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.

Dismissal email says “you’re an unbalanced parasite with a god complex”

you-cannot-be bullied-or threatened-in-the-workplace
Dispute take many forms. Rarely is there a clear and obvious abandonment of employment case, that’s its a straight forward dismissal

Dismissal email says “you’re an unbalanced parasite with a god complex”

Abandonment of employment as a reason for a dismissal is notoriously messy as the following case demonstrates. Please read on, there’s lots to learn

But was it a case of abandonment of employment?

A curious case of ‘he said, she said’ came before the Fair Work Commission in January 2022. It involved an employee who believed he’d been unfairly dismissed. This was via an email in which his employer gleefully noted. Among other unsavory sentiments, that they were looking forward to seeing him “cuffed and dragged off to jail.” The employer, however, contended that the case was not one of unfair dismissal, but rather abandonment of employment.

Let’s look at how the disagreement arose. The arguments presented by both parties. How the Commission came to a decision on whether it was a case of unfair dismissal, or abandonment of employment.

The employee receives a “threatening” email accusing him of corporate sabotage

The employee, a manager responsible for administration tasks, said that he hadn’t received an official notification of dismissal from his employer. However, his employer had locked him out of the company IT systems. In turn barred him from making calls on his phone.

The man said he was then “advised” by his employer that he was “suspended.” Thereafter, his employer sent him an email which he characterised as “threatening,” wherein he was accused of corporate sabotage. Critical to refuting his employer’s claims of abandonment of employment, the employee asserted to the Fair Work Commission that he was dismissed via this email. He highlighted that the email indicated “a clear breakdown of the [employment] relationship.”

Wheels of justice turn slowly

Excerpts from the email, which featured the subject line “the wheels of justice turn slowly but exceedingly fine,” read thusly:

“As amusing as it is that I’m free rent [sic] I’m living rent free in your head (and the bonus of not having to juggle an unbalanced parasite with a god complex) … it’s only fair that I give you a heads up.” “You’ll be like a trophy. Finally you will be an icon, indisputably infamous and a case study for law students.” “At this point, the combination of all the different things you have done (extortion) and the insane amounts you have done it – you might as well go for broke.”

“The downtrodden and defeated look on your face as you are cuffed and dragged off to jail for who knows how long in a bad fitting second hand suit some charity will loan you will be quite a scene.” “I’ll see you when I’m on the stand giving evidence against you.”

The employee subsequently made an unfair dismissal application with the Fair Work Commission.

employee-wondering-if she-has-any- work
Employee wondering if she has any work. Its unclear if she has a job or work.

The employer denies dismissing the employee, alleging abandonment of employment

In the unfair dismissal hearing, at the FWC the employer denied the employee’s claim that he was unfairly dismissed. It argued that the employee was guilty of abandonment of employment, noting his “behaviour and performance issues.”

Rather than having dismissed the employee, the employer claims that he was placed on leave. This came after the employee expressed that he was “feeling overwhelmed” during a phone call. This admission led to the employer offering to meet with the employee to discuss his behaviour. A meeting which the employee failed to attend. Thereafter, the employer claims he “refused to attend work or engage in a conversation.”

The Fair Work Commission rejects abandonment of employment claim

The Commission ruled that the “threatening” email which the employee had received was tantamount to a dismissal. It found that it was “in a tone sufficient to make clear the employment relationship was at an end.” The Commission also noted that leading up to the email, the relationship between the two parties had been “under severe strain.”

Ultimately, the Commission rejected the employer’s claim of abandonment of employment. Instead, it found that the employee had been unfairly dismissed, describing it as “harsh” and “unreasonable.” It noted that the employer didn’t adhere to legal requirements when dismissing him. This included not providing the employee with a proper opportunity to respond to the reasons for his dismissal. The Commission also found that there was insufficient evidence to justify the employee’s dismissal, and that he wasn’t paid according to his contract.

Given the hostilities between the two parties, the Commission decided that reinstating the employee wasn’t appropriate. He was instead awarded compensation.

Trying to figure out, why the employer dismissed him, when he didn’t receive the text message to come to work

What classifies as abandonment of employment?

In the aforementioned case, the charge of abandonment of employment against the employee was effectively rendered moot. Namely, because the Commission found that the “threatening” email in fact communicated the termination of his employment. But had the Commission not determined that the email was notice of dismissal, would the employee have been found to have abandoned his employment?

The definition of abandonment of employment

According to the Fair Work Ombudsman, abandonment of employment is when an employee doesn’t turn up for work for an unreasonable amount of time. The employee doesn’t have a reasonable excuse for their absence, nor speaks to their employer about being away. Also, the employee must have made it clear that they no longer have any intention of being bound by the terms of their employment contract. This results in what is called a ‘renunciation’ of the employment contract.

In the aforementioned case, the employer offered to meet with the employee to discuss the difficulties he was having while performing his job. However, the employee failed to attend this meeting and thereafter, according to the employer, failed to attend work or engage in conversation. So, is this enough to constitute abandonment of employment?

Dismissal-email-says-"you're-an- unbalanced-parasite-with-a-god- complex"
Some employers deliberately don’t inform you when you have to come to work. They set you up to justify the dismissal by way of abandonment of employment

When an employee is absent without reason, what are an employer’s obligations?

The Fair Work Ombudsman states that “an employer should make all reasonable attempts to contact an employee who they think may have abandoned their employment.” This is because much of the time, abandonment of employment is simply a misunderstanding between the employee and their employer. Often, an employee genuinely can’t contact their employer for a range of reasons. Like for instance, being involved in a car accident or the sudden onset of illness.

The steps employers must take to contact an absent employee

The employer must make attempts to get in touch with the employer via phone, email or fax. They must also document all their contact attempts in the employee’s personal file. This means including any emails or voicemail messages.

Once initial contact attempts are made, and the employer receives no reply. It must then attempt to send a letter to the employee. In the letter, the employer must ask the employee the reason for their absence. If it’s the result of a medical condition. This can be done via post or email, and if the latter, the employer must ensure they have their automatic sender notification activated.

If the employee replies, stating that their absence is the result of a medical condition, the employer must ask for evidence. If the employee provides a non-medical reason for their absence, the employer must ask what their intentions are regarding their employment.

Dismissal-email says-"you're-an- unbalanced-parasite-with-a-god-complex"
There can be a lot of confusion around part time and casual workers and their hours. Rosters and advice to employees gets misinterpreted all the time. You should not be dismissed if its not your fault.

If all else fails, an employer must make one last attempt

If an employee fails to reply to any of these communication attempts, the employer must send another, final letter via post or email. This letter must:

  • Describe all attempts made to contact the employee. This includes whether they were made by email, text, phone calls or post. Also, the dates contact was attempted, and the details of any messages left or correspondence sent.
  • State that if the employee fails to make contact or provide a reason for their absence by a specific date (determined by the employer). The employer will determine that the employee has abandoned their employment.

Has your employer unfairly dismissed your employment, citing abandonment of employment?

Scenarios where abandonment of employments issues arise that lead to a unfair dismissal.

  1. Extended illness. (local, or your stuck overseas)
  2. Injury and workers compensation.
  3. Maternity leave, back to back pregnancies’, exceeded leave
  4. Long service leave.
  5. Study tours and extended overseas holidays.
  6. Workplace investigations that extend for months.
  7. Suspensions, and the employer doesn’t get back to you
  8. Relocations that are unclear (start date, broken period of service, inadvertently dismissed etc).
  9. Part time and casual workers. Where the work seems to disappear for unlawful reasons and your just waiting at home.

Abandonment of employment is used as a sort of “get out jail card” by employers. They say. “look you just stay at home and we’ll be in touch’. “Things are quite at the moment, stay home, we’ll give you a call.. “Once the investigation is finalized we’ll be in touch”. The list is endless, but what they all have in common is the employer doesn’t ring you. Doesn’t take your call. Then blames you for abandoning your job.

Be aware there is a strict 21 days to lodge a claim at the Fair work Commission. The concern in allot of circumstances is 21 days from when? Last day of work?, last day I got paid?, the day I finally realized they are not getting me back?. Ring us, immediately, the 21 days is ruthlessly enforced regarding your dismissal.

Dismissal email says “you’re an unbalanced parasite with a god complex”

If your employer is claiming that you have abandoned your employment, but has not followed the aforementioned steps. Give us a call on 1800 333 666. Our friendly team of unfair dismissal experts can provide you with a free initial consultation to see if you’re eligible for an unfair dismissal application. Or determine what other course of action may be appropriate. We manage all Fair work Australia matters, workers rights, casual employees, toxic workplace culture. AWNA work on a national basis.

Dismissal email says “you’re an unbalanced parasite with a god complex”

Abandonment of employment, how to avoid it, click here

Dismissals, 15 options you should know about click here

Procedural fairness in workplace investigation, click here

Questions and answers, click here

Post dismissal behaviour


Post dismissal behaviour

If you try to search up anything relevant to what happens after being dismissed, chances are you would be directed to websites listing information on pursuing legal actions against your former employer. Or any “motivation tips” on how to get yourself back up in the job market. But what are the impacts of dismissal on employees? How does it affect the way people behave after being dismissed? Post dismissal behaviour has to be a consideration in employees moving forward.

We know about the psychological impact led by the grief of being dismissed or being forced to resign from a job. Such as the development of mental health related issues like anxiety and depression. We also know about the financial impact of losing your income. How affording, your grocery, paying for your bills and repaying your debts or mortgage become struggles. In some cultural groups the shear embarrassment of losing the job.

Extreme behaviour

We have had clients suicide, numerous have had nervous breakdowns. These outcomes have to be avoided at all cost. On the other side we have seen employees take the law into their own hands threaten the ex employer, or take to social media in the most abusive way. Employees turn a legitimate unfair dismissal case into a mess. There are numerous Fair work Commission (Fair work Australia) decisions that consider post employment behaviour as part of the decision making process. Or as a consideration in the calculation of compensation.

There have been decisions where the employee has won the unfair dismissal case and be awarded nothing because of their behaviour after they were dismissed. The FWC unfair dismissal decisions are usually a public document. What potential employer wants to read about an employee applying for a job’s behaviour after they lost their job last time?

Being blamed, being dismissed

Impact of dismissal

However, there seems to be a lack of qualitative study done looking into the impact of dismissal in shifting the way people behave. The certain post-dismissal behaviors exhibited by people who have been dismissed from their jobs.

The grief of being dismissed is often associated with the feeling that they have been done “wrong” by their employers. That the dismissal is unfair, and their employers are using excuses to get rid of them. The only reason because of their personal bias or discriminatory belief. This can be the case, and under such circumstances employees can seek entitlements by lodging the relevant unfair dismissal or general protection applications to the Fair Work Commission. Or other discriminatory bodies, including the federal (AHRI). You would be shocked at how many articles you can find on google for “tips on firing people”. Or “how managers make unwanted employees go away”. 

The perception that they have been done wrong generates the desire for these ex-employees to seek justice for themselves. To get revenge from their employers. Some people look to legal revenues to seek justice by taking the employers to the Fair Work Commission or relevant bodies. Others resort to other revenues, potentially violent and / or illegal behaviors, to outburst their agony for allegedly being treated unfairly. (as previously mentioned).

Taking legal actions

A recent example of ex-employees taking their employer to the court can be seen in the case of Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873 where ex-staffers who were made redundant had united to pursue a class action against Qantas Group.

Qantas, among other airline companies, had been gravely impacted by the shutdown of travelling due to the global pandemic. The Qantas Group incurred a substantial loss with international flights being cut down. As result, in August 2020, the company first announced the possibility of outsourcing its remaining ground-handling operations to third parties.

The decision was later confirmed by the company at the end of 2020. With about 2,000 Qantas staff being made redundant. Strangely enough, many of the staff who had been “made redundant” under the plan were members of the Transport Workers Union of Australia (TWU). With their enterprise bargaining agreement due to open for renegotiation around the time they were made redundant.

General protections claim

An action was brought by the employee’s union group (TWU) against Qantas Group under the FWC General Protections regime. General Protections are protections that employees are entitled to under their employment, and the employer cannot take adverse action against the employee due to a protected reason. In this case, the adverse action was reflected in Qantas’ decision to make the employees redundant.

The adverse action was alleged by the TWU to be taken to avoid the need to negotiate. To deal with the employee’s union as their enterprise bargaining agreement expired later that year, which would be a protected reason. Employees under the enterprise bargaining agreement would engage in a process of negation with their employers, accompanied by their representatives, about the terms of their employment. Employees exercising their rights to negotiate and engage with representatives would be protected under general protections from any adverse action carried out by their employers.

Fair work Australia regime or Federal court, their all strict

Compensation or reinstatement

Some ex-employees consider legal action against the employer in the hope of monetary compensation. They know that there is no prospect of returning to the company, but they want their entitlements from the company to do their justice. However, this General Protections claim against Qantas Group initially aimed to seek reinstatement of the staff who had been let go. Despite the unfair treatment, the staff considered injustice could be undone by restoring them to their original positions. That they had never been made redundant and could still keep their income.

Justice Lee in the Federal Court ruled that Qantas Group had failed to disprove that the cause of its decision to make the staff redundant. (in general protection claims reverse onus applies).That it was not to avoid dealing with the staff’s union and re-negotiating their agreement in relation to their enterprise bargaining agreement. Justice Lee also commented on Qantas’ behaviour, saying that Qantas should not “get away” with its wrongful conduct. In this sense, consider justice done for those employees being treated unfairly.

However, the employees’ quest for reinstatement was denied by the court. This was because compensation was considered a more appropriate remedy for the staff. So, is justice restored, noting that the employees’ desired outcome was rejected by the Federal Court? This decision has been appealed by the TWU.

Illegal action

The scenario between redundant staff and Qantas Group may not always be the case. Each case raises or falls on its own merits As some ex-employees may have a weak claim against their employers, or even have no case against the employers if they are dismissed based on valid reasons. These employees cannot get the “justice” they call for by taking legal action. Alternatively, some employees simply cannot afford to initiate legal proceedings, as legal actions can be stressful and costly.

They have to rely on other revenues to seek vengeance from their ex-employers. In some extreme cases may involve illegal actions. For instance, a UK man planned a revenge cyber-attack by hacking the company’s computers and blackmailing his ex-boss after being dismissed. On another occasion, an ex-employee in Brisbane sought revenge for being dismissed by facilitating theft against the employer. Illegal behaviors are obviously not encouraged and should be condoned. Lets be honest we are no longer in the wild west.

Getting another job

Conclusion to Post dismissal behaviour

I hope some of the article on post dismissal behaviour has been of some assistance for you. I know the focus is getting another job, paying the bills, I get that. All information can be helpful. Even if one line in this article helped, I’m glad. If I can be of assistance, you welcome to call me. My name is Gary Pinchen. We are leaders in workplace commentary, and representation. Want advice, call, its free, prompt and confidential.

Call 1800 333 666

Articles similar to Post dismissal behaviour

Redundant employees, is there justice in the FWC, click here

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Trash day (unfair dismissal), employer playing god, click here

Redundancy now and the future, click here

Workplace whistleblowing

Toxic workplaces and being forced to be a whistleblower come in all shapes and sizes. There is a sinister underbelly to some of Australia’s largest companies.

Workplace whistleblowing

Whistleblowing in the workplace has become one of the most powerful ways of gauging the public’s attention. Shedding light on corporations’ wrongdoing, especially with the high-profile revelation of Facebook’s unethical behaviors by its ex-employee. For people who have been dismissed, especially when they feel like they face injustice from the company, whistleblowing can be seen as an effective outlet to air the company’s “dirty laundry”. By exposing toxic behaviors to the public and to right what has been wronged.

Dismissal and whistleblowing

For a lot of the employees who have been dismissed, they consider themselves as victims of toxic company culture such as bullying, unjustified warnings, unnecessary threats of dismissal sexual harassment and racism. Recently, allegations against Virgin Airline’s workplace culture have come to the spotlight. As the ex-chief pilot publicly accused Virgin’s CEO of bullying behaviour after being dismissed. In another case, an African American employee went against Tesla in exposing the company’s culture of racism.

Many and many ex-employees have attempted to come out to reveal toxic or discriminatory company culture via the media. Social media platforms have also become ways for ex-employees to tell their stories in unfolding the unfair treatment they are subjected to by the employers. This is a dangerous game, that creates uncertain scenarios. Employers are increasingly dismissing

employees for this behaviour, and countering with defamation claims.

Most companies have social media polices, which is a way of indirectly shutting the employee down from using the social media as a forum to whistle blow.

Whistle Blow legislation

The Corporations Act 2001 (Cth) (Corporations Act) and the Taxation Administration Act 1953 (Cth) both contain protections for whistleblowers. Amending legislation that came into effect on 1 July 2019 strengthened the protections in these Acts. This factsheet focuses on the strengthened protections under the Corporations Act.

You can learn more about ASIC, if you click here, Download a complaint form, click here

Safety is the largest area of whilst blowing, Employees cannot stand by and watch co workers be injured and potentially killed.

Whistle blowing limitations

However, the power brought by whistleblowing has limitations. Revealing a company’s alleged wrongdoing is only effective when it gains public attention. If you are exposing a local small business’ toxic workplace culture or misdeed, not a lot of people would be interested in the story or care about it enough to affect a change. For bigger corporations, the exposé can attract media attention and public awareness. But you can potentially backfire by facing defamation claims brought by your ex-employer. That your whistle blowing act contains untrue statements against the company and damages the company’s reputation.

Note that bigger corporations would be inclined to put pressure on any whistle blowers with court action. Considering they can afford to do so with all the money and legal resources. Large corporations also have more incentives to employ fear tactics or intimidations to scare people from carrying out any whistle blowing acts against the company, in fear of reputational damages. Threats of dismissal is common place

For example, it has been revealed that the boss of BrewDog, a multinational brewery, attempted to intimidate former staff from unmasking the brand’s toxic culture in a critical documentary. Ex-employees often feel that they are at a disadvantaged and powerless position in going against big corporations. Another example of this is TV stations, owned by large corporations. They at times come out with outrageous programs, news stories. On occasions setup’s, absolute breaches of privacy. Of course the public love it, ratings are up. Who’s got the money to take them on?.

Look at the show “cop’s”, RBT, “highway patrol”, the only cars the police pull over are poor whites and poor blacks in low economic suburbs. Of course they don’t have the money to fight back. What rich people in BMW’s don’t speed?, give me a break.

Its in the workplace

We see this in the workplace its a form of “unconscious bias”. As it was referred to in the Victorian Supreme court, by Justice Richards in a recent case on rights in the workplace to the same pay for females. 80 percent of our enquires (10,000 a mth, we know what we are talking about). Are from working class western or outer suburbs around, Brisbane, Sydney and Melbourne. This cannot be a coincidence. If the employer is going to bully, dismiss, underpay, sexually harass. They don’t pick the richest employee in the office that for sure.

A lot of firms, including us, do no win, no fee work. However employees still need to survive while their unfair dismissal or general protections claim is processed, settled. We see this with sexual harassment claims where employees take early settlements, below what there claim is worth, they need to survive. Whistleblowing the same, do I face potential dismissal because I want to stand up for everybody? Or do I continue to pay the bills. That’s why a lot of whistleblowing claims are lodged after employees are dismissed. Nothing to lose now.

No incentive to investigate

On the other hand, what much can be done by uncovering these misconducts or toxic cultures anyway? Large corporations are no strangers to any toxic workplace allegations, including Rio Tinto and Sony Music, just to name a few. However, there has been a lack of action being done to mitigate these concerns of toxic workplace. We are yet to see any proper inquiry into toxic workplace culture led by any relevant official bodies.

Big companies are not incentivized to investigate and address any issues related to their toxic work environments as they do not consider these actions to be cost-effective. Alternatively, the toxic traits may be embedded in the company’s culture enabled by higher managerial level. A simple act of whistle blowing by ex-employees may not be powerful enough to affect corporate systemic changes and bring justice, more needs to be done.

Employees are choosing where to work

Interestingly employees when looking for work, changing employers, are looking past just the salary when deciding where to work

Many times you just feel like walking away. Maybe its the best thing to do, maybe it isn’t. Get advice before you press that button

Workplace whistleblowing

I hope this article was of some assistance to you. You certainly will have that feeling like your on your own. Your always welcome to give us a call and discuss where your at. We are A Whole New Approach, leaders in workplace commentary and representation. Facing dismissal for raising your concerns, feel your being forced to resign. Facing a workplace investigation call us immediately. Advice is free, prompt and confidential. We work Australia wide.

Call 1800 333 666

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Dismissed and the harmful effects.

People just want to go to work and be happy

Dismissed and the harmful effects.

People want to go to work and feel secure./Most employees rely on the employer to take care of them. Provide then with work, get paid. Feel safe from injury. Feel socially connected. So when this is taken away from them it can be devastating. State and federal governments have studies for anything and everything. If a insect is suffering in the bush somewhere there’s money and resources for it. There has been no large scale study on the impact of employees losing their job. If there was then government’s would have to deal with it, resole it. Just leave it alone seems the answer. The 2022 election campaign. No promise by either side to look at the issue. Dismissed and the harmful effects, I’m prepared to discuss the problem head on.

You have been dismissed

Let’s imagine a scenario. You were a hard-working employee at your stable job. You had a positive working relationship with your colleague. You’re dedicated to your role that you would go above and beyond to fulfill your duty. You had never received any negative feedback or warning. You thought you would be staying in this position for a while. Then out of nowhere, you were called into a meeting in the middle of work.

You walked into the meeting room and saw your manager’s face. Maybe HR was there too. You quickly sensed the intense and serious atmosphere, as if something bad was coming. “Oh no,” you thought, “did I do something wrong to upset the manager? I wouldn’t be fired, would I?”

Your employment has been terminated

Stressed and worried, you sat down and prepared yourself for the worst. What happened next just became a blur to you. Words started to come out of their mouths. “Unfortunately…regret to inform you…after careful consideration…your employment has been terminated…” You were shocked, you did not really see it coming. You tried to process what was happening, only to realise a few moments later that you had been dismissed. Your whole world had been shaken upside down. After the initial shock, you were hit with the mixed emotions after realizing losing your job, including the feeling of embarrassment, humiliation, stress and anxiety.

You may find the simulated scenario not very far from real-life experiences. Unfortunately, the above scenario occurs on a daily basis for employees, with thousands of people being dismissed from their job suddenly. Being dismissed from a job is ranked 8th among the top 10 most stressful life events. It comes with a lot of adverse effects particularly in one’s financial and mental health aspects.

All dismissals are terrible

Financial impact

Losing your job means losing your income. For many people, this can be life-threatening as they rely solely on their salary to support their living expenses. Survival becomes an issue, when you still have to pay for food, for rent, for bills without income. You can only rely on your savings to support living for so long – once your saving runs out, putting food on the table would be such a struggle.

In fact, for many young workers who live paycheck-to-paycheck, financial strains would become an issue quickly after being sacked. For people with mortgages, they encounter the additional stress of not being able to make mortgage or debt repayment, in the fear of having their mortgage defaulted and having their homes being taken away.

Government unemployment support may be available to some, particularly the JobSeeker scheme implemented since the start of the pandemic. However, a single unemployed person is only entitled to $565.70 JobSeeker Payment per fortnight. For many people, this amount of payment only suffices the bare minimum of living expenses, not to mention the ongoing inflation that hikes up product prices.

The JobSeeker scheme also imposes an obligation on beneficiaries to actively engage in job seeking activities and accept any offer of suitable paid work. This can impose pressure on workers to accept job opportunities that are not a fit for their skill sets.

Mental health

Being dismissed from a job can trigger many negative emotions that detrimentally impact your mental wellbeing. Firstly, the anger and humiliation that come from being fired from a job suddenly. For some, they may be fired unlawfully due to prejudices or discrimination held by their employers. For others, they may have foreseen the dismissal with their unsatisfactory job performances or misconducts.

Even so, they can still experience shock and anger triggered by the sudden termination of their employment despite seeing it coming. Since dismissal includes losing something valuable like a job or stable income, mourning and losses also frequently occur. That is, people tend to also experience grief after being terminated.

Aricia Shaffer, a career counsellor and former psychotherapist, commented on grief related to losing one’s job:

Grief can be a very real response. The depth of the grief and how it plays out depends on the individual’s reliance on their work environment for their sense of worth as well as for their social needs. If work is their entire life, it can be devastating

Aricia Shaffer
Dismissed, on the way out

There is a level of grief

Grief can open the floodgate for many other negative emotions. Self-doubt and insecurity start to surface. Being dismissed gives a hint that “you are not good enough” for the position, which can lead to a sense of failure and self-doubt. Self-doubt when viewed in a positive way, can be utilized for self-reflection to improve one’s skills or performance. However, self-doubt coupled with the crippling stress and grief can lead oneself to the deep rabbit hole of depression. Studies have found that the symptoms of depression and anxiety are significantly greater for unemployed people than the employed.

In fact, dismissal can be a cause generating mental health issues. Many signs of mild depression are common among people who had been dismissed, including social isolation, trouble sleeping, loss of appetite and loss of motivation and interest. If left untreated, these signs can quickly develop into clinical depression that have a long-term impact on one’s health.

The feeling of fear when your dismissed

Fear is also a common emotion felt by many people who lose their job, led by uncertainty about the future. Particularly, a job provides one with a secured income and a stable routine. With these things being taken away, it is natural for a person to experience emotions such as anxiety and panics.

Many people reflect this in the inability to get out of bed, following the lose of the job. when its stating the obvious, you should be up looking for work, going to the doctors whatever.

Taking legal actions

Some people may feel like they have been dismissed unfairly, which can actually be the case if their employers have not followed proper procedure to dismiss them or provide valid reasons for their dismissal. People would feel the need to defend their rights and restore justice by pursuing legal actions against their former employer.

Whether legal action would be appropriate will depend on the circumstances surrounding the dismissal, for example, was the dismissal harsh, unjust or unfair or was the employee being terminated wrongfully for a protected reason. It must be noted that despite having a claim, not everyone would be able to afford to bring legal claims against the employer – it can be costly for someone who just has lost a stable income, alongside with more stress when one associates with commencing legal actions.

Future Job hunting

Being dismissed can take a tremendous toll on your confidence in your skills and work capability. Many people face the stress about seeking future employment after being terminated, as they fear that the termination was an indication of their poor job performance, or that their future employer would not want to hire someone who has been fired from their last job.

Whether they can be rehired or not can be dependent on their luck or the demand in the current labour market. These are external factors outside of jobseeker’s control, which can add to their anxiety and stress if they are not able to secure a job. And as time passes, with job seekers being out of work for longer, they may find it even harder to secure another employment. They would also be questioned about the gap in their employment history by future recruiters, placing them in a more disadvantaged situation for being picked for any positions.

Less secured employment

Statistics show that people with less secured types of employment are more likely to be dismissed among other employees. For instance, casual workers account for two-thirds of people who lost a job during the early pandemic. People with less secured type of employment are easier to be terminated because employers would face fewer restrictions in dismissing those employees. Those employees would also have less protection for their work rights.

Small businesses are given greater discretion in dismissing an employee under the Small Business Fair Dismissal Code, under which an employer can dismiss any employee without notice or warning on the reasonable belief of serious misconduct. As a result, employees from small businesses are at higher risk of being sacked.

Race and ethnicity implication

Racism is still well and alive in Australia. Racism can still be the basis for some employment termination, although employers would attempt to cover up the dismissal with other excuses. A diversity report in March 2022 finds that 43% of non-white employees commonly encounter racism at work in Australia, with some of the racial prejudices coming from their employer. Ethnic workers are at a greater risk of unfair treatment and being unreasonably or harshly sacked by their employers.

Racism continues to place an additional burden on ethnic workers post dismissal. Dismissed and the harmful effects everybody. They would face extra difficulty in accessing government support for unemployment due to language barrier or visa status. They can be staying in Australia illegal or in the fear that pursuing legal action would affect their stay in Australia. As a result, ethnic workers are more hesitant in pursuing legal actions to protect their rights.

Compared to white workers, ethnic jobseekers would be less favourable in being selected for future employment positions due to racial prejudice in addition to their history of being sacked. All the adverse consequences of being sacked, including financial struggles, the toll on mental health, and decrease in future job aspects can intersect with the element of ethnicity in disproportionately affecting workers of diverse racial or ethical backgrounds.

Reach out for help, nothing wrong with that

Conclusion to Dismissed and the harmful effects.

I hope this article “dismissed and the harmful effects” has been helpful to you. The article is not very cheerful, but it demonstrates, understands the feelings you have. The anxiety you have, you are not alone. The feelings can be normal for the circumstances you find yourself in. I have a saying, “its not what happens to you in life that defines people of character its what you do about it”. Now I know not everybody has my DNA, but you have to try.

Of course you are always welcome to call me and discuss aspects. My names Gary Pinchen, I have been representing workers and their rights for the last 20 plus years. Any issues around abandonment of employment, casual employee rights, workers rights, adverse action. Redundancy, forced tp resign. Give me a call. Its free, prompt and accurate. We are not here to lead you astray. (We leave that to others.). Call 1800 333 666

We are based in Victoria, but work in all states.

Places to get lodge claim, get assistance.

Fair work Commission, click here, Legal Aid Victoria , click here, Legal Aid, NSW,. click here

Federal court, click here

Fair work Ombudsman, click here

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Workplace investigation that leads to a unfair dismissal

workplace-investigation-that-leads-to-a unfair-dismissal
Is it a employer culture to seek the truth or the decision to dismiss you has already been made?

Workplace investigation that leads to a unfair dismissal

In the unfair dismissal decision of MacDonald v Whitehaven Coal Mining Ltd [2021] FWC 838 handed down by Commissioner Riordan, in the Fair work Commission. It was held that an employee dismissed over a flawed and unfair workplace investigation would be dismissed unfairly. This decision has prompted discussion related to workplace investigation procedure. What an adequate investigation process would entail? What should be done to ensure procedural fairness in protecting employees’ rights? Workplace investigation that leads to a unfair dismissal is highly relevant in protecting / understanding your employment rights. Importantly to protect you against an unfair dismissal.

Factual background to unfair investigation

The Applicant, Mr MacDonald, was employed by Whitehaven Coal Mining (the Company) as a mineworker since March 2011. Six months into his employment on 22nd September 2021, Mr MacDonald failed to make positive communication with another water cart operator as he drove a light vehicle in approaching an intersection of a haul road. Mr MacDonald’s actions composed a breach of the Company’s safety hazard rules. Which required Mr MacDonald to communicate with the water cart operator when he became within 50 meters of the cart.

Employee was dismissed, employee argues no valid reason

Mr MacDonald was dismissed six days after the incident, with reasons for his dismissal cited:

In addition to the breach of safety hazard rules, “the Company has lost faith and trust in your ability to remain as a Whitehaven Coal employee due to your lack of contact. Participation in the processes and the core failing outlined above. Which includes a general obligation to the health and safety of yourself and those around you.”

Mr MacDonald submitted that despite his breach of safety rules, his dismissal was not based on a valid reason. This was because particular circumstances surrounding the incident that precluded him from following the safety hazard procedures and he was not at fault at the time.

Shortly after the incident, Mr MacDonald was called into a meeting to provide a statement. During the meeting, he was informed of the Company’s decision to stand him down with pay. The next day, Mr MacDonald received a show cause letter that gave him one day to provide his response.

Don’t be bullied in the workplace investigation. Don’t admit to something you didn’t do. Careful you don’t end up dismissed for this.

Investigation did not seek information

The evidence given by the Company also showed that the operations manager only relied on Mr MacDonald’s statement. They did not seek further information before issuing the show cause letter. While Mr MacDonald’s union asked for a four-day extension for Mr MacDonald to submit his response. In order to have the meeting rescheduled so Mr MacDonald would be accompanied by a union representative at the meeting. The Company reject those requests and only decided to grant an extra day of extension. Reason being that they did not want to delay the matter over a weekend.

Based on these facts, Mr MacDonald had also raised a number of concerns regarding the Company’s disciplinary procedures. Including the following:

  • Lack of details of the allegation listed in his termination letter;
  • That he was not given a reasonable time to respond; and
  • That he was not given the opportunity to have a support person with him to attend his disciplinary meetings.

The question then becomes whether the workplace investigation against Mr MacDonald would be fair. Hence would defeat the unfair dismissal claim.

What is workplace investigation and what are the requirements

Employers may initiate an independent investigation about allegations made against an employee’s conduct or behaviour. In the unfair dismissal case of Schaale v Hoeschst Australia Ltd (1993) 47 IR 249. It was held that the workplace investigation conducted must entail the company taking all reasonable steps to examine the allegations. Giving the employee a fair chance of responding to those allegations.

All reasonable steps indicate that the company must have conducted a comprehensive and extensive investigation, taking into account all relevant matters that would be reasonable in the circumstances.

A fair chance means that the employee was given every reasonable opportunity to provide a response to the allegations. This can include a reasonable and adequate time frame allowed for the employee to provide a proper answer. Having a supporting person with the employee to attend any meetings related to the investigation. Procedural fairness should also be complied with in the process of investigation. Including following a just manner and a just process of the dismissal.

The findings of the investigation must also be based on reasonable grounds. If a conclusion is made to confirm the allegations. The decision must be based on an honest and genuine belief held by the employer relying on information being provided. That is, if the employer concludes that the allegations are made out with ill intent or before all relevant evidence has been taken into consideration, the investigation would be corrupted.

The investigation cannot be a cover up for the employer with pre-determined intention to dismiss the employee. A just manner and process also mean that the employer should conduct the investigation within a reasonable period. The employer should not purposely delay the investigation to put pressure on the suspected employee.

Fairness and justice of the workplace investigation

Any failure to comply with the requirements detailed above would render the fairness and justice of the workplace investigation. If an employee is dismissed solely on the ground of serious misconduct without a fair and just workplace investigation, the dismissal would be unfair. It must be noted that small businesses may be precluded from this rule due to the Small Business Dismissal Code.

While most of the heavy burdens are placed on the employer to ensure the investigation is fair and just. Employees would also have the obligation to act honestly. In the unfair dismissal case of Streeter v Telstra Corporation Limited [2008] AIRCFB 15. It was held that Telstra had validly dismissed the employee because the employee acted dishonestly in the disciplinary interview. Leading to the breakdown of the relationship of trust and confidence between Telstra and the employee.

Similarly, a valid reason for dismissal also includes the employee’s failure to follow lawful and reasonable directions by the employer. So if an employee is ordered to participate in the disciplinary action under lawful and reasonable directions, the employee must comply to do so.

Don’t be ganged up on. Your entitled to procedural farness. This will make it a unfair dismissal.

Employees Argument, investigation not conducted properly

So, let’s look back at Mr MacDonlad’s case. Mr MacDonald’s argument was that the investigation was not conducted properly by Whitehaven Coal Mining. He claimed that there was no procedural fairness as he was not given a fair chance to respond to his allegation. The Company denied the four-day extension. They refused to reschedule the meeting so that Mr MacDonald could be accompanied by a support person. The Company also did not conduct a comprehensive and extensive investigation with all relevant matters being taken into account.

His operation manager did not obtain further evidence besides Mr MacDonald’s statement. These facts would point against the investigation being fair. The findings of the investigation should not be conclusive of Mr MacDonald’s misconduct. On this note, the dismissal would be harsh, unjust and unfair as the Company dismissed Mr MacDonald on the ground of serious misconduct based on a corrupted investigation.

Fair Work Commission Findings in unfair dismissal claim

Commissioner Riordan held that Mr MacDonald had clearly breached the Company’s safety rules. Which would give rise to a valid reason for the Company to dismiss him. However, Commissioner Riordan concurred with Mr MacDonald’s argument in deciding that the investigation conducted by the Company was “flawed, not inappropriate, or in any way fair”. With respect to workplace investigation, Commissioner Riordan commented at paragraph 112 that:

An employee is entitled to have a full and thorough investigation conducted, including the interviewing of appropriate personnel, proper consideration of all of the evidence by the relevant management representatives and then have a written list of allegations provided to them. The employee should then be provided with an appropriate amount of time to seek advice and respond in writing to the allegations. The employer should only then consider any findings in relation to any incident.”

Commissioner Riordan, commenting on the unfair dismissal case

Participate in the investigation

Mr MacDonald had fulfilled his duty as an employee to participate in the investigation. But on the other hand, the Company had not come to the conclusion on an honest and genuine belief. Commissioner Riordan found that the operations manager of the Company already held predetermined view. That is to terminate Mr MacDonald regardless of the investigation outcome. The lack of procedure fairness made Mr MacDonald’s termination unjust.

The Company was ordered to reinstate Mr MacDonald within 7 days of the decision. Further must compensate Mr MacDonald with 25 weeks of pay for his remuneration loss.

Get what is rightfully yours

Conclusion: Workplace investigation that leads to a unfair dismissal

The decision handed down by Commissioner Riordan provided a strong statement in protecting employee’s rights with regard to unfair dismissal and workplace investigation. It acts as a warning to employers that they must have complied with their obligations to conduct proper investigations in finding serious misconduct. Despite having valid reasons for dismissal, unfair dismissal can still be found if the employer has not conducted the investigation properly to conclude the misconduct.

Employers also cannot have predetermined view of the employee without relying on evidence and all relevant matters being considered in the investigation. On the other side, employees should be aware of their rights and entitlements when having a workplace investigation against them – including their right to a reasonable opportunity to respond to their allegations, and the right to substantial and procedural fairness.

Have any questions, concerns give us a call at AWNA. We are here for you. Abandonment of employment, workers rights, employment rights, serious misconduct. Call today on 1800 333 666

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What does being a casual employee mean?

In the modern economy, casual workers come in all roles

What does being a casual employee mean?

Casual workers, among all other kinds of employment, are affected most by the inconsistent workplace restrictions and lockdown rules brought by the pandemic. They are usually the first to lose their jobs when a business closes down due to economic pressure. In fact, two-thirds of the people who lost a job during the early pandemic period are casual workers. In the hope of looking after the casual workforce, the government has sought to introduce new protections for casual workers’ rights. This article “What does being a casual employee mean?” will explore the nature of casual employment and any new protections provided to casual workers.

What is a casual employee?

Section 15A of the Fair Work Act 2009 provides the definition of a casual employee as someone who makes no firm advance commitment to continuing and indefinite work to the employer. Firm advance commitment can be considered with regards to the following factors set out in s 15A(2) of the Fair Work Act 2009, including:

  • Your employer can choose to offer you work and You have the choice to work or not
  • When your employer needs you to work, you will be rostered to work
  • Your employment type is described as casual
  • You are entitled to casual loading or a specific pay rate unique to casual employees

A casual employee does not have an agreed pattern of work. This meaning that a casual employee has no consistent set days of the week that a casual employee would be required to work. Their working hours are wholly dependent on shifts being offered by their employers. They can choose to work on the hours they are rostered on or reject work. However, it does not mean that casual employees cannot have a set pattern of work hours.

Regardless of your hours, you do some some rights, including not being unfairly dismissed (must qualify)

How long can an employee be casual?

Casual employment while seeming to lack consistency and security, can offer flexibility to work arrangements. This is especially desirable for young people who have to work and study at the same time. In electing to work for different hours and on different days, they are able to fit in work around their busy schedules. Not to mention the perks of casual loading on top of their hourly rate to help with their financial stress. However, there are downsides to casual employment, including not having entitlements such as annual leave and paid personal leave.

Because of these benefits to some (including older employees, working mothers, employees recovering from illness or injury). Some employees can be casuals for many years. There is no time limit. This is particularly prevalent in retail, supermarket chains and service stations.

New rules regarding conversion from casual to part-time employment

Amendments have been recently added to the Fair Work Act 2009 since March 2021, introducing new workplace entitlements and obligations employers have for casual employees. The new changes include:

  • Insertion of section 125A and section 125B that deal with Casual Employment Information Statement;
  • Insertion of section 15A that deals with the meaning of casual employee; and
  • Insertion of Division 4A regarding casual conversion.

The new sections in clarifying the meaning of casual employee seems to be the aftermath of the Full Federal Court’s decision on Workpac Pty Ltd v Rossato [2020] FCAFC 84 where the full court left confusion and held Mr Rossato to be a permanent employee of the company despite being engaged via casual employment engagements. This decision has been overturned by the High Court in WorkPac v Rossato & Ors [2021] HCA 23 in holding that an employee labelled as casual under an award or enterprise agreement would be casual for all purposes.

Must offer permanent employment

The third change that deals with casual conversion has sparked a lot of controversies. Under Division 4A, an employer must make an offer in writing to their casual employees to convert to full-time or part-time employment. If they have worked there for at least 12 months, during which the employee has worked on a regular pattern for 6 months. “Must” indicates that employer has to offer casual employee the conversion option. It is not up to the employer’s discretion to provide the offer or not. There are exceptions, however, when the employer is not obliged to make the offer under section 66C on the reasonable grounds listed as follows:

  • The employee’s position will not exist in the next 12 months;
  • The employee would be required to work significantly less hours under the offer;
  • There would be a significant change to the days and times the employee is obliged to work and does not accommodate the employee’s availability;
  • The offer would not comply with a recruitment or selection process required under the law.

Under section 66D of the Fair Work Act 2009, when an employee is given an offer, he or she must provide a response within 21 days. The response can be whether the worker wishes to accept the offer of conversion or decline the offer.

Similarly, a casual employee is also entitled to request an offer from the employer of conversion when certain requirements of their employment are satisfied (a period of employment for at least 12 months with 6 months under a regular pattern of work hours). The employer is obliged to accept the request, unless the reasonable grounds listed above apply.

Everybody (employee and employer) should be able to work together, for each others benefit

New path way for casual employees

The new introduction of Division 4A of the Fair Work Act 2009. Provides a new pathway for casual employees to transit their employment into a more secure type of employment. Either part-time or full-time, to have access to entitlements and leave. Casual workers then would be facing the difficult decision one year into their employment when they meet the criteria for casual conversion.

On one hand, converting from casual to part-time or full-time would allow them to gain access to paid leave. They can happily request for sick leave or take days off for holidays without having the fear of losing income or losing their jobs. In the alternative they will lose the privilege of casual loading. Also not having to make firm and advance commitment to their employment. This means that they will have consistent working hours on set days. Which is reasonable, considering that they will only be eligible for the conversion if they have been working on a regular pattern for at least 6 months. However, losing the casual employee privilege would mean that employees generally have less flexibility guaranteed for their work schedule. They can no longer reject their shifts if they are rostered on.

Not everybody wants to be a permanent employee

People who work multiple jobs or university students may particularly be disadvantaged by this conversion. Losing casual loading also equates to a reduce in income, even though working hours for the employee remain the same. Some may have to pick up extra hours to satisfy their ends meet without casual loading. Hence the conversion would also not be favourable for those.

Even though casual employees are not obliged to convert to part-time or full-time employment under the new rules. They may nonetheless face external pressure in accepting the conversion offer. Casual employees are generally in a weaker bargaining position compared to their employers. Some may feel like they are obliged to accept or reject the offer to please their employers in the fear of losing their jobs.

There are benefits whether your a casual or permanent employee. You have to work out what’s best for you.

Security of employment can bring benefits.

For others, the conversion to a more secure type of employment may be beneficial. However the opportunity to convert is denied by their employers. Investigation shows that six months after the implementation of the new casual conversion law, only approximately 1% of Australian universities’ casual staff had been converted.

After requesting casual conversion, university staff were hit with a generic response that the university “determined that there are reasonable grounds (in accordance with the legislation) not to offer to convert [their] role to a permanent position”. It seems like regardless of the legislative changes, the employer can still try to twist around with the legislation by denying conversion and having to offer entitlements to their employees.

On another hand, the protection offered by the new amendments to the Fair Work Act is restricted and only available to certain casual employees –they have to have worked for a minimum period and have to have a regular working pattern for a fixed period. Casual employees that do not meet both criteria listed in the Act are still left unprotected as they are not eligible to convert to permanent employment. 

The reform that aims to provide more security to casual employment can still create loopholes for employers to evade their legal obligation to covert casual employees to permanent. Or in some extreme circumstances, employer may try to terminate the casual employment right before the employee would become eligible for the conversion. They can continue to hire short-term casual Avoiding the legislative requirement to offer conversion, which in turn prompts an even higher turnover rate of the casual workforce.

This legislation may have unintended consequences.

Can you terminate a casual employee?

Its a truly daily hire situation, yes the employer can terminate you at any time. If its less than 6 months service, or 12 months if its a small business under the Fair work act (less than 15 employees) they can be dismissed, regardless if casual or permanent. This is referred to as the qualifying period. If the employee is out of these qualifying periods and the work is on a regular and systematic basis. Then the employee has access to the unfair dismissal laws. (you cannot be dismissed for unlawful reasons at at any time).

Can casuals get fired for no reason?

If the employee is a casual employee, by definition a daily hire person, they can be fired at any time. The employee receives a 25 percent loading to substitute in part for this. If the employment is regular and systemic and meets the qualifying period of employment under the Fair work Act. Then they subject to the unfair dismissal regime under the Fair work Act (s387). This means the employer must provide a valid reason and procedural fairness must apply.

Be part of the team, what’s improtant to one is not important to another. Don’t end up dismissed in the confusion.

New Victorian rules for casual sick leave

In March 2022, Victoria introduced the Victorian Sick Pay Guarantee that grants casual worker up to 5 days of sick and carer’s pay per year. The pay is calculated according to the national minimum wage for casual and contract workers (currently at $20.33 per hour). With the maximum pay a casual worker is entitled sits roughly at $772.60. This new scheme is yet another attempt by the Victorian Labor government to provide for security to casual workers. To allow them to take time off without worrying about losing their jobs or income.

Conclusion: What does casual employment mean?

In conclusion, the recent amendments to the Fair Work Act 2009. Seek to provide a clear and legal definition of casual employment. It grants more security to casual employees by introducing the option to convert to permanent employment. It must be noted that the conversion available under the Act is only limited to certain casual employees who meet the criteria to be eligible for conversion.

I hope the article was informative for you. Some of the questions around casual employment have been answered. It was a bit technical, however hopefully its informed you of your rights and options. Have any questions around casuals, workers rights, employment rights, probation related issues. Fair work Australia related enquires, give us a call. Advice is free.

Call 1800 333 666

Reach out for help. Get advice. Don’t end up dismissed or the misconception of what your employments rights are.

We work on a national basis, including, Victoria, NSW, QLD

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General protections awarded $650k for uni employee

Employees across Australia are celebrating the increasing payouts at the Federal court

General protections awarded $650k for uni employee

The Federal Circuit Court has recently awarded a whopping $664,601.38 to a university employee due to breaches of the general protection provisions of the Fair Work Act 2009 (FW Act). For failing its obligations under the Macquarie University Staff Enterprise Agreement 2015 (EA). The hearing to determine the appropriate remedy comes one year after the Federal Circuit Court established the liability of the employer in the decision of Tran v Macquarie University (No.2) [2019] FCCA 2049 (Decision). General protections awarded $650k for uni employee is an important decision

Handling employee complaints and dismissals

In the context of rising employment claims due to the COVID-19 pandemic and scrapping the JobKeeper scheme. The decision is another reminder for employers of the importance of following procedure. To undertake due diligence when handling employee complaints or termination of employment.  The significance of this decision is demonstrated by more than $270K awarded for future economic loss taking into account the COVID-19 pandemic. The employee’s age, her overall health, time out of the workforce and wages to date.

Background to complaints

The Applicant, Ms Tran, was employed as a systems accountant by Macquarie University (Macquarie) from 2007 up until Macquarie made her position redundant in July 2019. In about 2010, Ms Tran lodged a grievance against her direct supervisor due to concerns over her unreasonably demanding workload. This matter was dealt with by Macquarie via mediation and an amicable outcome was reached.

In 2014 there was a change in upper management at Macquarie and it was during this period of transition that Ms Tran began to experience increased pressure from her direct supervisor. In respect to her workload and work hours. After failed attempts to resolve the issue with her supervisor. Ms Tran made formal complaints through various channels within Macquarie however she was unable to procure an outcome satisfactory to her. From 2014 until her termination,

Ms Tran made several more complaints that relating to alleged ill treatment she was experiencing by her direct supervisor. Including allegations of bullying. The evidence before the Federal Circuit Court indicated that Ms Tran’s complaints were poorly handled by Macquarie. Including one instance where Ms Tran was encouraged by upper management to resign if she did not like her direct supervisor.

Getting paid after a win in the courts for your general protections claim

Dissolved role by redundancy

In 2017, Macquarie announced its proposal to restructure the workplace which essentially dissolved Ms Tran’s role (and that of another employee). And created two new roles of a higher level within the restructure. With a potential redundancy looming over her, Ms Tran expressed her interest to be redeployed within Macquarie. In accordance with the terms of the EA, Macquarie was required to give priority consideration for staff members seeking redeployment including a priority interview.

Macquarie was also required to identify any position suited to Ms Tran’s skills and relevant experience. Or identify if retraining was possible. The Federal Circuit Court found that Macquarie had failed in its obligation to make a genuine attempt to assess Ms Tran’s skills in relation to the positions she applied for. Failed to disclose the existence of available positions to which she was entitled to a priority interview.

Targeted specifically

Ms Tran commenced a general protections claim in the Fair work Commission. This did not resolve through mediation. Proceedings were then commenced in the Federal Circuit Court claiming that the restructuring was targeted at her specifically. It was Macquarie’s intention being to remove her from her role due to the complaints she had made.

General Protections Provisions Under the FW Act

The general protections found in Part 3-1 of the Fair work Act prohibit employers from taking adverse action against an employee because the employee has a workplace right or has exercised a workplace right by making a complaint or enquiry. Further industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements.

In respect of prohibited actions by an employer against an employee, ‘adverse action’ means dismissing the employee. Injuring them in their employment. Altering their position to their prejudice, or discriminating against them by treating them less than favorably compared to other employees.[1]

You can feel like the system is here to break you, don’t give up.

Workplace right

Under the FW Act, a person has a workplace right if they are entitled to the benefit of a workplace law or instrument. Has a role or responsibility under a workplace law or instrument. Is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. Thus, an employee, like Ms Tran in this case, can make a complaint about bullying or unreasonable workloads. The employer is prohibited from taking any adverse action, such as making their position redundant, because of their complaint.

The use of the word ‘because’ in these provisions is the central question in a General Protections dispute. The largest hurdle for any employee claiming an employer has acted adversely towards them. Is drawing the link between the exercise of a workplace right and the adverse action. Unless the adverse action was taken ‘because of’ the prohibited reason. There will be no breach of the General Protections provisions. If it is alleged that a person is taking action solely for a non-prohibited reason. Such as serious misconduct or poor performance, then there will be no breach. If there are multiple reasons for the action, one of them being a prohibited reason. The prohibited reason must be a substantial and operative reason. Even if it is not the sole or dominant reason, for a breach to be established.

Excised that workplace right

In the case of Tran. The Federal Circuit Court considered the allegations made by Ms Tran in the context of the general protections provisions. Based on the evidence presented it was satisfied that Ms Tran had exercised a workplace right within the meaning of s 341(1)(c) of the FW Act. By making formal complaints about the unreasonable hours and workload, including her treatment at the hands of her direct supervisor.

The Federal Circuit Court also held that Macquarie’s proposed restructure that dissolved Ms Tran’s position, amounted to adverse action within the meaning of s 340 and s 342 of the FW Act. Accordingly the adverse action was taken for a prohibited reason, that being, the adverse action was taken in response to the complaints made by Ms Tran.

The Federal Circuit Court also considered contraventions of Macquarie’s Enterprise Agreement. Pursuant to s 50 of the FW Act, a person must not contravene a term of an enterprise agreement. In its Decision, the Federal Circuit Court held Macquarie’s failure to redeploy Ms Tran. Or make sincere and genuine attempts to do so, was not in accordance with the terms of the EA and thus contravened the EA. The Federal Circuit Court held this was a breach of s 50 of the FW Act.

Macquarie’s obligations in respect to restructuring, redeployment, and redundancy under the EA were described by the Court as extensive and beyond the norm. That being said, the Federal Circuit Court held that employers should ensure they understand and comply with any consultation obligations arising from Modern Awards or enterprise agreements applicable.

General protections awarded $650k. Counting the win, why not?, she deserved it.

What was the employee awarded?

The Federal Circuit Court awarded compensation totalling $664,601.38 to Ms Tran. This compensation amount was made up of the following:

  • $45,000 in pecuniary penalties paid directly to Ms Tran for Macquarie’s multiples contraventions of the FW Act;
  • $271,163.19 in compensation due to the Court’s determination that reinstatement was not suitable in this instance;
  • $55,156.19 in superannuation payments, which includes the amount Ms Tran would have accumulated had the payment been invested;
  • $278,282 in compensation for future economic loss;
  • $15,000 in non-economic loss due to the distress and humiliation experienced by Ms Tran due to being unlawfully made redundant.

The substantial sum awarded to Ms Tran is a win for employees everywhere. However, the facts of this case were unique and there is no guarantee that all general protections claims will be awarded this much. In addition, the entire court case took years and thousands of dollars in legal fees. Which is an important consideration to take into account when lodging a claim in the Federal Circuit Court or the Federal Court.

Careful your general protections claim doesn’t get this appearance.

Consideration of the long term effects of COVID-19 pandemic

An important aspect of this decision is the Federal Circuit Court’s consideration of the long-term effects of the COVID-19 pandemic on our economy and job prospects. This was a factor that was importantly considered when the Federal Circuit Court awarded damages to Ms Tran for future economic loss. However, there were several factors considered by the Federal Circuit Court in the Decision and the mention of the pandemic was very brief. Nevertheless, these brief comments may have wider implications on future court actions. Specifically in regard to the dismissal of high wage earners during the pandemic who naturally may take longer to find a new role in the current climate.

Th Decision demonstrates the importance of implementing thorough and consistent work practices in respect to dealing with employee complaints. To ensure a fair process is implemented and followed each time a complaint is made. The Decision also highlights the importance of complying with the terms of any applicable enterprise agreements or Modern Awards.

General protections claim awarded $650k for uni employee

I hope this article “General protections claim awarded $650k for uni employee” was of interest for you. The range in which compensation is awarded, is extreme. if we can be of assistance your welcome to call us. Anything to do with the Fair work Australia regime, including dismissals, redundancies, abandonment of employment, workplace harassment

How much is my general protections claim worth, click here

General protections claim awarded $1 million click here

Important to get representation (particularly if you want the big dollars) click here

General protections application, click here

[1] Fair Work Act 2009 (Cth) s.342(1).

Constructively Dismissed But Not Unfair Dismissal

Resigning on the spot

Constructively Dismissed But Not Unfair Dismissal

In one of the first constructive dismissal cases for 2022, an employee was found to be constructively dismissed or forced to resign. However the Fair Work Commission still deemed the dismissal fair. It’s constantly assumed by employees if you can prove your forced to resign. (constructively dismissed).Then its automatically assumed that its unfair. This article “Constructively Dismissed But Not Unfair Dismissal” will run through the details and the legal test you must meet. My view is you never ever resign until you get advice. Going without income is not easy.

Details of the unfair dismissal claim

In Costigan v KOR Equipment Solutions Pty Ltd. Mr Michael Costigan made an application alleged he was unfairly dismissed after he was forced to resign from his employment with KOR. KOR is an import and distribution business. The industrial equipment they import are truck mounted vacuum and hydro-excavation units which they distribute throughout Australia and New Zealand. Mr Costigan commenced employment by KOR on 3 August 2020. When his employment with KOR ceased on 31 August 2021, he was working as a Business Analyst.

On 22 July 2021, Mr Roberts and Mr Costigan had a meeting (the July meeting). Mr Roberts gave Mr Costigan a formal warning detailing what he says were errors in Mr Costigan’s work. Costigan says that this constituted his first formal warning. Mr Robert says that this was the second formal warning.

Constructively-Dismissed-But-Not-Unfair Dismissal
Did you have choice or not?

Disciplinary meeting

On 31 August 2021, Mr Robert met with Mr Costigan in a disciplinary meeting to discuss Mr Costigan’s alleged performance issues. (the resignation meeting). Mr Steven Cusworth, the Managing Engineer of KOR, also attended this meeting. At the meeting, Mr Roberts said that Mr Costigan had continued to make errors in his work in August. He then proceeded to detail those errors. Mr Costigan did not agree with the manner in which the issues raised by Mr Roberts are characterized.

Choose to resign, rather than be dismissed

At the resignation meeting, Mr Roberts told Mr Costigan that the day of the meeting would be his last day working for KOR. Told him that he could choose to resign rather than be dismissed. Following the meeting, Mr Costigan sent an email to Mr Roberts stating that. “At this point in time I would like to exercise my right to resign effective today.” Is this choice or forced, is the important question.

Forced to resign because of the conduct or course of conduct

Under the Fair Work Act 2009 (Cth) (the FW ACT), the term dismissed is defined 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. A forced resignation, also referred to as a constructive dismissal, is when an employee has no real choice but to resign. Thus, the onus is on the employee to prove that their resignation was not voluntary. This issue may form the basis of a jurisdictional issue when dealing with claims such as Unfair Dismissal applications in the Fair Work Commission.

Given that Mr Costigan resigned, Commissioner Mirabella of the Fair Work Commission conducted a hearing in which she had to determine whether Mr Costigan resigned voluntarily. Or whether he was forced to do so and thus constructively dismissed.

Under the Fair Work Act 2009 (Cth) (the FW ACT). The term dismissed is defined 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 left the employee with no real choice but to resign.

Despite an employee feeling they have no other choice but to resign, constructive dismissal claims are extremely difficult to win. Whilst it is your application, the onus is on you to prove the resignation was forced, in order to satisfy the test of constructive dismissal, as it was you who ended the employment relationship. 

Constructively-Dismissed-But-Not- Unfair Dismissal
Some situations get out of control. If your subjected to this behaviour, your forced to resign.

Employers intent to bring the relationship to an end

In order to satisfy the legal test for a forced resignation or constructive dismissal claim, the employee must demonstrate that the employer has taken action with the intent to bring the relationship to an end. Or that has that probable result. In the words of the Full Bench, of the Fair Work Commission, in O’Meara v Stanley Works Pty Ltd. Adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli, the test is whether the employer engaged in conduct with the intention of bringing the employment to an end. Whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. 

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2). States that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”. For example: An employee resigned after having been paid under half of what he was owed in wages over a period of 4 months. This was held to be a forced resignation due to the conduct of the employer and thus constituted a dismissal by the employer.

Each unfair dismissal matter turns on its own facts.

In Costigan v KOR Equipment Solutions Pty Ltd. Commissioner Mirabella acknowledged that not every resignation following notification of an impending termination will constitute a dismissal. Each matter turns on its own facts. In this case, Commissioner Mirabella found that there was time pressure imposed on Mr Costigan. The actions of Mr Roberts were instrumental in Mr Costigan’s resignation and the resignation was Mr Roberts’ idea.

Commissioner Mirabella found that Mr Robert’s presented the notion of resigning as an alternative to termination. Together with a positive reference and an additional bonus. KOR’s intention was that Mr Costigan. Whether through termination or resignation, would cease to be employed by them within less than two hours. Commissioner Mirabella found that there was no genuine attempt to give Mr Costigan time to contemplate the choice of resignation. That it is difficult to conclude that Mr Costigan was exercising his individual judgement when he accepted the offer to resign.

He had no effective choice regarding the tenure of his employment at KOR. In respect of the constructive dismissal, Commissioner Mirabella held that the only choice Mr Costigan had was the manner in which he would depart.

Senior manager scolding his employee. Can this lead to a successful constructive dismissal?

Is the constructive dismissal harsh, unjust or unreasonable?

Aforementioned, if an employee is forced to resign and can successfully prove this is a direct result of the employer’s conduct, this will constitute a dismissal. If satisfied that the employee has been dismissed, the employee can make an unfair dismissal claim in the FWC. In order to qualify for an unfair dismissal, the employee must have completed at least the minimum employment period with the employer.

The minimum employment period is 6 months’ continuous service at a particular time, for non-small business employers. If the employer is a small business. Which employs less than 15 employees at the relevant time, the employee must have completed at least 12 months of continuous service at the particular time.

Despite the employees’ eligibility to make an unfair dismissal claim after establishing their forced resignation constitutes dismissal under the FW Act. The employee would need to establish that the dismissal was harsh, unjust or unreasonable. In Grundy v Brister and Co. The Fair Work Commission found that the employer had forced the employee to resign and that the employee was therefore constructively dismissed after a resignation letter was prepared by the employer and the employee was required to sign it.

However, when assessing whether this constructive dismissal was unfair, the Fair Work Commission held that the dismissal was not harsh, unjust or unreasonable. As the employees engaged in abusive behaviour and had a threatening attitude towards fellow employees. Although the Fair Work Commission noted procedural failings. Such as preparing the resignation letter for the employee, the Commission held this did not outweigh the seriousness of the employee’s misconduct.

Valid reason for the dismissal

When assessing whether a constructive dismissal is harsh, unjust or unreasonable, the Fair Work Commission will look at whether there was a valid reason for the dismissal. Which relates to the employees’ capacity or conduct. Whether the employee was notified of this reason. Was 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 dismissal.

Was the employee was warned about unsatisfactory performance prior to the dismissal if this was the reason for the dismissal. The degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the dismissal. 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 dismissal. Finally any other matters the Commission considers relevant.

Constructively Dismissed But Not Unfair Dismissal
Stress of business woman packing brown cardboard box her belonging after resign and signing cancellation contract letter, Change of job unemployment or resignation?

Could not perform the job to the required standard

In Costigan v KOR Equipment Solutions Pty Ltd. Commissioner Mirabella found that there was a valid reason for Mr Costigan’s dismissal. When taking into account several matters in which it was alleged he had failed to perform at the required standard. Thus, even though Mr Costigan was constructively dismissed, there was still a valid reason for his dismissal.

Ultimately, Commissioner Mirabella found that KOR dismissed Mr Costigan because he could not perform his job to the required standard. Further could not be relied upon to deliver accurate work. Mr Costigan was provided with feedback over several months, opportunities for improvement and two warnings. Mr Costigan was dismissed because he could not perform the job that was required of him and his dismissal was not unfair.

Conclusion: Constructively Dismissed But Not Unfair Dismissal

I hope this article was helpful to you. This area can get even more complex when you discussed resigning, but didn’t resign. You mentioned you might leave in the future. Took a week off, and the employer has assumed to have left. Choose your words carefully, particularly if the relationship with the employer is deteriorating. Your always welcome to get advice from us at, AWNA, its free and to the point. All abandonment of employment issues, Fair work Australia, worker’s rights, employment rights.

Al states, including, Victoria, NSW, QLD

Forced to leave my job, click here

Resignation letter do’s and Don’ts, click here

Constructive dismissals too hard to win, click here

How much is my claim worth, click here

Constructive dismissal, withholding of wages, Click here

Workplace bullying by the “mean girls”

Workplace bullying by the "mean girls"
“Mean Girls” in the Labor Party prompting concerns about workplace bullying

Workplace bullying by the “mean girls”

What is workplace bullying and harassment? Lets explain in some detail.

The death of Labor Senator Kim Kitching has brought spotlight to the issue of toxic workplace culture and workplace bullying. It was alleged that she was extremely stressed due to the unfair treatment she has received from her Labor colleagues leading up to the suspected heart attack. Prior to her passing,

Kitching had made multiple complaints about bullying. Even calling out three big names among her Labor colleagues and referring to them as the “mean girls”. The “mean girls”, including Penny Wong, Katy Gallagher and Kristina Keneally were quick to break their silence on the allegations and deny any bullying claims.

So what workplace conducts are of an acceptable standard and what conducts would cross the line and constitutes bullying? how do you manage parliamentarians who cannot be dismissed between elections?

Bullying at the workplace

When you are subjected to repeated and unreasonable behaviour by a person or a group of people from your workplace, which creates a risk to your health and safety, you are being bullied. Bullying behaviors can be apparent, such as intimidation or verbal abuse from your colleague. On other occasions, bullying can be subtle and hard to tell. For example, you being excluded from work-related events or you being given too much or too little work. In a way, workplace bullying can somewhat resemble the plot of the Mean Girls. The popular group not inviting certain people to social gatherings and distributing rumor’s to damage someone’s reputations.

Harassment, exclusion by the "mean boys"
Isolated at work, being excluded. This is bullying

Bullying versus reasonable management action.

But bullying is to be separated from reasonable management action. Comments or feedback you have received from your manager or your manager placing you on a performance plan may not constitute workplace bullying. If they are for genuine reasons, such as to help you improve your work or to address your performance issues. So your manager can subject you to management actions, as long as the actions are reasonable. The definition of reasonable remains unclear, nor there are any guidelines to assess what actions would be reasonable.

The term “reasonable” infers an objective standard in judging what behaviour would be reasonable or not. However it is not always a clear cut. The intentions behind certain actions can be hard to tell. Even though you may suspect that you are being treated unfairly because your manager or employer dislikes you. They can still cover up by proclaiming that the conduct is management action to address your “poor behaviour or performance” issue at work. The murky distinction between workplace bullying and reasonable management actions can sometimes bring the issue into dispute.

Is Senator Kitching being bullied?

Let’s look back at the Senator Kitching and the Mean Girls saga, is Senator Kitching being bullied? Kitching’s pick by the Labor Party was particularly controversial due to her Right-wing political agenda. As a junior senator, Kitching had been particularly vocal in the senate. She made a substantial presence on issues related to national security and Australia’s relationship with China.

Kitching had encountered some conflict with her Labor colleagues. Particularly Senator Penny Wong, regarding her tough stance on China and campaigning for sanctions on human rights violators. Kitching had been alleged to be isolated and “frozen out” by the Labor Party’s Senate leadership team. She was taken out of the Labor’s tactics committee. Kitching was given fewer opportunities to ask questions during Question time. She was demoted from the front bench.

Bullied to the point of no return. Employee feel like he's been step on
Bullied to the point of no return. Employee feel like he’s been step on.

Being excluded, ignored, given less responsibility

The treatment of Kitching in the Labor Party mirrors workplace bullying behaviors to a degree. This includes exclusion, being ignored, and being given less responsibility. There is a repeated pattern of how Kitching was subjected to unfavourable treatment by her Labor colleagues. However, the reasonableness of such treatments of Kitching stands debatable. The excuse of “tough politics” has been used by the Labor Party in denying any bullying allegations. The bullying complaints were not investigated and still haven’t been. So politicians are held to a lower standard than other workplaces in Australia.

A political party is not like a traditional workplace.

A politics career will inevitably attract pressure and challenges. Being a politician means that you will face contests about your political stance or behaviour on a daily basis. Your every move is placed on the watch and is constantly criticized by voters, the media, the opposition and even your party members. Parliamentary debate becomes part of your duty. Where you will engage in heated debates with your colleagues and politicians about the political agenda policy ought to be implemented or not. (This relates to the workplace as robust debate or discussions).

In the “Mean Girls” defence, conflicts and different voices were usual in the parliament environment and nothing Kitching faced was unreasonable. Although the boundary may not be clear, there is a perception between what is acceptable action for attacking one’s politics, and what is unreasonable for singling one out and bullying one in the party. “Tough politics” cannot be an indefinite excuse to cover toxic behaviour imposed by your colleagues.

Allegedly, other Labor senators had voiced their concern regarding the treatment of Kitching being “disgusting”. And needless to say, the treatment Kitching was subjected to had added to her stress in leading up to the deadly heart attack.

co workers gossip behind her back.  This is a form of bullying
A young woman sits along at coffee break as her co workers gossip behind her back. This is a form of bullying

Bullying risk to health and safety

The risk to one’s health and safety brought by bullying is obvious. Being bullied at work adversely impacts one’s health and wellbeing. The stress, the anxiety, and the self-blaming that come from being bullied. Or excluded by your workmates can place a tremendous toll on your mental health, which in turn will also influence your physical wellbeing. The verbal abuse or intimidation can make you fearful for your safety. For Senator Kitching, it was alleged that the stress she suffered from bullying exacerbated her pre-existing conditions in inducing the sudden heart attack.

So you have been bullied, what next?

For many people, the obvious way of dealing is to speak up and make complaints about the bullying behaviour. Senator Kitching did so. She complained to a workplace trainer about her treatment after a workplace training, saying “What are you going to do about the fact that I am being bullied?” She also raised her concerns about her unfair treatment to other Labor colleagues, including the deputy Labor leader Richard Marles.

It does not seem like Kitching’s comments and voicing have been effective in mitigating the bullying behaviour by her fellow party members. Her allegations of bullying within the Labor Party only came under the spotlight after her sudden death. Even so, the Labor leaders are ready to dismiss any accusations and enquires into Kitching’s treatment and refuse to conduct any formal investigations about the party’s workplace culture.

Complaining about bullying

For many other workers, the revenues for complaining about bullying can be stranded. Bigger companies or organisations might have better anti-bullying policies and formal complaint procedures in place. They may also have human resources or people and culture department in house to deal with complaints related to workplace bullying. They can have the resources and capacity to conduct investigations and implement policies to address bullying behaviors. Dismiss employees where appropriate. Having said that, it is not guaranteed that there would be no bullying in bigger companies, or they would be competent in eliminating workplace bullying.

Small business bullying

People who work in small businesses tend to be more unfortunate when it comes to being bullied. There might not be a human resources department in a small business. They don’t have any procedures in place regarding making complaints and dealing with complaints. Workers in small businesses tend to find that their only way to address their concerns is to speak to their manager or supervisor.

This can become complicated when the very person who bullies you is your manager or supervisor. Speaking up or making a complaint in this circumstance will not only alleviate the unreasonable treatment but can instead exacerbate the bullying behaviour or even lead to the worker being dismissed.  Many people have expressed their concerns about speaking up and making complaints internally in fear of the adverse consequences and look to external resources in seeking help for being bullied.

Targeted bullying. Its a form of mob rules
Targeted bullying. Its a form of mob rules. Employers can get into a situation, they originally ignored this behaviour. Then its out of control, everybody in on the joke or bullying and the employer doesn’t know what to do now.

Fair work anti-bullying avenue

The Fair Work Commission can enforce anti-bullying laws and facilitate conciliation between employees and employers to stop workplace bullying according to the Fair Work Act 2009. Workers can engage the Fair Work Commission to stop bullying by putting in an application to stop bullying or sexual harassment (Form 72). (we can be retained to do this for you)

The application allows workers to explain their circumstances by listing the bullying behaviour they have been subjected to and addressing their concerns about the risk to their health and safety. The employer will also be given an opportunity to provide a response to the employee’s application. After receiving the application, the Fair Work Commission will invite the worker, the employer and potentially any representatives to attend a conciliation conference.

It is a private and voluntary discussion between the parties to encourage dispute resolution. And since it is an informal and private discussion, employees have the proper platform to voice their concerns and advocate for their desired outcome. This can be the implementation of a comprehensive anti-bullying policy, adjustment to workplace procedures, or simply just to stop the bullying behaviour.

If a resolution is not reached during private conciliation, the application would proceed to a formal hearing where a formal order to stop bullying can be made by the Fair Work Commission. A formal stop bullying order offers workers more security in protecting them from workplace bullying and deter any future bullying behaviour. However, it must be noted that the Fair Work Commission cannot order financial compensation for workplace bullying.

help is here
Help is here, give us a call.

Conclusion: Workplace bullying by the “mean girls”

I haven’t written much about bullying in recent times. The death of Senator Kim Kitching, and the controversy surrounding this and brought the issue back into new focus. If there are any positives out of her death, maybe this will change how people / employees treat each other. Bullying impacts can be serious, we know that. Politics’, should not be excluded from fair and just processes and how we treat each other. It is not a blood sport. People who work for political parties, that is their workplace and act within the laws. Politicians are educated people, reasonably well paid, they should get it.

Have a query, been dismissed for complaining about bullying. All Fairwork Matters, probation concerns, abandonment of employment concerns, sick leave, whatever give us a call. advice is free, prompt and confidential.

Call 1800 333 666

Bullying when working from home, click here

Types of workplace harassment, click here

Unfair dismissal trust and confidence

Unfair dismissal trust and confidence
Is the trust and confidence to get your job back there is the question. Its a high test at the Fair work Commission. Try and maintain the trust and confidence with your employer and not get dismissed to begin with. (if this can be done. The saying goes it takes two to tango)

Unfair dismissal trust and confidence

Can I be reinstated after a unfair dismissal? Absolutely

Reinstatement is the primary remedy for unfair dismissal under the Fair Work Act 2009 (Cth)

Whilst its the first remedy under the Fair work Act, its very difficult to get your job back. Unfair dismissal trust and confidence is a great topic to discuss. Through a dismissal employees career’s can end, reputations tarnished. If your an older employees there may be the risks you will never work again. Getting your job back can be critical. Fixing a wrong with a right can be so important.

In your unfair dismissal claim the employer may agree, the FWC states it was an unfair dismissal, however the relationship through the dismissal process can be the stumbling point. The Fair work conciliation where both sides are having a go at each other and a possibly of a formal hearing with cross examination. The relationship is usually well and truly on the rocks by then. The Fair work member (a judge) has to be convinced, if they order you back to work, its going to work. Its not drama filled.

FWC Reinstates 6 Employees in a Recent Unfair Dismissal Claim

A recent decision in the Fair Work Commission saw the reinstatement of 6 employees after they were unfairly dismissed from the same employer. In Burkhardt & Others v Qube Ports Pty Limited.[1] Mr Rudy Burkhardt, Mr Adrian Pedder, Mr Craig Miller, Mr Igor Butsenko, Mr Richard Iki and Mr Tym Brazel were notified by the Respondent that their employment was terminated. The group filed their unfair dismissal applications individually. The Fair Work Commission decided to hear the applications jointly as the termination arose from the same set of circumstances.

Unfair dismissal trust and confidence
Still believe you can be an asset to the company, i want to be reinstated

Stevedoring function was not part of their job

The Applicants were Shift Managers who were asked to perform stevedoring work at the terminal during a period when the stevedoring employees were taking protected industrial action. All of the Shift Managers, at different times, advised the employer that they were prepared to perform their duties as a Shift Manager. But would not perform the work of the striking stevedores for a variety of reasons including safety on the job, personal and family safety. Arguing because stevedoring functions are not part of their job, and the need to preserve and re-establish a working relationship with the stevedores when the protected action concludes. The Applicants were prepared to work.

The Applicants were prepared to do their own jobs. Applicants were not prepared to perform work for which they were not trained or qualified to perform or for which they were not employed to undertake. The Shift Managers declined the request and they were subsequently dismissed for allegedly not following a lawful and reasonable direction.

Lawful and reasonable direction

In determining whether there was a valid reason for dismissal, Commissioner Riordan of the Fair Work Commission, had to determine whether the request to perform stevedoring work was a lawful and reasonable direction. It was held that there was no provision for such a task in the employment contract or award. It was not mentioned in any interview process involving any of the applicants and it was not mentioned in the position description of a Shift Manager.

The direction made to the applicants were not lawful and reasonable and thus there was no valid reason for dismissal. Without a valid reason for dismissal, an unfair dismissal claim is immediately harsh, unjust and unreasonable as the claim fails on this first requirement.

Conduct prior to the dismissal

When addressing any other matters relevant for the Commission’s consideration, Commissioner Riordan criticised the employers unconscionable conduct prior to the dismissal. In July 2021, Mr Kranendonk presented a deed of release to the Shift Managers at a meeting, asking them to sign the deed before he was prepared to outline the 4-step plan to keep the port functioning.

However, Mr Kranendonk required the Shift Managers to sign the document before they read it. Commissioner Riordan described the employer’s conduct as unfair, unconscionable and simply ridiculous, as the employees were prohibited from reading the document but required to sign it, without any knowledge of what they were signing.

Unfair dismissal trust and confidence
I can still be part of the team, let me return, lets talk

Reinstatement, is it viable option

Having concluded that the dismissal was unfair, Commissioner Riordan considered the Applicants’ claim for reinstatement. In determining whether an employee can be reinstated, the Fair Work Commission must consider whether reinstatement is a viable option considering the trust and confidence in the employment relationship. It cannot be subject to conditions, it has to be “clean”.

In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins),[2] the Full Court of the Industrial Court said:

Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins),[2] the Full Court of the Industrial Court.

Not a easy decision

As you can see, its not an easy decision for the Fair work Commission to order employees back to work. Sometimes I wonder is it more convent for the employer to just argue, lets just give them compensation.

In Nguyen v Vietnamese Community in Australia  a Full Bench of the Commission conveniently summarized this issue:

The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen)

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinize a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party. 

Full bench of the Fair work Commission
first day back at work. The Employer is welcoming me back, no hard feelings. We have all moved on
first day back at work. The Employer is welcoming me back, no hard feelings. We have all moved on

Trust and confidence could be re-established

Ultimately, Commissioner Riordan did not accept that the requisite level of trust and confidence could be re-established with the 6 Applicants in order to allow the Applicants to continue their career with the Respondent.

Based on the obiter and Perkins and Nguyen, Commissioner Riordan was satisfied that the requisite trust and confidence can be re-established between the Applicants and the Respondent. In making this decision, Commissioner Riordan noted that none of the Applicants were dismissed for unsatisfactory performance and all of the Applicants are keen to resume their careers with the Respondent. The Applicants were reinstated to their former roles as Shift Managers at Fremantle Port and maintained their continuity of employment. The Applicants also received back pay for their lost time, including their superannuation, between the date of termination and the date of their reinstatement, less any money earnt by each Applicant in the intervening period.

Fair work Decisions

The reasons have used quotations is the summaries in the decisions is its like a check list of the considerations for reinstatement. These are serious considerations when you are pursuing an unfair dismissal claim. An example of this you want reinstatement. (no criticism for asking) And the employer has offered a reasonable amount of money in the alternative. You reject the compensation to pursue the reinstatement, when it appears it will fail. You have incurred fees, time and effort when you goal was not going to be achieved.

Equally it goes the other way. You take a small settlement not thinking there is the possibility you can get your job back. A job at $60-80 k fair out weighs a 4-6 week settlement in some cases. Having stated that a lot of our clients move into better paying positions. The dismissal is a wake up call for better or for worse.

Post employment behaviour maintaining that trust and confidence

Many employees who are unfairly dismissed, are not happy. I’m stating the obvious. However what you have to careful is what happens next. In a recent unfair dismissal decision, Mr Youjun Zhang v Seven Star Technology Pty Ltd [2022] FWC 360 (17 March 2022. )The employee was found by the FWC to be unfair dismissed. However because he has threatened to kill the employer. The FWC stated this behaviour cannot be condoned and refused to award compensation, yet alone consider reinstatement.

I have this many times in the social media platforms. Where an disgruntled employee goes and ventilates, severely criticizes their employer to appalling standards. I raise this in this article because of reinstatement is where you want your job back. You have to keep yourself fairly tidy in order to get an order from the Fair work Commission reinstating you.

Or the employer does not object / agrees to reinstatement as part of negations. Nobody wants someone back who absolutely criticizes, makes derogatory comments towards them. Always look at the bigger picture, what are you hoping to achieve.

It was a good place to work until I got dismissed, I want to go back
It was a good place to work until I got dismissed, I want to go back

Conclusion: Unfair dismissal trust and confidence.

In understanding reinstatement there is a lot to consider. Many of the applicants in unfair dismissals and general protection claims, kind of leave it to the conciliator at the Fair work Commission to advise them what’s the best outcome. This is not their role, their role is settle the claim, by any means reasonably possible. You have to act in your best, the job back or compensation for your unfair dismissal claim. How much energy and cost to you want to allocate to the situation?. Do you revisit the past by wanting to be reinstated. Or receive a payout out, negotiate getting the dismissal turned into a resignation and move on? I’ll state it again, only you can decide this.

We at AWNA are here to assist you, advice is prompt, confidential and to the point. Any Fair work Australia matters, probation related issues, workers rights, employment rights, where your people. I am proud of the staff and the outcomes they deliver for our clients. Abandonment of employment and casual employment enquiries have particularly increased, got concerns on these, call us.

Free call 1800 333 666

Always good to avoid dismissal to begin with, 40 ways to do this, click here

Negotiating with your employer, get what you want (reinstatement), click here

Unfair dismissal cases, click here

Dismissed, 12 crazy way employees are sacked click here

[1] [2022] FWC 281.

[2]   (1997) 72 IR 186.

[3] Ibid at 191-192.

[4] [2014] FWCFB 7198.

[5] Ibid [27]-[28].

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