and the evidence, the Applicant has decided that he is unwilling to accept the Respondent’s offer of settlement and would like the matter set down for hearing. While we have not previously encountered a similar situation and are therefore uncertain of procedure, in the circumstances of Deputy President Asbury presiding over the Conciliation Conference, the Applicant has instructed that we make application to the Registrar for the hearing to be conducted by a different Commissioner.”

You should be respected in your unfair dismissal conciliation. In reality its everybody for themselves

The Applicant’s representative did not inform the Respondent’s representative of their position.

Given the dispute between the parties, the matter was referred to Deputy President Gooley to determine whether there was a binding agreement to settle the unfair dismissal claim Thus, the Commission has the power to dismiss the application as it has no reasonable prospects of success.

Deputy President Gooley found that there was in fact a binding agreement to settle the unfair dismissal claim and upheld that the Applicant should not be permitted to resile from the agreement made because he had “buyer’s remorse.”. Deputy President Gooley also highlighted that both parties were represented at all times. Indicating the importance of legal representatives advising their clients regarding the binding nature of settlement agreements.

In general protections claim of Chris AKA Christopher Lawless v Australasian Association of Philosophy.[3] The employee had signed the settlement document and applied to the Fair work Commission to undo his settlement and for a certificate to be issued in order to pursue his general protections claim.

The reasons the employee gave as to why the settlement should be undone included that he was suffering from post-traumatic stress disorder. The employer was represented while he was not, he was not properly prepared for the conciliation conference. The Commissioner overseeing the matter had provided misleading information about the cost of taking his matter to the Federal Court and there was insufficient time for him to consider his position.

The employee had lodged his general protections claim with the FWC and then the employer raised jurisdictional objections which were heard by Commissioner Platt. After the jurisdictional hearing on 4 March 2021 and before the Commissioner decided those issued, he invited the parties to participate in an “off the record” conciliation conference with him.

In principal agreement was reached

An “in principal” agreement was reached on 4 March 2021 and the matter adjourned until the next day. On 5 March 2021, the employee confirmed to Commissioner Platt that he had received a copy of the deed that the employer’s lawyer had prepared overnight. He summarized it and advised that he was of sound mind and agreed to settle his claim on the terms in the deed. He provided his ex-employer with a signed copy on 8 March 2021. However, the employee failed to lodge the paperwork to discontinue his claim. When the Commissioner’s associate prompted him to do so on 21 April 2021. He argued the settlement was not binding and he wanted to proceed with his claim.

Commissioner Platt made a decision responding to the employee’s arguments and concluded that the employee had not been pressured or rushed during the Commission proceedings. He was of sound mind. He had indicated that he correctly understood the terms of the settlement he was entering into. Commissioner Platt said that “buyer’s remorse” was not an appropriate basis to undo a properly founded settlement. Commissioner Platt refused to issue a certificate for the Federal Court and closed the Commission’s file.

Some conciliation conferences feel like this. You’ve been unfairly dismissed now this

Agreements in conciliation are binding

These cases serve as a caution to parties that any in-principle agreement reached during conciliation conferences at the Fair work Commission (and in other tribunals, commissions or courts), may be held to be binding and they cannot be undone.

Nevertheless, it is important to utilize the conciliation conference and address all necessary issues. Such as specific terms of settlement which pertain to the agreement. Aforementioned, the parties should discuss the Deed of Release in the conciliation conference. Ensure there is an agreement in regards to any non-standard terms. That either party may wish to incorporate (i.e. one-sided release, any post-employment obligations or restraints of trade).

If you are participating in a conciliation conference at the Fair work Commission, make sure that you are prepared. That you understand the terms that you will accept and can communicate these clearly. These cases demonstrate the importance of obtaining proper legal advice. Review potential representation through the aid of lawyers/paid agents/representatives before making a decision and accepting a deal. You may ask permission from the Fair work Commission (and in other tribunals, commissions or courts) to hold the file open for a few days. While you obtain the necessary legal advice regarding the offer put forward. Taking these steps will ensure that parties are making the most informed decision as undoing settlement agreements is evidently challenging.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

I hope the article was helpful to you. Negotiation is not a game, particularly when it involves your future. Employees say “oh I can do that myself”. I think to myself, its not working out to well for you so far. Your dismissed, the employer is lying to you, well good luck. We are A Whole New Approach P/L, we are not lawyers, we are based in Victoria. However we work on a national basis. We are considered the nations leading workplace advisors. You should get advice, Be professionally represented, be smart about what your options are.

Your welcome to get free advice from us call 1800 333 666 . All unfair dismissals, general protections issues. Anything to do with the workplace we are happy to give you advice or suggestions on what to do next. Workers rights, employment rights. Looking for a lawyer, call us first. You can see from reading the article we know what we are talking about.

Get help, get advice.

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Types of Workplace Harassment


Types of Workplace Harassment

Types of Workplace harassment can take many forms and can ruin a great job, turning a workplace environment toxic and unproductive. Harassment is conduct that is severe and pervasive enough that a reasonable person would consider the workplace intimidating, hostile or abusive. It can include acts of assault, intimidation and ridicule.

In the context of employment, harassment can be categorised as physical or emotional harassment. These forms of harassment are protected and governed under anti-bullying and anti-discrimination laws. Harassment is against the law when it falls under the definition of bullying or when a person is treated less favourably on the basis of certain personal characteristics, constituting discrimination.

If you want to fight for your job and discuss options for combating workplace harassment, we can help!

Workplace Harassment – Emotional Harassment

Physical harassment refers to physical abuse such as sexual assault or violence on the body while emotional abuse refers to imposing stress and bullying. These forms of harassment overlap with bullying, sexual harassment and discrimination.

Emotional harassment is often unnoticeable and gets less attention in the workplace than physical harassment. Emotional harassment can be defined as hostile verbal and nonverbal behaviors that are not explicitly tied to sexual or discriminatory tendencies, yet they are directed at manipulating and degrading an employee. The most common form of emotional harassment in the workplace is bullying.

Keep records of incidents

Emotional Harassment – Bullying

Are you experiencing bullying in the workplace and want it to stop so you can keep your job? Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker. Or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.

In Amie Mac v Bank of Queensland Limited and Others,[1] the Fair work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorizing, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumor-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.

In regards to establishing a risk to health and safety for the test of workplace bullying. Proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is demonstrated. Thus, the bullying behaviour must create the risk to health and safety through a casual link.

Conduct that is reasonable

However, conduct that is reasonable management action will not constitute bullying. Thus, the employee will need to demonstrate that the action is not reasonable management action that is conducted in a reasonable manner. The question of whether the management action was carried out in a reasonable manner is a question of fact and the test is an objective one.

It considers what action is taken. The facts and circumstances giving rise to the requirement for action. The way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

Emotional Harassment – Discrimination and Sexual Harassment

Workplace harassment in the context of discrimination and sexual harassment can be against the law when a person is treated less favorably on the basis of certain personal characteristics, such as race, sex, pregnancy, marital status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. These are protected attributes and harassment on this basis constitutes discrimination.

Discrimination and sexual harassment are generally forms of emotional harassment. Once an employee begins physically intimidating a fellow employee through sexual assault or acts of violence on the body, this falls under physical harassment (as discussed below) and may become a criminal matter.

Harassment in the context of discrimination can include behaviour such as:

  • telling insulting jokes about particular groups that possess these protected attributes
  • displaying content, such as posters, which is offensive content to groups that possess these protected attributes
  • making derogatory comments or taunts about someone protected attribute

Sexual harassment constitutes sex discrimination (Birch v Wesco Electrics (1966) Pty Ltd (2012) 218 IR 67 [81]; Aldridge v Booth (1988) ALR 1 [16]-[17]), as the employee has been treated less favorably than colleagues of the opposite sex in being sexually harassed.

The company should have policies. Put your complaints in writing, keep a copy for future reference.

Sexual harassment

This is a broad term, including many types of unwelcome verbal and physical sexual attention. Sexual assault specifically refers to sexual contact or behaviour, often physical, that occurs without the consent of the victim. Sexual harassment generally violates civil anti-discrimination laws. You have a right to work or learn without being harassed.—In many cases is not a criminal act, while sexual assault usually refers to acts that are criminal.

Harassment in the context of sexual harassment and sex discrimination can include behaviour such as:

  • sending explicit or sexually suggestive emails or text messages
  • displaying pornographic posters or screen savers
  • asking intrusive questions about someone’s personal life, including his or her sex life.
  • unwelcome touching, hugging or kissing;
  • staring or leering;
  • sexually suggestive comments or jokes;
  • unwanted invitations to go out on dates or requests for sex;
  • behaviour which would also be an offence under the criminal law. Such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

A one-off incident can constitute harassment. All incidents of harassment require employers or managers to respond quickly and appropriately.

If you want to discuss the harassment you have been subjected to and what you can do about it, please give us a call on 1800 333 666 for a free and confidential discussion.

Workplace Harassment – Physical Harassment

Physical harassment in the workplace takes many forms, such as workplace violence and sexual assault. Workplace violence is defined as physical threats and assaults targeted at employees, which includes:

  • physical assault such as biting, scratching, hitting, kicking, pushing, grabbing,
  • throwing objects
  • intentionally coughing or spitting on someone
  • harassment or aggressive behaviour that creates a fear of violence, such as stalking, , verbal threats and abuse, yelling and swearing
  • hazing or initiation practices for new or young workers, and
  • violence from a family or domestic relationship when this occurs at the workplace. Including if the person’s workplace is their home.
Harassment-and-bullying-can-be-in-the form-of-isolation.
Harassment and bullying can be in the form of isolation, exclusion, treated differently

Sexual assault and workplace violence

Aforementioned, sexual assault specifically refers to sexual contact or behaviour. Often physical, that occurs without the consent of the victim and may constitute criminal behaviour. Some forms of sexual assault include:

  • Penetration of the victim’s body, also known as rape
  • Attempted rape
  • Forcing a victim to perform sexual acts, such as oral sex or penetration of the perpetrator’s body
  • Fondling or unwanted sexual touching.

If an employee has been subject to workplace violence or sexual assault, they are encouraged to report this to their employer but are not precluded from reporting this to the police also. If an employee has been subjected to emotional harassment in the form of bullying or general sexual harassment and discrimination, they may lodge a complaint in the context of their employment and under civil laws, as discussed below. (workers compensation may be an option).

Making a Complaint about Bullying

If you feel that you have been bullied in your workplace, there are a number of things you can do. Firstly, you can tell the employee who is bullying you to stop and that you are uncomfortable. Sometimes, this is enough to make the harassment stop and for the employee to realise their actions are creating a threat to your health and safety.  

If you have told the employee to stop, but the behaviour continues, report the behaviour to Company management. Complaining to the boss may seem daunting and you may be in fear of adverse action. However most employers will be willing to help and rectify the situation once they are aware. If an employee is uncomfortable by bullying and harassment conduct of other employees or their superiors, they have the right to speak up and put an end to the bullying.

Should this fail and the Company has not taken any steps to address or rectify the bullying behaviour. The employee can seek assistance by lodging a claim to an external body such as the Fair Work Commission and fight for their rights. If an employee is still employed by an employer and wishes to make an application in regards to workplace bullying, the employee can lodge a Form F72 – Application for an order to stop bullying. This application seeks a preventative remedy, not remedial, punitive or compensatory. If appropriate, the Fair Work Commission will schedule a mediation session for the parties involved to try to help them resolve the case.

Benefits of mediation (sorting it out)

One of the benefits of mediation is that the outcomes that can be reached can be tailored, depending on the parties’ situation. This means that the parties can seek to resolve a case in any way they consider will assist them to resume a constructive and cooperative relationship. If there is no agreement the case will progress to a formal conference or hearing before a Commission Member. This will enable the application to be determined and a binding decision or order be made.

A binding decision or order will require a worker/s or the employer to stop the bullying behaviour. The worker/s may be ordered to comply with the employer policies. To be separated, transferred, have rosters changed. For the employer or principal to monitor the behaviour or their work participants. For training or counselling to be offered to the worker and to be taken up by the worker. The employer may be ordered to review and improve their bullying policies and complaint handling policies or for behaviour to cease outside of work.

If you want to fight for your job and stop the bullying, we can help! Please call us on 1800 333 666 and we can assist you in fighting back against your employer.

Making a Complaint about Discrimination and Sexual Harassment

If you feel that you have been discriminated against. Sexually harassed in your workplace, there are a number of things you can do. Firstly, you can tell the employee who is discriminating against you or sexually harassing you to stop. Sometimes, this is enough to make the harassment stop and for the employee to realize their actions are unwelcome.

If you have told the employee to stop, but the behaviour continues, report the behaviour to Company management. If the Company fails to address the discrimination and sexual harassment, the employee can escalate their complaint to an appropriate body.

In the Fair Work Commission, the employee can lodge a number of claims, depending on their circumstances.

Non-Dismissal Disputes

If an employee is still employed and has complained about the discrimination or sexual harassment to no avail, the employee can lodge an F8C Application.

The employee will need to demonstrate that the employer has subjected an employee to a form of adverse action (not termination). further they believe this action was done because they have exercised a workplace right by complaining about sexual harassment or discrimination in the workplace. Adverse actions can include as prejudicing the employee or injuring the employee in his or her employment. The employee can argue that the Company’s inaction constitutes adverse action as they are refusing or failing to remedy and address the complaint.

Once a complaint is lodged, the Fair work Commission will only hold a private conference to deal with the dispute if both parties agree to attend. If one of the parties to a non-dismissal dispute does not agree to participate in a conference, or if the dispute remains unresolved after the conference, the employee can choose to make an application to the Federal Court or the Federal Circuit Court to deal with the matter.

During a conference, a Commission Member will work with those involved to reach an agreed resolution to the dispute. The Commission Member may make a recommendation or express an opinion during the conference, but cannot make a binding final decision or an order.

Don't-be-stood-on-walked-over-don't- suffer-in-silence.
Don’t be stood on, walked over, don’t suffer in silence.

Remedies and compensation

The employee can seek specific remedies as to what they would like to occur in order to resume a constructive and cooperative employment relationship. If the employee believes the relationship is beyond repair. Further they no longer want to be employed, the employee can see an exit package, by way of resignation, to terminate the employment relationship. Providing the employee can demonstrate pain and suffering as a result of the harassment suffered. The employee may seek compensation in the form of general damages. If you want assistant or guidance in lodging your application against your employer,

Please give us a call on 1800 333 666 for a free and confidential consultation.

Dismissal Disputes

If an employer has terminated an employee and they believe this action was done because they have complained about discrimination or sexual harassment. Or because they possess a protected attribute, the employee has 21 calendar days after the termination took effect, to lodge an application in the Fair work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference. The same procedure is followed as in non-dismissal disputes.

If you want assistant or guidance in lodging your application against your employer. Please give us a call on 1800 333 666 for a free and confidential consultation. We are in your corner, none should suffer in silence, stand up for yourself, your family, the community.

Types of Workplace Harassment

We are A Whole New Approach P/l, we are not lawyers. Noted as the nations leading workplace advisors, any issues with unfair dismissals, general protections, in fact anything to do with the workplace, give us a call. abandonment of employment, forced to resign, adverse action, we do it all

We work in all states, Victoria, NSW, QLD, SA, WA, Tas, NT

Bullying by the mean girls, click here

Bullying when working from home, click here

Toxic and bullying workplaces, click here

[1] [2015] FWC 774.

Resign? Being forced out of your job?

Resign, don’t do it. Don’t be bullied into resigning, get advice first

Resign? Being forced out of your job?

Are you really?, is the question. Its a high test at the Fair work Commission. You have to argue that’s its impossible to stay. Many employees who resign, enquire after they resign. Its too late. Explore your options, develop a strategy where you want to be in say 2 months time. You want to get out of the current employer. and you want a new job. So how do I get there?, How do I do this?, What’s the process?

Many employees who are suffering view the workplace, their lives one day at a time. Its survival thinking for many. Some go off on doctors certificates. Nothing wrong with that if that’s what your medical practitioner states. But only when the sick leave runs out, do many employees say, hey what do I do now. Some time out could be a good thing, but start developing that strategy. sometimes though you have to take a step back and look at the bigger picture.

Before You Resign, Consider Your Options

Regardless of whether you want to stay or leave your employment, it is important to remember to never resign! Once you resign, the onus is on the employee to prove they were forced to do. This may be a difficult task. You ended the relationship, you have prove it, that it was the employer’s fault.

If your having issues at work and no longer want to work for your employer? Are you experiencing difficulties in your employment and don’t know what you can do to fix it? Rather than resigning or suffering in your employment, we can assist employees in lodging disputes against their employer. Test the employer out, don’t walk away empty handed. What will the employer pay to keep you? or see the back of you?. At least then its sorted out.

Get packaged out, instead of just resigning

Aforementioned, it is important that you never resign. Once you resign, the onus is on the employee to prove they were forced to do so. Prior to making the decision to resign. It is important to consider a dispute option, discrimination claim and other processes you may be eligible to lodge. This is in order to exit your employment with the best possible advantage. You have to think though how long you will be out of work, reputational damage, etc.

Fair work Commission claim

A Fair work Commission Form F8CGeneral Protections Application not involving Dismissal. Is an application in which employees can seek a preventative remedy but also possible compensation through an exit package. For more information on what a General Protections claim is, please visit our General Protections page or call us on 1800 333 666

Ask yourself, are you being bullied at work after making a complaint? Have you made a complaint about something in the workplace (called excising a workplace right) and now the employer is treating you less favorably? Is the employer demoting you after you made a complaint?

If an employee can demonstrate that the employer is acting adversely towards them as a result of them exercising their workplace rights. We can lodge an F8C Application to resolve the issues you are experiencing at work and potentially restore your employment relationship.

Through these applications and disputes. We can help clear your name of any allegations that an employer may have brought against you. We can request a transfer to another position within the Company. Possibly restore a previous position if you have been demoted and many other similar remedies. If you want to fight for your job, we can help!

Once-you-resign-there-is-no-going- back
Once you resign, usually there is no going back. This thinking of they can’t survive without me. They will never be able to replace me, is just nonsense.

Employment relationship has deteriorated beyond repair

However, do you feel like the employment relationship has deteriorated beyond repair? Do you want to continue working or would you prefer to leave? If an employee can demonstrate that the employer is acting adversely towards them as a result of them exercising their workplace rights. As a result, does not wish to continue their employment, the employee can see an exit package, by way of resignation, to terminate the employment relationship. If the employee can demonstrate pain and suffering as a result of the workplace bullying. Or harassment the employee may seek compensation in the form of general damages.

Bullying or harassment

Are you experiencing bullying in the workplace and want it to stop so you can keep your job? Are you wondering what conduct actually constitutes bullying in the workplace?

Under the Fair Work Act 2009 (Cth) (the FW ACT). Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker. Or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety. Depending on the circumstances, employees’ may be eligible to lodge an application for an order to stop Workplace Bullying (Form F72). Possibly a General Protections Application not involving dismissal (Form F8C).

Bullying, stand up for yourself, call us, we’ll stand beside you

Order to stop Workplace Bullying

A Form F72 – Application for an order to stop Workplace Bullying. Is an application which seeks a preventative remedy, not remedial, punitive or compensatory. For the FWC to be able to make orders to stop bullying. It must be satisfied not only that a worker has been bullied at work by an individual or a group of individuals. But also that there is a risk that the worker will continue to be bullied at work by that individual or group of individuals.

Once an employee lodges a Form F72. The Fair Work Commission will consider the evidence and whether, assessed objectively, that evidence constitutes bullying behaviour and, in that context, whether it comprised reasonable management action carried out in a reasonable manner. Prior to a determination being made, the Fair Work Commission is likely to hold a preliminary conference to consider how the matter will proceed. How the parties will conduct themselves during the course of proceedings. A matter may then be listed for a determinative conference or a hearing to determine whether or not to make an order to stop bullying.

Fight for your job

Don’t give up. Fight for your job. Don’t let some petty employee, or manager or employer derive you of your income and enjoyment in life. You do have rights, its how you excise them is the key. Give us a call to discuss, explore your options. Sometimes you feel it is easier to resign. Maybe it is, however you have to think it through, get advice, work out what’s best for you and your family

Conclusion: Resign? Being forced out of your job?

We are A Whole New Approach P/L. We are not lawyers, however if you looking for a lawyer, we are the alternative. AWNA are the nations leading workplace advisors, any issues around unfair dismissals, general protections or any other workplace matter we are happy to help. 1800 333 666 . 7 days a week. all calls confidential, prompt and to the point. You can see from over 100 blogs we know what we are talking about. We are at the forefront of workplace commentary, always questioning the system, calling it out as we see it.

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The sack how do i beat it?

Being sacked is one of the worst human emotions you can go through, we vare here to help you

The sack how do i beat it?

First of all, there must have a valid reason. The sack, how do i beat it? starts with what is valid reason. Employers usually sack (dismiss) you with a ‘valid reason’ and they must notify the employee of these reasons. That is why they use disciplinary meetings and investigations to justify their reasons and demonstrate a “fair and just” process.

Competent support saves jobs. Do not underestimate the support person. 

Being unsupported is unprotected Many organizations will have a designated employment law expert either an inhouse solicitor or HR representatives masquerading under the disguise of “people and culture” or are a member of a industry association. They are “guns for hire” they will sack you when required, they are paid to do it.

These employees / representatives are highly trained, specialized and have the backing of the company’s virtually limitless resources to terminate your employment with prejudice. Many Employers give minimal notice to the employees often via email regarding workplace meetings whether that be for workplace conflict, mediations, or investigations. Letters may be vague and may not contain the exact allegations but quite often will contain the words “you may bring a support person”. Employers talk about this, they talk about that, they don’t use the work sack.

These crucial words

This may be the difference between an unsalvageable end to a career or you leaving with your reputation and income intact. Many employees find it an unnecessary cost to spend monies on an industry expert to attend the workplace meetings due to the perception that there is no need to pay someone to hold their hand. Regardless of workplace investigation or workplace mediations. Often misleading to the untrained eye, the average person thinks “support person” is an open invitation to bring a friend or relative. But instead this is a critical opportunity and should not be underestimated.

As per s387(d) of the Fair Work Act, there is no positive obligation for an employer to offer a support person to the employee.

However, employers cannot refuse the employee the opportunity to have a support person in attendance. Employers cannot decide who can or cannot be a support person and furthermore they cannot refuse the adjournment of a workplace meeting by an employee who needs more time to seek a competent support person.

Get the help you deserve

The sack how do i beat it? The role of the support person can help

Support persons cannot advocate nor represent an employee in these workplace meetings and are usually there in an observational capacity. This does not prohibit consultation in private or in the various time outs requested by the employee. It also evens the odds, when usually in these meetings there are more than one employer representative

It is within the rights of the employee to interject any cross- examination of the employee, bullying and intimidation as well as providing essential witness testimony if the matter proceeds further. Having an industry expert as a workplace support person will likely result in a far more favorable outcome than one you can negotiate yourself. Unions and lawyers often attend these meetings strictly for the purpose of making sure the employee does not get taken advantage of as there are many complex parts to this negotiation, both parties need to look after their interests.

Don’t be bullied, harassed, stand your ground

Employers often try and forced you to resign, so they avoid the unfair dismissal or general protections claim. Employees are often presented with lowball offers of money often accompanied by the forfeit of their workplace rights. Usually there is no obligation for employees to sign any agreement with the employee as some monies such as entitlements should not carry such caveats.

Without a competent support person to consult, too many sign their rights away with a ‘one-way deed of release’ ultimately extinguishing their chance of seeking proper justice. Workplace investigations can often involve the employer questioning often quite aggressively the employee and pushing beyond the lines of what would be deemed as excessive. This is how many employers handle workplace conflict.

Employers will often mis quote and paraphrase the employee to suit their own purpose, this is often the case with un-supported employees who walk blindly into workplace investigation meetings and are ambushed in a room full of trained interrogators. Usually once Employers get you in their sights your in strife, you need to fight for your job.

Don’t be ambushed. Called in while injured.

Employees will often make concessions

As a result, employees will often make concessions and admissions to the employer resulting in the demise of their career. An example of this employees just apologize even if they have done nothing wrong, hoping by doing this they will keep their job. Employers then say, now you’ve admitted you’ve the wrong thing or no doing your job properly your dismissed. Employees un-supported are likely to jeopardize their employment due to their lack of experience in dealing with complex and treacherous questions

Thus, you should always engage the services of a competent support person who can properly advise you of your workplace rights and prevent the employer from taking advantage of you. Industry experts will always deliver you a far better outcome than you can possibly negotiate.

Allot of employees don’t take a support person in to a meeting, the thinking is they wont sack me, I’ll see what they have to say, well now your out of a job

21 days to lodge a unfair dismissal or general protections claim

Not only do you retain the services of the expert, you also have access to their experience and reputation often being enough to have the employer treat you with the proper respect you deserve. Your welcome to get free advice from us, or we can represent you, remember never resign and there a strict 21 days to lodge a unfair dismissal or general protections claim. Sacked makes you feel like crap, do something about it. Getting the sack is terrible, I was sacked some 35 years ago, I never forgot it, I feel your pain, if this has happened to you.

All the events that you get blamed for that ends in a dismissal

Conclusion to The sack how do i beat it?

I hope you enjoyed the article. We are A Whole New Approach, we are not lawyers, but the nations leading workplace representatives and advisors, we are here to help you, get free advice, it is free, prompt, honest, we keep it real, facing the sack call today. Looking for a lawyer, we are the alternative, no win, no fees or fixed fees, 30 years experience, call explore your options. We are located in Victoria, however we work nation wide. Victoria, NSW, WA, Qld, wherever.

Call us on 1800 333 666

Useful reading, AWDR, a site with 150 pages of good reading (owned by A Whole New Approach P/L)

Send us a email at mediate@awna.com.au, we are happy to answer your questions, publish your story.

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Misconduct & Social media

Misconduct, be careful, you have rights, protect your job. Its how you excise those rights is the key. You cannot go out into the world of social media unfretted and say whatever you like about your workplace. Your colleagues unchecked, there will be consequences, including dismissal.

Misconduct & Social media

Companies are in an unknown and untested legal ground with the continuing development and acceptance of social media. Its increased use in the workplace for personal as well as work purposes. Whilst attempting to figure out how to handle what had previously been simply perceived as misconduct. Moreover, what is considered the blurring of work time and the increasingly 24 hour global economy. How far the company may intrude into employees’ zones of privacy is morphing into something that is as of yet not fully defined. Misconduct & Social media is more relevant than ever before.

This constantly changing of living, conducting ourselves and business brings with it an entirely new set of challenges to the disciplinary arena. For example, prior to the rise of social media, if an employee working made a statement about his or her salary publicly and the employer had instructed him or her not to do so, such an action may have resulted in dismissal. However, if the same event occurs through social media the result may be different.

If I post something on Facebook, can I be dismissed for it?

Social Media & Misconduct, what’s the new workplace landscape? The Fair work Commission in QLD heard the unfair dismissal case of Thompson v 360 Finance P/L [2021] FWC 2570. Where it was decided that serious misconduct spans to the cyber world when it concerns colleagues or the Company itself.

Posted memes on his personal Facebook Page

In this case, the Applicant claimed he was unfairly dismissed after he posted memes on his personal Facebook Page. The Fair work in Queensland found that as one of the memes contained sexual connotations to a colleague. This involved the workplace. The Applicant argued that as he did not have the Company listed as his employer on his Facebook. The public would not know who it was about. The Applicant had also received previous formal warnings for sexual and derogatory comments in the past.

Fair work Commission has a consistent approach to deciding matters with regards to digital communication, in turn social media and serious misconduct. Serious misconduct is defined as conduct that is willful or deliberate. That it is inconsistent with the continuation of the employment contract as per regulation 1.07(2)(a) of the Fair Work Regulations.

In the workplace there can be a lot going on in the background. The gossip, the “office politics”, rumor. Social media is tailor made for this material to venerated, from the convenience of your home, late at night. Dismissals for the untended actions by employees is increasing.

Serious misconduct and Facebook

A case previously decided by the Commission in regards to posting on Facebook involved an employee making negative and threatening comments about a colleague on Facebook. The Commission found that threatening another employee is a serious issue and constitute serious misconduct. Therefore, the Commission has made it clear that when alluding to workplace matters in the digital realm, an employee is held to the same code of conduct as if it were in person.

The Applicant’s primary argument was that this conduct was not in fact a breach of the company’s code of conduct. As “all sorts of conduct’ was permitted in the workplace. Including racially provocative emails, racist secret Santa gifts and aggressive or abusive conversations with clients and suppliers.

The Fair work did acknowledge that the Company’s standard of conduct fell short of the conventions expected in workplaces. However, they stated that the Applicant’s conduct was “nonetheless plainly inappropriate, if not also unlawful”.[4]

Social media is a jungle. Careful what you say, you cannot guarantee where it will appear. Dismissal for this content can be embarrassing.

What about posting out of hours?

Social Media & Misconduct

As decided by Fair Work, the employer only has the right to extend supervision over the private activities of employees in exceptional circumstances. In Rose v Telstra, three circumstances were reaffirmed by Fair Work. These are:

  • That the conduct by the employee, objectively must be likely to result in serious damage to the relationship between the employee and employer; or
  • That the conduct damages the interests of the employer; or
  • That the conduct is incompatible with the employee’s duty as an employee.

Therefore, as social media is evidentiary in nature, meaning there is proof of what one posts, it is likely that supervision can be extended to out of hours conduct in regards to social media.

Differential treatment in dismissal case

The Fair work Commission may take into account differential treatment of the Applicant compared to other employees. [7] In Fagan v Department of Human Services, the Commission found that the conduct of 2 employees was comparable and that there was in fact differential treatment. Therefore, the dismissal was harsh in the circumstances.[8] The Applicant would have to prove that another employee made similar comments or comments that offended another employee, and was not terminated for doing so.

However, as the Applicant had received formal warnings for derogatory and sexist comments in the past, this would mitigate the argument of differential treatment.

Social media brings a lot of benefits. It allows people to keep in touch. This is supposed to be in a positive way. Not employees back stabbing each other. It starts to break down the trust between the various parties. Disciplinary action and dismissals are common. Employers see the comments, its them no choice but to act.

Considerations in dismissal case

Fair Work Queensland also considers work performance or history, and procedural fairness. The impact of the dismissal on the employee’s personal or economic situation. These matters may help the Commission determine whether termination was harsh, unjust or unreasonable in the circumstances.

Summary Dismissal

The Applicant was summarily dismissed as a result of the serious misconduct. A summary dismissal is the harshest form of termination of employment. When a person is summarily dismissed they are not given notice or payment in lieu of notice period. They may also have their entitlements removed. Therefore, Fair Work in Queensland may consider the harshness of this type of termination in proportion to the misconduct.

Social Media & Misconduct

After more than a year of working from home and relying on social media more than ever as a form of communication, we should be aware of its permanency and its implications in the professional sphere of our life. Cyberspace is an extension of our actual life and therefore, as Fair Work has stated, an employer’s code of conduct is applicable to social media in the same way as it would be in person. If allegations of serious misconduct have been issued against you, get advice

We are A Whole New Approach P/L, we are not lawyers, but leading workplace advisors, have a question, concerns, just want to chat, give us a call, advice is free, prompt, confidential.

Its a matter of human decency, we should treat each other with respect. Racism, sexism, discrimination has no place in Australian workplaces.

Top 10 social medial comments employees get dismissed for.

We receive 100’s of calls every month on this subject, so we think we are in the position to give you a list of the reasons employees end up suspended / dismissed.

  1. Conspiracy theories regarding vaccinations and the workplace
  2. Nazi and Hitler type comments about their manager or supervisor
  3. Sexualized type comments about female co workers.
  4. Inappropriate pictures regarding co workers and managers.
  5. Deliberately giving the company or its services and products a one star google rating.
  6. Discussing of salaries and conditions of employment in open forums
  7. Comments about husbands or wives or partners of co workers or management.
  8. Divulging confidential information on line about workplace investigations
  9. Discussing other staff mental or physical illness.
  10. Telling everybody they hate their job, why this is, the companies BS and they are leaving

Conclusion to Misconduct & Social media

I hope this article has been of some benefit or interest to you. The whole social media platform is maturing. The social media giants are slowly bowing to pressure to clean up there act in regards to some subjects and commentary. This then raises the question who decides our democratic values?. Who gets to play censor?. That’s a whole different question. All I can say is stay safe, keep your reputation in tact. Of course have your say, just don’t get dismissed or sacked over putting something “on line” your possibly going to regret.

We are A Whole New Approach, anything to do with workers rights, workplace investigations, of course social media, or toxic workplaces, give us a call. We work on a national basis.

Call 1800 333 666, its free, confidential and prompt

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Can I be dismissed for not having the flu shot in NSW?

Can-I be-dismissed-for-not-having-the-flu-shot-in-NSW?
Carefully consider your stance, before you get dismissed or to avoid dismissal

Can I be dismissed for not having the flu shot in NSW?

This question has taken on a increased prominence. following on from the controversy of the COVID-19 mandatory vaccinations by the government and companies. These are playing out daily in the courts. We are still getting calls and dismissals on this. Why NSW the focus of the article. As you would be aware each state has its own health department. In turn own regime of rules and regulations. It was pointed out by the ABC, when the RAT tests came in, what is relatively simple procedure every state had a different protocol to follow. So Can I be dismissed for not having the flu shot in NSW? is relevant. NSW is the strict on the flu vaccine culture.

As we are approaching winter and the flu-season, many of us ask, can my boss make me take the flu shot?

Dismissed over health issues, can be very controversial. The case of Kimber v Sapphire Coat Community Aged Care Ltd [2021]. Was recently heard by the Fair Work Commission in NSW. In this case, the Applicant was a receptionist in a community-owned, not for profit aged care group. The Applicant worked at one of their facilities, which was a high-care aged care residential facility, comprising of 89 beds.

The Applicant claimed that she was unfairly dismissed as she did not want to receive the flu vaccine after experiencing a reaction in 2016. In previous years, this was accepted by the Aged Care in NSW as there was no legislation inducing compulsory vaccinations for its staff or any person entering the premises.

Everything has changed in the workplace, since the pandemic

Why are things different now?

2020 saw the Aged Care system in NSW on the brink of collapse due to COVID-19. In turn the NSW government enacted a Public Health Order regarding all people who work in an aged care facility. As well as all attendees or visitors to be vaccinated for the flu. The Aged Care Industry is exceptionally vulnerable, and has been highly scrutinized as a result of COVID-19, especially in states such as NSW.

The Applicant, just like other staff who did not wish to be vaccinated against the flu were dismissed by their employer unless they had a “medical contraindication”.  The Applicant argued that she did have a medical exception. However, Fair Work found that the Applicant did not demonstrate a medical report to her employer at any point in time. Therefore, leaving them to believe that she did not have a valid medical exemption for the vaccination as she did not present legitimate proof. The Applicant provided a letter from a medical practitioner stating that she “would prefer not to have the flu vaccine”.

Furthermore, the Federal Government’s, Department of Health suggests that the only valid reasons for medical contraindication to the flu vaccine is anaphylaxis reaction, Guillain-Barr Syndrome or certain cancer treatment drugs.

We-have-to-take-care-of-the-aged-and-the-vulnerable-and-our-work- colleagues
We have to take care of the aged and the vulnerable. Whether it impacts on you or not

Does this constitute unfair dismissal in New South Wales (NSW)?

The Fair work Commission in NSW found that there was a valid reason for the Applicant to have been dismissed as she was unable to perform the inherent requirements of her role without having a vaccine, as she was not permitted to enter the premises without having an up-to-date flu vaccine. Therefore, this did not constitute unfair dismissal and the Commission were not satisfied that the dismissal was harsh, unjust or unreasonable.

Valid reason for dismissal

One of the criteria for considering harshness as per s 387 of the Fair Work Act 2009 is whether there was a valid reason for the dismissal. Relating to the person’s capacity or conduct (including its effect on the safety and welfare of other employees. Capacity was defined in Walton v Mermaid Dry Cleaners Pty Ltd [1996]. As the ‘employee’s ability to do the job as required by the employer. By not being able to enter the premises, the Applicant was unable to perform the inherent requirements of her role. This being reception, therefore the requirements for unfair dismissal were not satisfied.

Is this an indicator of what the Fair Work Commission’s approach will be to COVID-19 vaccinations?

This case was decided in 29 April 2021, just before the general public were eligible for vaccinations for COVID-19. Therefore, it is reasonable to assume that in industries such as Aged Care and Childcare, state governments may enact Public Health Orders similarly to that of NSW including a clause for COVID-19 vaccinations. The Commission will then have to consider the employer’s responsibilities within the Public Health Order as well as the rights to the employee.

Sometimes you have to fit in for the collective good. Australia is a nation the size of Western Europe. It has 200 different nationalities and religions. All have differing views. (that’s their right). However we are all part of team Australia, sometimes compromises have to be considered.

Fair work role

It is important to know that the Fair work Commission’s role is to see if the dismissal was harsh, unjust or unreasonable. If an employer has to do something by law such as ensure all staff are adequately vaccinated against the flu. It is not harsh, unjust or unreasonable to terminate someone unless they have a medical exception. This is because the rights of the public as a whole will be taken into account by the implementation of such a Public Health Order in NSW.

I cannot have the vaccine, as I have had a reaction before, what do I do?

If you are unable to have the flu vaccine as you have previously had reactions. It is crucial that you see your medical practitioner and obtain a medical certificate outlining that you have a medical contraindication to the vaccination against influenza. Therefore, this would fulfil the exception requirements of the Public Health Order. As mentioned above, there are only three absolute medical contraindications as listed by the Department of Health in Australia.

Therefore, it is likely that medical practitioners will be reluctant to write an exception unless one of the accepted contraindications can be proven. Therefore, unfair dismissal in NSW for refusing to have the flu vaccine is not feasible.

Everybody is entitled to feel safe in the workplace. Should co workers be vaccinated so you don’t get the flu? Should they be dismissed if they don’t? There is no one answer. Its a case by case basis

We are A Whole New Approach P/L , we are not lawyers but leading workplace advisors, been dismissed?. Subject to adverse action?, forced to resign?. We champion workers rights. We are proud of our staff and the outcomes we get for our clients. Anything to do with the workplace give us a immediate call. We are here to help. We keep it real, honest. All states, NSW, VIC Qld, SA, NT, WA, Tas

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Misconduct Dismissal Due To COVID-19


Misconduct Dismissal Due To COVID-19

Over the past year, the Fair Work Commission in Victoria has been inundated with claims associated to COVID-19. Asnew policy and procedures that employers have enacted in order to create a COVID-Safe environment. Unfortunly some employees also use the pandemic as an excuse to take advantage of employees. This includes dismissing employees falsely for misconduct. This has led in a increase in unfair dismissal and general protection claims at the FWC. Misconduct Dismissal Due To COVID-19 takes various forms.

Was unfair dismissed

A casual disability worker in Victoria claimed she was unfairly dismissed by her employer. This is when she breached the temperature check procedure after recording a high temperature but continued to commence her shift. The Fair work Commission found that this was a valid reason for dismissal and was duly satisfied that the dismissal was not harsh, unjust or unreasonable. Fair Work Victoria, presided by Deputy President Mansini, heard the case of Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244 on 9 March 2021.

Context is important

Context is important when it comes to workplace disputes. In 2021, Victoria suffered its fair share of COVID-19 cases and outbreaks in health facilities. The media scrutinised the public health response to a great extent. Therefore, when Company’s put in place protective measures against COVID-19, Fair Work in Victoria found no reason for there to been an unfair dismissal case. As the worker would have willfully been aware of the need to comply with such regulations and to take precautions when working in a vulnerable setting.

You know you cannot act this way. This is a very simplistic way of looking at what goes on in the workplace. some employers are like crocodiles sitting on the edge of the river. All the patience in the world, watching you. Then they attack by stealth, quietly and before you know it your dismissed and out the door. So do not put yourself at risk.

Must establish whether serious misconduct was willful or deliberate

The Fair work Commission in Victoria must establish whether serious misconduct was willful or deliberate. Is inconsistent with the continuation of employment with the employer.[1] This is because the disability worker’s contract stipulated terms that required its employees to adhere to certain health and safety policies. The FWC was satisfied that this constituted a valid reason for dismissal in regards to conduct and was not harsh, unjust or unreasonable and therefore, the Applicant was not unfairly dismissed.

Lack of insight into the conduct and failure to take responsibility

Another case in Victoria, where serious misconduct resulted in a dismissal was the case of Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341. The Applicant was dismissed in February 2020 for serious misconduct involving inappropriate conduct of a sexual nature towards student both physical and verbal. Furthermore, the difference in this case was that the Applicant had previously received warnings for conduct of a similar nature when he posted on social media.

The Commission did find that the investigation process was unfair and did not comply with procedural fairness. However, Fair Work Victoria, found that the Applicant’s ‘lack of insight into the conduct and failure to take responsibility’ outweighed the procedural unfairness. Therefore, the dismissal was concluded to be neither harsh, unjust nor unreasonable.

Standard of proof

It should also be noted that as per Briginshaw v Briginshaw, the standard of proof remains to be on the balance of probabilities. However, the more serious the alleged misconduct, the stronger the nature of the evidence must be.[2] (Many employees think the company need the video, the confession, the DNA like on television this is the criminal test.)

In the case of the disability worker, the Applicant was summarily dismissed. A summary dismissal takes place when the misconduct is extremely serious. The dismissal then has the capability to be effective immediately without notice or payment in lieu of a notice period.

In certain circumstances, Fair work Commission may look to the proportionality of the misconduct in relation to a summary dismissal. In the case of Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244, the court was satisfied that in proportion to the misconduct, a summary dismissal was not harsh, unjust or unreasonable.

Sometimes the employer behaviors’ in such a way, to get a reaction from you. You react, swear, get loud, walk forward. Then they dismiss you for serious misconduct. When all you wanted to do was defend yourself, perhaps just trying to make a point.. Some employers let others or the manager to act in such a way to get you to react. Don’t react, go to HR, you have rights at the Fair work Commission, call us.

Tougher approach to misconduct

Furthermore, the two recent decisions in Victoria by the Fair work Commission suggest that the Commission is taking a tougher approach to serious misconduct. That this may in turn result in more dismissals from serious misconduct investigations. Especially in industries where there is a high standard of duty of care towards clients, students or patients. Therefore, remorse and responsibility, two moral values play a significant role in the legal outcomes of serious misconduct dismissals in Victoria.


I hope this brief article Misconduct Dismissal Due To COVID-19 has made you more aware of pitfalls of serious misconduct and current trends. It goes without saying being dismissed for serious misconduct can be hugely determinable to your career and reputation. As the pandemic progresses, everybody is stressed, cranky, uncertain. I have notice that what a lot of employers in the past would tolerate, not care less about, employees are now dismissed. Peoples fuses are getting shorter.

Of course the employer has the financial incentive to use serious misconduct to dismiss employees. They don’t have to pay notice, long service leave. In many cases then also refuse to pay relocation cost because you breached the employment contract. Disgraceful behaviour. Want further clarification?, or confused?, concerned for your job?, your career?, give us a call, its free 1800 333 666 , we are happy to assist.

We are A Whole New Approach, P/L, we are not lawyers, but the nations leading workplace advisors. We are here for you, anything to do with the workplace call us. Fair work matters, abandonment of employment, sacked, bullied. we are experienced, prompt, honest, we keep it real. All states, NSW, Vic, QLD, SA, WA, Tas.

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[1] Edwards v Justice Giudice [1999] FCA 1836

[2] Briginshaw v Briginshaw [1938] HCA 34

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