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 of an Employee For Offensive Facebook Posts

Dismissal of an Employee For Offensive Facebook Posts
Careful what you post on your social media. Is it a unfretted right?, or are there rules? What’s reasonable? Unreasonble

Dismissal of an Employee For Offensive Facebook Posts

In the recent unfair dismissal decision of Corry v Australian Council of Trade Unions T/A ACTU. The Fair Work Commission upheld the dismissal of an employee for making offensive and discriminatory posts on his personal Facebook account and the employer’s internal messaging service. The posts supported an anti-vaccination mandate campaign. Violence against the police, and were discriminatory against various groups including the LGBTQI+ community.

Background

The ACTU is the peak body for Australian unions, is made up of 38 affiliated unions. (including the CFMMEU and Police unions) It represents approximately 1.8 million workers and their families. The ACTU aims to be inclusive of workers’ diversity and adopts and promotes public positions in support of equality. ACTU has a diverse workforce, which includes people from various backgrounds, ages, cultures, linguistic diversity, gender identity, sexuality and LGBTQIA+ status.

In addition, ACTU has a clear policy on COVID-19 vaccinations in the workplace. Mandatory vaccinations have been one of the most significant issues of public policy over the last two years. In that it has been that of federal and state government responses to the Covid-19 pandemic. ACTU supports and encourages all workers being vaccinated, as a fundamental matter of workplace and community health and safety.

The ACTU has also publicly responded to the anti-lockdown and vaccination mandate protests held around the country. The ACTU condemned the violence, attributing the protests to far-right extremist influences and continued to encourage vaccination and support for advice of public health experts.

Dismissal of an Employee For Offensive Facebook Posts
Careful of the web and social media platforms. Your postings can be there for ever. You can’t take it back

Events Leading Up To Dismissal of an employee

Mr Conrad John Corry (the Applicant) commenced his employment with ACTU on 15 June 2015 as a full-time Inbound Organizer. Throughout his period of employment, Mr Corry received multiple warnings about his inappropriate conduct. On 8 March 2018, the Applicant received a warning for engaging in disrespectful communications with other staff members. On 9 August 2021, Mr Corry received another warning for failing to remove inappropriate posters/images from his work station. This was located immediately adjacent to one of the main doors from the open plan office into the kitchen. The inappropriate materials included:

  • a poster of Conan the Barbarian, which included sexualised depictions of semi- naked women;
  • black and white photos of a naked/topless woman; and
  • a photo of a statue of a topless woman.

Final warning

Final This warning was described as a “final warning” regarding this incident and any future unacceptable conduct.

Emailed screenshot

On 21 September 2021, ACTU was emailed a screenshot of a post made by the Applicant on the employer’s internal messaging service. This service was called “Slack”, which was visible to all staff. The context in which the “Slack” post occurred was that of a violent protest that took place outside the CFMMEU’s Victorian construction division’s office in the Melbourne CBD. This was on the previous day (20 September 2021) following the state government’s announcement of a mandatory COVID-19 vaccination for the construction industry. The Applicant’s post stated “my sources on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St… . They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!”.

A risk to due to the “Slack” post, ACTU decided to review the Mr Corry’s social media posts which were able to be viewed on his public personal Facebook account. On viewing Mr Corry’s Facebook posts, Alex White (ACTU employee) was concerned that a number of posts were variously offensive and derogatory. Or potentially constituted harassment and/or a risk to health and safety. Or had the potential to bring the ACTU into disrepute.

Dismissal of an Employee For Offensive Facebook Posts
Your posting may be viewed as bullying and harassment. People are not going to always support your view.

Facebook postings include:

  • Mr Corry posted a photo of the protest that was then underway outside the CFMMEU office with the comment: “F..k the jab’ good lads!”
  • Mr Corry made a Facebook post stating:“Rights are what you’re collectively able to enforce and protect I have the right and reserve the rights to party with my friends and wake up in the swag *searches for state government approved reasons*. …I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour…shiiiiiieeeeeeeeet NIBBA…Don’t be afraid to use globo homo Big Lies against them..”
  • Mr Corry made a Facebook post which included a link to a video clip of a police officer being assaulted during a protest, captioning the video: “A hero has emerged! Bad music but beautiful clip, I do enjoy Bolsheviks whether urban cops or other types get taken out, even if only for a moment”.
  • Mr Corry made a Facebook post in conjunction with a photo from the Met Gala 2021, captioning the photo: “This Met Gala was a truly horrifying exhibition of the hideous, the synthetic, and other elements of what makes the GloboH system so ugly and unappealing to healthy (normal) people, truly a spectacle of the grotesque…. truly demonic energy requiring a flaming sword/righteous Hammer to exterminate”.
  • He made a Facebook post which included a cartoon and photo of two women wrestling, captioning the post: “there is something quite demonic going on with all this Trans stuff…the ritual humiliations of having it in public, the ritual sacrifice of body parts (mainly genitals), the indoctrination of children and all the other general ugliness of it”.
  • Mr Corry made a Facebook post which included a photo of Kyle Rittenhouse carrying a semi-automatic machine gun. Following his acquittal of two counts of homicide from a fatal shooting, captioning the photo: “A hero has emerged… Pray for Kyle”. Mr Corry posted another photo of Kyle Rittenhouse with an accompanying headline of a story that a US police officer who had been dismissed for donating to Kyle Rittenhouse’s legal defense costs, had filed a grievance. Mr Corry commented on the headline story: “Good, I donated some serious USD to Kyle’s defense too. He’s a good boy and innocent of all crimes.”
Dismissal of an Employee For Offensive Facebook Posts
You cannot just go on a frolic of your own. Despite your views you have to work with people. Get along. You want to avoid a dismissal, ending up with a Fair work stop bullying order against you.

Workplace investigation

On the following day, 22 September 2021, Mr Corry was asked to attend a meeting, in which the posts were shown to Mr Corry and he was asked to respond. During the meeting, Mr Corry explained himself and whilst maintaining that his conduct was “reasonable”. He offered to delete the Facebook posts of concern. After the meeting, ACTU deliberated about Mr Corry’s future with ACTU before deciding to terminate his employment for serious misconduct later that day. ACTU alleged that the “Slack” post and several Facebook posts were (among other things) highly offensive, discriminatory. Further it constituted a risk to health and safety as well as the reputation of ACTU.

Unfair Dismissal Claim

On 8 October 2021, Mr Corry lodged an unfair dismissal application with the Fair Work Commission. In which he asserts that the termination of his employment with the Australian Council of Trade Unions (ACTU) on 22 September 2021 was unfair.

In considering whether the employee’s out-of-hours posts on his personal Facebook account were a valid reason for dismissal, Deputy President Masson of the Fair Work Commission ruled the posts were likely to cause serious damage to the relationship between ACTU and Mr Corry. Caused a serious and imminent risk to the reputation of ACTU. Mr Corry’s conduct was incompatible with the employee’s duties to the employer. Deputy President Masson ultimately held that the conduct breached the employer’s policies and constituted serious misconduct. Which justified the employee’s dismissal. However, the disciplinary process followed by the Respondent was procedurally unfair.

Absence of fair process

Nevertheless, Deputy President Masson ruled that the absence of a procedurally fair process, is to be given significantly less weight on this criteria than the presence of a valid reason. Given the seriousness of Mr Corry’s actions. That is because even had the ACTU put the detail of the allegations to the Applicant in a more fulsome manner, it is highly unlikely that a different outcome would have been reached. This is because Mr Corry has shown no insight into or contrition for his conduct.

dismissed because of social media postings
The old days, it was literally a phone call or message to communicate with each other. Now you can go out and tell the whole world. Once its done, you can’t take it back. 500 Facebook friends, well done, some might say. Are they really your friends?, are they going to run off and show people what you write?. Show your employer, then the damage is done.

Rights to his personal views

While strongly pressing his claim to have an unfettered right to espouse his personal views and beliefs outside of his normal working hours. He made no concession as to any obligations he owed to his former employer in respect of those Facebook posts. In these circumstances, Deputy President Masson held it was unlikely that any level of detail put to him during the disciplinary process would have altered his position or that of the ACTU. The dismissal was deemed fair.

Dismissal of an employee

I hope this article “Dismissal of an Employee For Offensive Facebook Posts” was helpful. Social media postings have always been controversial. What can you say, or not say in a democracy. Also the Fair work Commission commented on the issue of insight. When you apologize or not, show contrition, and possibly keep your job. all these are considerations for you.

Sometimes it’s not just about reputational damage to the employer. What about your co worker’s?, does it unnecessarily hurt colleagues feelings. People you have to work side by side every work day for years. Workplaces have to have a inclusiveness team based approach, how do all these comments, postings fit in with this? Have a question give us a call. Serious misconduct, general protections, probation issues, Workers rights, employment rights, harassment issues, we do the lot.

Free Call 1800 333 666 anytime, its confidential, phone is answered by a real person.

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General Protections Claim is awarded $million

general protections claim awarded million $
Not everybody’s a winner in the court system. However it is good news when an employees get a decent win and settlement

General Protections Claim is awarded $million

Good luck to the CFMEU and their member in General Protections Claim is awarded $million. The CFMEU has a checked history and seems to keep getting fined for their behaviour. In this case they have certainly done some good. so what’s it all about? Why did this claim get a million dollars when most other claims don’t. Read on and see what happened.

Summary

In the recent General Protections claim CFMEU v Hail Creek Coal Pty Ltd.[1] The Federal Court of Australia has awarded an employee damages of $1,272,109 for past and future loss of wages. This substantial pay out under the adverse action provisions of the Fair Work Act. This was was made despite the District Court having previously awarded substantial common law damages for the employee’s work-related injury. General Protections Claim awarded million $

History

Mr Haylett, an employee of the Hail Creek Coal Pty Ltd (HCC), sustained a work related back injury in 2009. He returned to work in a modified role and worked in that role for about 3 years.

On 15 November 2013, the District Court awarded Mr Haylett approximately $637,000 in common law damages for his workplace injury. On 18 November 2013, Mr Haylett undertook a prearranged medical assessment under the Coal Mining Safety and Health Act 1999.

He was assessed as unfit to undertake the duties of his unmodified role. Mr Priestly, HCC’s mine manager, decided to suspend Mr Haylett from employment. This was when he received the results of the medical assessment. Despite Mr Haylett’s successful challenge of the validity of the medical assessment, Mr Haylett was not reinstated to his role.

General protections claim pursued by the union

The CFMEU, on behalf of Mr Haylett, brought a number of claims against HCC. Including that HCC had contravened section 340 of the Fair Work Act (FW Act). This was by failing to pay Mr Haylett wages because he had exercised a number of workplace rights. This included the exercise of Mr Haylett’s workplace right to commence proceedings in the District Court for common law damages in relation to his workplace injury.

In these Federal Court proceedings, Mr Haylett claimed that a reason for his stand down included because he pursued the employer for damages arising from his back injury. (and this was a “workplace right” has was entitled to pursue). Because of the “reverse onus of proof” in adverse action proceedings, the employer had to prove that the reason or reasons Mr Haylett was stood down did not include because he pursued compensation for his injury. The employer maintained that the “primary and only” reason the mine manager stood Mr Haylett down was the need to comply with the CMSH Regulations.

General Protections Claim is awarded $million
General Protections Claim is awarded $million. don’t get too caught up in the million dollar result. You claim is worth, what’s it worth. Of course some applicants do better than others. Justice is not equal for all. You do not want to be the one that is burnt through this general protections process.

Discharged the onus of proof

The Court was not satisfied that the employer had discharged the onus of proof. In order to show that the workplace rights Mr Haylett exercised was not a reason for its decision to stand him down on 19 November 2013.

The mine manager gave evidence that the “primary and only reason” for his decision to stand Mr Haylett down was the need for the employer to comply with the CMSH Regulations. However, Justice Reeves found the manager to be generally unsatisfactory as a witness.

His Honor specifically held:

  • the mine manager had been advised that as a result of Mr Haylett’s compensation for the back injury, the employer’s insurance premiums would rise;
  • the decision to stand Mr Haylett down was made in haste. The manager received Dr Parker’s assessment after Mr Haylett was placed on sick leave;
  • the purpose of the CMSH Act and Regulations is to protect the safety and health of employees working in the coal mining industry. It is not directed to the operational requirements of coal mining employers;
  • the manager said in evidence that he did not know Mr Haylett and he did not know the type of work he was performing at the mine. Notwithstanding this, he did not ask anyone about Mr Haylett’s work activities before making his decision to stand him down. Purportedly for safety reasons;
  • the manager did not speak to anyone about the content of the email from Dr Parker. Or seek any advice from the Human Resources Department about any requirements under the CMSH Regulations; and
  • the manager could not point out any provision in the CMSH Regulations that required him to act in the manner he did.

Stand down was unlawful adverse action

Due to the fact that the employer could not prove that Mr Haylett’s compensation claim was excluded from the reasons for standing Mr Haylett down. The Court found that Mr Haylett’s stand down was unlawful adverse action. There is no “cap” on compensation that can be awarded for unlawful adverse action and so Mr Haylett was awarded:

  • compensation for past and future loss of wages, plus interest, which amounted to $1,296,735; and
  • a penalty of $50,000,paid to his union, the CFMEU.

Key Takeaways

Uninformed and ill-advised decision making

This serves as a reminder to employers that evidence of a decision maker’s reasons will be critical for the employer to “prove their innocence”. Usually managers will have to give evidence. Uninformed and ill-advised decision making may lead to contraventions. Care must be taken when making decisions to an employee’s detriment. Even where the decision is well intended, to ensure the decision does not breach any enterprise agreement, modern award or the FW Act.

Having a clear decision making process and documenting appropriate reasons can be key to discharging the reverse onus. With the impending replication of the adverse action jurisdiction to the government sector in Queensland, (now passed).It has never been more important for all workplace decision makers to be able to justify adverse treatment of employees. In making the award, Reeves J considered the interaction between the common law damages award and the award for breach of the FW Act. Reeves J held that those awards had different purposes as:

  • the District Court award was an award of damages for loss of earning capacity assessed by reference to the effect his physical injury would have on his future earning capacity; and
  • the current award was to compensate Mr Haylett for loss of wages and future income caused by contraventions of the FW Act.
Get the help you need, it can be an exhausting process
Get the help you need, it can be an exhausting process.

The way in which compensation in such cases is to be calculated

The case is interesting not just for its analysis of the general protections. But also for the judge’s summary of the way in which compensation in such cases is to be calculated. The calculation process can be quite complicated. In Maritime Union of Australia v Fair Work Ombudsman,[2] the Full Court described the exercise that has to be undertaken in assessing an award of compensation under s 545(2), as follows (at [28]):

The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects – the probabilities and the possibilities.

Proved on the balance of probability

The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Insofar as future or hypothetical events are concerned, the High Court described how loss or damage was to be assessed, in the following terms: … Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage.

Loss and damage was sustained

However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

By its very nature, the calculation of future loss can only be a rough estimate. It cannot be undertaken with mathematical precision. The object is to arrive at an estimate which is “most likely to provide fair and reasonable compensation”.

Maritime Union of Australia v Fair Work Ombudsman,
general protections
Make sure the scales of justice work in your favor. General Protections Claim is awarded $million. You want the best possible result for your general protections application. There is a lot to consider.

General Protections Claim is awarded $million

General Protections Claim awarded million $ was a brief article. Pursuing a general protections claim is serious business. Its important you get early advice to work out a strategy to succeed. (medical evidence, witness statement, expert opinions). Its not like when you go to the accountants and hand them a folder or case of receipts and you say let me if I owe or I pay the tax office.

The in tribunal and courts systems you have to prosecute your own claim. The fair work Commission is there to assist you as part of the process. Not advice you, or run your case. You only get out of these cases, whet you put into them. Keep good evidence, try and bring clarity to the situation. Focus on why and the grounds you have lodged your general protections claim.

A lot of applicants get it confused with a unfair dismissal claim. They keep going back to the unfairness of it all. this is not what a general protection claim is about. There’s that old saying you don’t go to a gun fight with a knife. Of course it was unfair the way they treated you, the way they sacked you, that s not the test. Did the employer breach the general protections provisions? (excising workplace rights, discrimination related dismissal) is the real test.

Questions, need advice?

Have questions, need advice, give us a call. Lets work out what best for you. Many general protections claims are based on discriminatory acts by the employer. So there is the possibility to lodge a claim in the various human rights, equal opportunity or anti discrimination boards around the country. Sometimes this is a cheaper and more relevant process. It depends on your claim and what you seek out of the claim, your ability to fund the claim (we do no win, no fee work). Matters around, general protections, adverse actions, workers rights, employments rights, unfair dismissal, we are here for you.

Free call on 1800 333 666


What’s my general protections claim worth, click here

General protections application, click here

Adverse action, what’s it mean, click here

[1] [2016] FCA 199; [2016] FCA 1032.

[2] [2015] FCAFC 120.

Employee and Contractor Issues High Court Clarifies

employee and contractor issues
This decision effects a lot of people

Employee and Contractor Issues High Court Clarifies

This is essential reading. It is an issue that has been thwart with Legal uncertainty for years. This is particularly so with the new world of the gig economy. Read on, it may be very relevant to your situation. Employee and contractor issues have considerable financial and legal ramifications. Is it a unfair dismissal or is it a termination of an agreement?

Independent contractors have different rights and obligations to employees

Employee and Contractor Issues, is a particularly controversial topic at present. So what’s it all mean? Lets bring some clarity to the issue now. If your dismissed as an employee, you have far cheaper and quicker access to recourse in the Fair work Commission. Than going to court in reality was is now a small business owner characterized as a contractor.

Independent contractors have different rights and obligations to employees. This is because they provide services to another person or business, as opposed to being employed by that person or business. This means it’s important to understand the difference between the two.

As a rule, for an employment relationship to exist, a minimum level of mutual obligation is required. In other words, there is an obligation for one person to perform work (the employee) and for the other person to pay for that work (the employer). Courts look at the whole relationship between the parties when determining if a person is an employee or an independent contractor. This was through a multi-factor approach, looking at the totality of the relationship.

Just because you have an ABN doesn’t automatically make you an independent contractor.

You need to consider all these indicators when working out whether you’re an employee or an independent contractor. There usually won’t be one deciding indicator. For example, just because you have an ABN or issue invoices doesn’t automatically make you an independent contractor.

A person won’t automatically be an employee or an independent contractor because of the type of work they do. A person may perform the same type of work as an employee of a business but may still be an independent contractor. This means that whether someone is an employee or an independent contractor will depend on the individual circumstances.

Primacy of contractual terms and the importance of contractual interpretation

Recently, the High Court has confirmed the primacy of contractual terms and the importance of contractual interpretation in two crucial decisions handed down on 9 February 2022. Regarding the distinction between employees and independent contractors. These decisions demonstrate that the High Court continues to affirm the primacy of contractual terms in determining employment. The contractor relationships and classifications.

The decisions highlight the importance for employers in drafting written contracts for both independent contractors and employees.

employee and contractor issues
You have to be careful what your signing up for when you join the company. Read the paperwork. If need be get advice.

Recent CFMEU High Court Decision

In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1. The High Court held that a construction worker was an employee of a labor hire company. This decision had considerable effect relating to his dismissal rights.

Personnel Contracting (trading as ‘Construct’), a Perth based labor hire company, engaged workers to supply labor to building clients. Construct provided services to Hanssen Pty Ltd. This is pursuant to a labor hire agreement for the provision of self-employed contractors by Construct at Hanssen sites. Construct’s workers were paid on a daily hire basis, for which Construct invoiced Hanssen on a weekly basis.

Mr McCourt was a 22-year-old British backpacker on a working holiday visa. Mr McCourt contacted Construct and attended an interview on 25 July 2016. At his interview, Mr McCourt advised Construct that he was ready to start work immediately and that he owned his own hard hat, steel-capped boots and hi-vis clothing. Mr McCourt was subsequently offered a role and signed an Administrative Services Agreement (ASA) with Construct. The ASA described Mr McCourt as a ‘self-employed contractor’.

On 26 July 2016, Construct contacted Mr McCourt and offered him work at Hanssen’s project site. Mr McCourt was supervised by a Hanssen leading hand and there was no contractual arrangement between Hanssen and Mr McCourt.

Mr McCourt performed work on Hanssen’s projects between 27 July 2016 and 6 November 2016. And between 14 March 2017 and 30 June 2017. On 30 June 2017, Mr McCourt was directed by Construct to stop work on the Hanssen project sites. He did not receive any further work from Construct.

Claiming compensation and penalties under the Fair Work Act 2009

Mr McCourt commenced proceedings in the Federal Court against Construct claiming compensation and penalties under the Fair Work Act 2009 (Cth) (FWA). This in relation to their dismissal, terminating their services. Mr McCourt claimed that he was not an independent contractor. That Construct had failed to pay him entitlements as an employee under the Award. At first instance, the primary Federal Court judge, Justice O’Callaghan, applied a multifactorial approach. (control, operation of own business, integration in Construct’s business, provision of tools and equipment and terms of the contract). To answer the question of whether Mr McCourt was an employee of Construct for the purposes of the FWA.

Justice O’Callaghan held that Mr McCourt was a contractor of Construct and considered the following factors as decisive. The description of Mr McCourt as a ‘self-employed contractor’ requirements set out in the ASA that Mr McCourt not hold himself out as an employee of Construct.

employee and contractor issues
Employee and contractor issues. Action against the company is never clear cut. Keep documentation, pay slips, contract, allot of employees don’t. Then when it ends in tears, a dismissal, general protections claim, lack of documentation becomes a hurdle you should not have.

Full Federal Court upheld the Federal Court’s decision

The CFMMEU appealed the decision to the Full Federal Court. The Full Federal Court upheld the Federal Court’s decision. The Full Federal Court also applied a multifactorial approach in determining that Mr McCourt was a contractor of Construct and, therefore, not an employee. However, it was noted that the Full Federal Court’s decision was made on the basis that it was bound by the decision of a Western Australian Industrial Appeal Court decision.

This was involving an identical dispute between Construct and self-employed contractors 16 years ago, which otherwise would have led to the Full Federal Court finding that Mr McCourt was an employee.

High Court Rules Mr McCourt is an Employee

The CFMMEU appealed the Full Federal Court’s decision to the High Court. The High Court unanimously overturned the Full Federal Court’s decision and held that Mr McCourt was an employee of Construct.

The High Court found that the multifactorial test approach taken by both the Federal Court and the Full Federal Court was problematic as it is impressionistic and can lead to inconsistency and considerable uncertainty.

In reviewing relevant authorities, the High Court considered that the multifactorial test approach evolved since Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 had led to a departure from key authorities in determining the characterisation of a relationship by reference to the rights and obligations committed to writing by the parties in a contract.

The High Court stipulated that, in neither Stevens nor Hollis did this Court suggest that, where one person has done work for another pursuant to a comprehensive written contract, the court must perform a multifactorial balancing exercise whereby the history of all the dealings between the parties is to be exhaustively reviewed, even though no party disputes the validity of the contract. Critically, both Stevens and Hollis dealt with disputes where there was either no written contract, or the contract was partly written and partly oral.

The totality of the relationship between the parties

This position taken by the High Court was advanced from its decision in WorkPac Pty Ltd v Rossato [2021] HCA 23. The High Court suggested that considering ‘the totality of the relationship between the parties’. This was not misplaced, but that it must be concerned with the rights and duties established by the written contract and the contractual obligations of the parties.

However, importantly, that is not to say that the ‘label’ the parties chose to describe the relationship with is determinative of the characterization – that is for the court to determine as a matter of law.

dignity and respect
Employees and contractors can be treated differently. Employee and contractor issues, employers know who got rights and who hasn’t. The contracting and casualization of the Australian work force is a concern.

In this particular case, the High Court found the following:

  • Mr McCourt was not carrying on a business on his own account. Construct retained a right of control over Mr McCourt, which was fundamental to Construct’s business as a labor-hire agency.
  • Construct was entitled to determine for whom Mr McCourt would work and, once assigned. Mr McCourt was required to cooperate in the supply of his labor to the client.
  • Mr McCourt worked subject to the control of Construct under the ASA and had no right to exercise any control over what work he was to perform or how it was carried out.
  • The description of Mr McCourt as a ‘self-employed contractor’ was not determinative. Did not change the character of the relationship created by the express terms of the ASA.

Accordingly, the High Court allowed the appeal and held that it was impossible to conclude that Mr McCourt was not dependent upon, and subservient to, Construct’s business and that he clearly performed a contract of service as Construct’s employee.

Recent High Court Decision in ZG Operation v Jamsek

In ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, the High Court held that two truck drivers were independent contractors despite over 40 years of exclusive service to the principal, ZG Operations.

Mr Jamsek and Mr Whitby (the drivers) were employed by former entities of ZG Operations Australia Pty Ltd as truck drivers. The drivers were initially engaged as employees and drove trucks provided by ZG Operations. In 1985 or 1986, ZG Operations insisted that it could no longer employ the drivers. That their services would only be used if they purchased their trucks and entered into contracts to carry goods for ZG Operations.

The drivers subsequently set up partnerships with their respective wives, purchased the trucks and signed written agreements with ZG Operations. After this date, the drivers made deliveries at the request of ZG Operations and invoiced ZG Operations once the delivery was completed. These agreements remained on foot until 20 January 2017, when the contracts were terminated by ZG Operations.

Commenced proceedings for statutory entitlements

The drivers subsequently commenced proceedings for statutory entitlements they claimed to be owed as employees under the FWA, the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Long Service Leave Act 1955 (NSW). At first instance, the primary Federal Court judge, Justice Thawley, concluded that drivers were independent contractors.

The Full Federal Court overturned the primary judge’s decision and held that the drivers were employees of ZG Operations. The Full Federal Court considered the ‘totality of the relationship’ between the parties. They paid particular attention to the way the parties had conducted themselves since 1986. Further, the Court held that the disparity in bargaining power between the parties influenced the ability for it to be considered a contract for services. That is provided by the respective partnerships and accordingly each should be considered an employment relationship.

employee v contractor
Being a contractor may sound good, its an opportunity to get ahead in life Consider the tax returns, BAS statements, workers comp insurance, accounting fees. No sick leave, holiday pay, no long service leave. All for in many cases marginally more than you get as an employee. That’s apart from the procedural aspects of termination, where as a contractor your simply in most cases walked out the door. Where as as an employees, you have to get procedural fairness, you have access to the unfair dismissal regime.

High Court overturns Federal Court ruling – drivers were not employees

The High Court allowed the appeal and heard it together with CFMMEU v Personnel Contracting. As in CFMMEU v Personnel Contracting. The High Court considered the character of the relationship between the parties by reference to the rights and duties created by the written contract, which comprehensively regulated the relationship. High Court held that ZG Operations having superior bargaining power at the time of creation of the contract. And did not alter the meaning or effect of the contract.

In turn High Court held that, as the terms of the relationship had been committed to a written contract and the efficacy of that contract had not been challenged as a sham. The characterization of that relationship must be with reference to the rights and obligations of the parties under the contract. High Court held that the Full Federal Court erred in considering the totality of the relationship and substance of the bargaining power between the parties. For the reasons stated in CFMEU v Personnel Contracting and in Workpac Pty Ltd v Rossato.

After 1986, the contract between ZG Operations and the drivers’ partnerships provided that the drivers’ partnerships would own and operate the trucks, which would transport ZG Operations’ goods. The relationship between the parties only continued on ZG Operations’ insistence of a contract for carriage of goods and its refusal to continue to employ the drivers.

High Court determined that the reality of the situation

In examining the written contract, the High Court determined that the reality of the situation was that the drivers’ partnerships. Not the drivers individually, owned and operated the trucks and that the drivers were conducting businesses of their own as partners. The partnerships contracted with ZG Operations for the delivery services provided by the operation of the trucks. The partnerships earned income, incurred expenses associated with the ownership and operation of the trucks. Further they took advantage of tax benefits of the structure.

Accordingly, the High Court unanimously overturned the Federal Court decision. Held that the drivers, through their partnerships, carried on the business of providing delivery services for ZG Operations under a contract for services and were not employees.

employee v contractor
We are here to help you with the different aspects. Advice is free, find out where you stand.

Conclusion: Employee and Contractor Issues High Court Clarifies

I hope you enjoyed, the employee and contractor issues article, its certainly a complicated issue. It was important the matter gets addressed. Your rights are severely effected by what your classification is. Consideration of: Who provides the tools, uniforms, hours of work, rework and warranty. The list can be quite extensive, every situation is different. There is a world of difference between the different payouts if your dismissed or terminated. Any questions, queries give us a call. all Fairwork Australia matters. Including unfair dismissals, probation concerns, general protection claims, redundancy disputes and constructive dismissal complaints. We work on a national basis, including Victoria, NSW, QLD, WA

Call 1800 333 666 for confidential advice.

An article on, lawful and unlawful dismissal click here

How much is my unfair dismissal claim worth, click here

Can You Be Dismissed For having OnlyFans Account?

Can You Be Dismissed For having OnlyFans Account?
Can You Be Dismissed For having OnlyFans Account?

Can You Be Dismissed For having OnlyFans Account?

We have been answering workplace questions relating to unfair dismissals, forced to resign, the list is endless for 20 plus years. Things have changed drastically. Socially media and the gig economy, plus changing social and moral behaviour have changed allot of workplace behaviour. Whilst this question might appear to have limited scope, it has relevance right across social media. What can you be dismissed for? Is it an unfair dismissal? Can the company conduct a workplace investigation for what I do in my lunchtime or after work? Please read on about Can You Be Dismissed For having OnlyFans Account?

What is OnlyFans?

Until recently I didn’t even know what OnlyFans was. Then within several weeks I had 5 calls around the platform how it effects the workplace. Can You Be Dismissed For having OnlyFans Account? is a great topic to discuss. What is OnlyFans? It a social media web platform where subscribers can purchase sexually explicit photos/videos/content of certain people.

The platform became popular during the COVID lockdowns where sex workers received their income through the OnlyFans portal. For people to access the videos and content, they would need to pay a monthly subscription between $4.99 and $49.99.

Although, OnlyFans is not exclusive to just sexually explicit content. Celebrities such as Blac Chyna, Cardi B and DJ Khaled use the platform to share teasers. For their new music with their fans. The platform was used by celebrities as a “hobby.” However, this was quickly criticised by the public and people who would use the platform as a job.

Nonetheless, OnlyFans is more commonly known through society as a social media platform. Where people can share sexually explicit content with subscribers, to make money. (an article on social media and misconduct for further reading, click here )

Can you get sacked for having an only fans account?

Many controversial opinions of OnlyFans has been raised over time. While some people see it as a clever way to make an income. (anybody can join). Others see it as new platform for sharing porn. This also raises the questions as to whether OnlyFans would be classified as a second job or a hobby? ( is income taxable?) Ultimately, can people who share videos on the platform be fired from their other job?

The short answer to this question, is yes. Employees can be dismissed for any reason, even if it includes having an OnlyFans account. Although, this does not mean the dismissal would be fair. Generally, having an OnlyFans account would not affect your employment, especially if the account is kept secretive and private. However, if explicit photos and videos of the creator were leaked to the public and to your boss. There may be consequences.

Can You Be Dismissed For having OnlyFans Account?
Checking her Onlyfans account. Be careful of the potential reputational damage to the employer. what can start as good intentions gets dragged into the workplace. Dismissed in these circumstances can have a profound effect on your career.

Can You Be Dismissed For having OnlyFans Account? Depends on the Industry you work in

The decision that you could be dismissed for having an OnlyFans account depends upon the industry in which you work in. For example, if you work in a very reputable and conservative company. The manager may frown upon such hobby and engagement. Furthermore, if your position in the company is quite high-up the ranks and relies upon your good reputation, issues may arise if explicit images of you start circulating around the industry.

As such, you may be prone to being terminated if your OnlyFans account starts causing a hostile and problematic work environment. Participating in such controversial activities outside of work may result in the public and customers/clients refusing to associate with your company. This may lead to a decrease in eg. sales, resulting in the decision of the company to dismiss you. Based on this scenario, it may be seen as a fair dismissal.

However, if your participation in OnlyFans outside of work hours does not cause any disruption to the process and outcome in the company you work for, then a dismissal for simply being a creator on OnlyFans may be unfair.  

Dismissal of participating as a creator in OnlyFans

Therefore, the dismissal of participating as a creator in OnlyFans, depends largely on the type of company/industry. Its morals and whether your contribution to the platform has a negative impact on the environment and success of the business. (reputational damage).

Annabelle Knight, a 25-year-old OnlyFans creator from Brisbane, who went by the username “Reisjenni,” was fired from her marketing job on account of her OnlyFans content.  Anabelle believed that one of her colleagues raised her account’s content with her manager, which lead to the dismissal. Annabelle felt disrespected that someone else in the company was subscribed to the platform, and had shared the pictures with management. However, the colleague was not dismissed for subscribing to the account.

This raises controversial issues as to why it is okay for people to subscribe to the platform, but it is not okay for creators to post the content?

Work Schedule

Creators of OnlyFans content should be careful to ensure they are not posting or making content whilst at work. Additionally, they need to ensure that working on their OnlyFans account does not clash with their work schedule. Companies can dismiss you for being late and not showing up to your work shift, if you are too busy making OnlyFans content.

Just like having a second job at a café for example, you would need to ensure the second job does not clash with the work hours of your first job. This is especially if you a permanent part-time or full-time employee.

You would not need to disclose to your employer whether you have an OnlyFans account./ Although they may ask questions if it is brought to their attention that you have not been at work due to your commitments to your OnlyFans content.  

Can You Be Dismissed For having OnlyFans Account?
Talking behind your back when employees have found you on social media. The humiliation may force you to resign (constructive dismissal may apply) Be careful. (or is it your fault, your the one who chose to jump on Onlyfans platform).

When OnlyFans gets brought into the workplace

When OnlyFans content gets brought into the work environment, issues arise. If a colleague is subscribed to the creator, is it sexual harassment?

Kristen Vaughn, a 24-year-old female mechanic was fired from her job after her manager discovered she was posting sexual images on OnlyFans. Kristen’s colleagues began sexually harassing her at work after they found her OnlyFans account and began watching her videos together at work. Kristen’s management did not act upon the colleagues sexually harassing her, instead management dismissed her for making the account.

Management at the company later stated they did not terminate her employment for her OnlyFans account, she was dismissed for violating company policy. Management had commented on the fact that Kristen’s OnlyFans content would harm the reputation of their business.

Furthermore, Kristen’s boss had commented that her OnlyFans account may encourage other co-workers to sexually harass her. Kristen has shared her story on social media and received some criticism, although a lot of support as well.

Sharing of videos and photos in the work environment

It can be stated that such sharing of videos and photos in the work environment is likely to cause difficult decisions management would need to make. Do they punish the people sharing the images and videos around? Or do they punish the person who has made the account?

I believe the sharing of sexually explicit content within the workplace should be frowned upon, regardless of whether it is an employee’s OnlyFans account or not. As such, any sexual relationships or sharing of pornographic content should be kept outside of the work environment. If this is not monitored, it may very well lead to an avenue for sexual harassment in the workplace.

Sexual harassment

In Horman v Distribution Group Ltd [2001] FMCA 52. Ms Horman had worked for Distribution Group as a spare parts interpreter. Ms Horman had claimed that she was being sexually harassed by her co-workers at work. As they would pull her bra straps and touch her buttocks. The Federal Magistrates Court first questioned as to whether the conduct did indeed occur and whether or not it was welcomed.

Based on Ms Horman’s letter to her manager that she was seeking action from management, the court found that the conduct was indeed unwelcomed. Next, the court raised the issue as to whether a reasonable person would assume Ms Horman would find the conduct offensive.

In deciding so, the court accepted that Ms Horman engaged in physical contact with other employees and shared explicit sexual photographs of herself. However, the court still held that a reasonable person would assume that Ms Horman would be offended by the behaviour conducted by her fellow colleagues.

Based on the above case, the sharing of sexual and naked photos does not make it okay for the person to be sexually harassed. As such, business should consider these elements before turning to dismiss a creator of OnlyFans content. If colleagues at work are subscribed to the account, it should not provide an avenue or environment for unwanted and unsolicited sexual comments or advancements to occur.

Can You Be Dismissed For having OnlyFans Account?
Be aware of the don’ts. Harassment by social media has increased with a greater percentage of employees working from home.

Sexual Harassment can include:

  • Sexual suggestive comments or jokes
  • Intrusive questions about private life or physical appearance
  • Unwanted invitations or requests for dates or sex
  • Sending sexually explicit or suggestive pictures or gifts to a worker.
  • Displaying sexually explicit or suggestive pictures or objects in the work environment
  • Intimidating or threatening behaviors
  • Inappropriate physical contact
  • Sexually explicit or suggestive emails, SMS or social media, circulating pornography.
  • Sexually graphic imagery, or sharing or threatening to share intimate images or film without consent.

Grey area of sexual harassment

OnlyFans has created a grey area in the workplace of sexual harassment. However, it is an outside of work activity and should not be brought into the workplace under any kinds of means. If it does get brought into the workplace, managers should ensure they act professionally. Fairly and reasonably before considering terminating such employment. Be aware of the different between casting a moral view and a legal view beit it can be difficult and confusing at times.

Future employment

Being sacked from her employment for having OnlyFans is one thing, but being denied employment is another. If you are looking for a job whilst creating OnlyFans content. You should be aware that your account may be found in a background check.

Some employers may conduct a social media background check to decide whether they should employ the person who posts drunken images on their Facebook account with drugs sitting in the background. Just like a social media platform, OnlyFans may be considered a reason to not employ the applicant. This raises the issue if it would be considered discrimination to not employ someone who participates in those activities.

Many employers will decide not to employ someone purely based on the kinds of photos they post on social media. Or the fact they are covered in tattoos, or piercings. Or perhaps they post dead animals they have shot on the weekend all over their Instagram.

Ms Gauge retired from being a porn-star in 2005. In order to go to school and receive a certificate as a surgical technician. Ms Gauge graduated the course top of her class. When Ms Gauge went applying for jobs in the new field. Whispers circulated the environment and people began to feel awkward around her. Ms Gauge then left the business and applied for other jobs where less experiences and less skillful people were being employed over her.

Everybody wants to be treated fairly. But you still want your rights to privacy, nits all part of the work life balance. These days there’s a record of everything.

Past job had been affecting her ability for employment

Ms Gauge was exhausted by the way her past job had been affecting her ability for employment now. That she had no other option but to go back to her career as a porn-star. It seemed for Ms Gauge that at every job she applied for she either had to disclose her background and past jobs. Or hide her past and hope that when the truth comes out she will keep her job.

In the USA, it is regarded difficult to win a discrimination claim against previously being a sex worker. Under their discrimination laws, there is no protection for being fired due to their past porn career.

In Australia, you may be discriminated against based on your race, colour, sex, sexual orientation, age, physical or mental disability. Also marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.  As such, there is no specific protection of sex workers in the Fair Work Act 2009. However, if a person’s sex work starts leading to sexual harassment. Then the person is protected against being sexually harassed in the workplace.

A company will employ someone they believe fits their morals, values and environment. If they believe the façade a person shares on social media is indicative of that, then they have the power to make those decisions.

Conclusion to Can You Be Dismissed For having OnlyFans Account?

Overall, being dismissed for having OnlyFans would be unfair based on the company/industry you work. The business has the discretionary to decide whether or not it is something they condone. Even if it is an outside of work activity. Although, they need to be considerate as to whether the engagement in such platform is actually causing harm to the success of the business.

Furthermore, just because a person decides to create content for OnlyFans. Does not mean it is okay for their photos and videos to be shared around the work environment. Moreover, it does not provide permission or the encouragement of any sexual harassment.

I hope you enjoyed the article “Can You Be Dismissed For having OnlyFans Account?” We are A Whole New Approach, we take on the difficult subjects. We are at the for front of workplace commentary, research, and representation. (please read a few of the blogs). AWNA is proud of its staff and the results we get for our clients. Anything to do with Fairwork Australia, Fair work Commission. Including general protection claims, serious misconduct, probation, constructive dismissals.

Call us for advice its free, prompt and to the point. 1800 333 666

We work in all states, including Victoria, NSW, QLD, WA

An article on Know your rights, “Workers rights what are they/” click here

Whatever happens you are entitled to procedural fairness, click here

What’s your unfair dismissal claim worth, click here

Workers Rights what are they?

Workers Rights what are they?
We all know we have workers, employment rights, but what are they? How do i ensure i protect myself? Not get dismissed? Unfairly made redundant/ Sacked on sick leave? I will answer these questions today.

Workers Rights what are they?

Workers Rights what are they? Since 1 January 2010, the Fair Work Act 2009 (Cth) (the Act) has been in operation. This Act applies to most Australian workplaces and regulates the employer/employee relationship by stipulating all workers rights. Contained within this legislation are the National Employment Standards (NES). General protections provisions, the rights of full-time, part-time and casual workers, unfair dismissal provisions and much more.

The NES and Contracts of Employment

NES has 10 minimum employment entitlements that must be provided to all employees by employers. The NES cover the following:

  • maximum weekly hours of work
  • entitlements to leave and public holiday pay;
  • flexible working arrangements;
  • the provision of a Fair Work Information Statement; and
  • notice of termination and redundancy pay.

The NES provide a safety net for employees and stipulate a variety of workers rights. NES guarantees the minimum standards of work conditions and employee work entitlements. Whether an employee is employed on a full time, casual or part-time basis. However, only certain NES entitlements apply to casual employees.

The minimum workers’ rights and entitlements in Australia, as set out in the NES, are not replaced by a contract of employment entered into by an employee and an employer. If an entitlement in a contract is less than the NES or excludes the NES, that term has no effect as you cannot contract out of statute or law.

For example. If a full-time employee agrees in their contract of employment to only receive five days personal/Carer’s leave per year. That employee (despite what the contract says) is still entitled to 10 days paid personal/Carer’s leave.

This is because the NES state that a full-time employee is entitled to 10 days of paid personal/carer’s leave per year. However, if the contract of employment provides entitlements or terms that are of more benefit or favourable to an employee. Those terms and entitlements are enforceable as they are above the minimum workers rights set by the NES.

Great Boss’s pay properly

I want to be treated fairly
We get allot of calls, about how they have a great boss, but he doesn’t allow me time off. Doesn’t pay overtime. I haven’t had a holiday for years and they won’t tell me how much holidays I’m owed. Of course he’s great, he’s ripping you off. He’s getting the benefit. Your entitled to what’s right.

The Rights of Full-Time Employees

Full-time employees are employed on a permanent basis under an ongoing contract of employment. Under the NES, permanent full-time employees are entitled to the following minimum conditions of employment:

  • to work a maximum of 38 hours per week. However, an employer can request or require that an employee work additional hours, but only if the additional hours are considered reasonable;
  • the right to request a flexible working arrangement if the full-time employee meets the eligibility requirements. And are either a parent or a person responsible for the care of young children. A carer, have a disability, are 55 years of age or older or experiencing violence from a family member. (or providing care or support to immediate family or a member of their household experiencing violence).
  • paid annual leave of four weeks per year;
  • unpaid parental leave of up to 12 months and the right to request unpaid parental leave for another 12 months. To be eligible, a full-time employee must have completed 12 months service with their employer. Have or will have the responsibility of a child;
  • paid personal/carer’s leave of up to 10 days per year, two days unpaid carer’s leave and two days of compassionate leave as required;

Written notice

  • written notice of the day of termination, in the event an employee’s employment is ended by their employer. However, if an exception applies, such as the employee’s employment was terminated due to the employee’s serious misconduct. An employer is not obligated to provide the employee with notice.
  • Under the NES, an employer is also required to give an employee a certain amount of notice. Or pay a notice payment in lieu of the employee working out the applicable notice period. The amount of notice depends on how long the employee has worked for the employer.
  • If an employee’s service with their employer amounts to one year. The employee is entitled to a minimum of one week’s notice from their employer. Alternatively a payment of one week’s pay instead of the employer giving the employee the notice.
  • The NES also provides that if an employee has completed two years continuous service with their employer and they are aged 45 years or over, they are entitled to an additional week of notice. It is important to note that if an employee’s contract of employment sets out notice arrangements that are more beneficial than the minimum provided by the NES, then those arrangements will usually apply.

Employers Obligations

employee rights, don't be bullied
Its a criminal offence if your employer knowingly cheats you out of your entitlements, wages. The various authorities take it very seriously if your not paid as per the NES and the award system.

Redundancy entitlements

  • in the event an employer makes an employee’s position of employment redundant. A full-time employee may also be entitled to redundancy pay under the NES. The NES provides for up to 16 weeks of redundancy pay is payable depending on the length of their service with their employer.
  • However, redundancy pay is not payable in all circumstances under the NES. For example, if an employee works for a Small Business Employer, then they are not entitled to redundancy pay under the NES. Though, it is important to also check an employee’s contract of employment for any entitlements in relation to redundancy pay; and
  • on the commencement of their employment with an employer, an employee must be provided with a copy of the Fair Work Information Statement.
  • The statement contains information about the NES, modern awards, agreement making, the rights and benefits of employees, and the roles of the Fair Work Commission and the Fair Work Ombudsman.

The Rights of Part-Time Employees

Part-time employees are also employed on a permanent basis, but they work less than 38 ordinary hours per week. Part-time employees are entitled to the same terms and conditions of employment as a full-time employee, however, their entitlements are generally pro-rated to how many hours of work they perform each week.

For example, a part-time employee is still entitled to four weeks of annual leave per year under the NES, but this entitlement is calculated on how many hours the part-time employee works each week. This means that if a part-time employee works 20 hours per week, their annual leave payment is calculated on a 20 hour week (and not a 38 hour week).

The Rights of Casual Employees

Casual employees do not have guaranteed hours of work, are employed on a per shift basis, do not receive paid leave entitlements for time away from work, notice of termination and any associated payments or redundancy pay.

Casuals employees are paid for each hour they work and their pay is based on the number of hours worked each week. However, a casual employee is not guaranteed a set amount of hours of work per week like an employee employed on a permanent basis is.

In light of the nature of casual employment, casual employees are paid a higher hourly rate of pay, called a casual loading. This loading is in lieu of some benefits that full-time and part-time employees receive from the employer. Such as paid annual and personal/carer’s leave, notice of termination and to compensate for the lack of security of their employment.

I love my job, i don't want to be unfair dismissed
Some employees, forgo entitlements because they bare happily employed. They want to help out. Your employer has a legal obligation to pay you properly. The article has made the point, the employee and the employer cannot contact out of this. Remember the onus is on the employer.

Casual employees are entitled to the following minimum conditions of employment.

  • to work less than 38 hours per week and only work reasonable additional hours if it is reasonable.
  • two days unpaid carer’s leave and two days unpaid compassionate leave for each occasion that this type of leave is requested.
  • unpaid community service leave.
  • to be absent from work on a public holiday. However, unless a casual employee works the public holiday they will receive no payment for this day off.
  • unpaid parental leave entitlements and the right to request flexible working arrangements. If they have been employed with their employer for 12 months or more on a regular and systematic basis with an expectation of ongoing employment.

Unfair Dismissal

The Act also provides for other fair conditions of work and protections for all employees. As part of a workers rights, they are protected from unfair dismissal under the Act. If a permanent employee is of the view they have been unfairly dismissed they are eligible to make an unfair dismissal claim.

This is if they have worked for their employer for six months or if their employer is a Small Business Employer. A period of 12 months a Small Business Employer is an employer who employs less than 15 employees. In addition, employees must earn less than the high-income threshold or be covered by a modern award or enterprise agreement.

Casual workers also have the right to lodge a claim of unfair dismissal if they were employed on a regular and systematic basis with a reasonable expectation of ongoing work.

Applications for unfair dismissal must be filed within 21 days from the date the dismissal took effect. Late filing may be accepted but only if the Commission finds there has been exceptional circumstances. If a dismissed employee is filing outside the 21-day period, they will need to provide an explanation of the exceptional circumstances that caused them to not file within the statutory time period.

General Protections

The Act also provide workers with protection from adverse action under the General Protections provisions. Employers are prohibited from taking adverse action against an employee because of a workplace right. Because they have exercised a workplace right. Participating in industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements. Adverse actions can include dismissal of an employee.

However it encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them.

Whilst there is no jurisdictional criteria as per the unfair dismissal regime, employees face the difficulty of linking the exercising of a workplace right and the adverse action. The adverse action must have been taken because of the workplace right (i.e. complaint). 

workers rights what are they
Not sure, what to do? My rights? Get advice

Placing undue influence (coercion)

General protections also provide workers with protection from their employer coercing them into taking (or not taking) a particular action or placing undue influence or pressure on the employee to change their conditions of work or knowingly or recklessly misrepresenting a workplace right or obligations in relation to an industrial activity.

Applications for general protections must be filed within 21 days from the date the dismissal took effect. Late filing may be accepted but only if the Commission finds there has been exceptional circumstances. If a dismissed employee is filing outside the 21-day period, they will need to provide an explanation of the exceptional circumstances that caused them to not file within the statutory time period.

Discrimination

Workers have a right to be protected from discrimination in the workplace. It is unlawful for an employer to take action against an employee because of their race, colour, sex, sexual orientation, age, physical or mental disability. Additionally marital status, family or Carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Bullying

As part of their workers’ rights, employees are protected from being bullied and harassed at work. The Act has anti-bullying provisions and employees can make an application to stop bullying if they are being bullied in the workplace. Bullying has to be repeated and unreasonable management action.

Workers rights what are they?, closing comment

Workers rights is very much a individual thing. Each employees circumstances are different. a right that’s important to one employees is not necessarily important to another. Do you need free and confidential advice about your unique workplace situation? Are you looking at making a claim but are unsure about how to approach the situation? Workers rights what are they?, make the call, find out today

To discuss possible representation or to seek advice regarding your unique circumstances, please give us a free call on 1800 333 666. All Fairwork Australia or Fair work Commission matters. Including, abandonment of employment, probation, serious misconduct, constructive dismissal issues.

We work in all states, including Victoria, NSW, QLD, SA, WA, TAS

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A article on workers rights, sue your employer, that will be of interest to you, Click here

Maintaining your dignity if your dismissed and your rights, Click here

Casuals and their rights, click here

What does being a casual employee mean? click here

Workers rights in 2022, click here

Dismissed for not dressing properly, click here

Toxic and bullying Workplaces 10 ways to stop it

toxic and bullying workplaces
You should be entitled to grow, not put down by the employer., I deliberately put a photo of a female and a baby, you should feel this safe at work. That’s the point I want to make.

Anti-bullying and anti-discrimination laws

Toxic and bullying workplaces can be experienced in many forms and can ruin a great job. A toxic workplace includes conduct that is severe and pervasive enough that a reasonable person would consider the workplace intimidating, hostile or abusive. It can include acts of assault, intimidation and ridicule. In turn which can be categorized as physical or emotional harassment.

These forms of harassment are protected and governed under anti-bullying and anti-discrimination laws. Which act to ensure a workplace that is free from toxic behaviour. Toxic behaviour in a workplace environment against the law when it falls under the definition of bullying. Alternatively when a person is treated less favorably on the basis of certain personal characteristics, constituting discrimination.

Examples of Toxic Behaviour

Toxic behaviour is unlawful when it falls within the definition of workplace bullying. Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker. Or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.

In Amie Mac v Bank of Queensland Limited and Others. The Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were

intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorizing, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.

Vice President Hatcher

These examples on their own or in combination would indicate a toxic workplace environment.

Toxic and bullying workplaces, Is it a risk to health and safety?

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

Reasonable management action will not constitute bullying.

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

It considers what action is taken. The facts and circumstances giving rise to the requirement for action. The way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. This means that even though the reasonable management action may appear to be toxic. Tt may not always constitute workplace bullying under the statutory definition.

to be treated fairly
Everybody wants to be treated with respect, given a fair go.

Making a Complaint about Toxic Workplace Behaviour

If you feel that you work in a toxic workplace environment, there are a number of things you can do. Firstly, you can tell the employees involved to stop with their conduct that is causing a toxic workplace environment. Sometimes, this is enough to make the toxic behaviour stop and for the employee to realize. That their actions are creating a threat to your health and safety.  

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

If bullied the employee can lodge a Form F72

Should this fail and the Company has not taken any steps to address or fix the toxic workplace. The employee can seek assistance by lodging a claim to an external body such as the FWC and fight for their rights. If an employee is still employed by an employer and wishes to make an application in regards to the toxic workplace, the employee can lodge a Form F72. Application for an order to stop bullying.

This application seeks a preventative remedy, not remedial, punitive or compensatory. If appropriate, the Fair Work Commission will schedule a mediation session for the parties involved to try to help them resolve the case.

Benefits of mediation

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

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

toxic and bullying workplaces, violence is never acceptable
This is wrong, violence in the workplace can be a crime. Surprisingly it still happens. It can be common place in some workplaces. Years ago we issued a unfair dismissal claim against a brick factory. Workers sorted out their issues by throwing bricks at each other. These days are supposed to be gone. But are they?

Non-Dismissal Disputes

If an employee is still employed and has complained about the toxic workplace environment to no avail. Or have since been subject to adverse treatment, the employee can lodge an F8C Application – General Protections Application Not Involving Dismissal.

The employee will need to demonstrate that the employer has subjected an employee to a form of adverse action (not including termination). And they believe this action was done because they have exercised a workplace right by complaining. About sexual harassment or discrimination in the workplace. If the employee has been terminated, they can lodge an F8 Application – General Protections Application Involving Dismissal.

Adverse actions can include as prejudicing the employee or injuring the employee in his or her employment. The employee can argue that the Company’s inaction constitutes adverse action as they are refusing or failing to remedy and address the complaint.

Once a complaint is lodged, with the Fair work Commission

Once a complaint is lodged The Commission will only hold a private conference to deal with the dispute if both parties agree to attend. If one of the parties to a non-dismissal dispute does not agree to participate in a conference. Or if the dispute remains unresolved after the conference. The employee can choose to make an application to the Federal Court or the Federal Circuit Court to deal with the matter. During a conference, a Commission Member will work with those involved to reach an agreed resolution to the dispute. The Commission Member may make a recommendation or express an opinion during the conference. however cannot make a binding final decision or an order.

The employee can seek specific remedies as to what they would like to occur in order to resume a constructive and cooperative employment relationship. If the employee believes the relationship is beyond repair and they no longer want to be employed. The employee can see an exit package, by way of resignation, to terminate the employment relationship.

Pain and suffering compensation

If the employee can demonstrate pain and suffering as a result of the harassment suffered, the employee may seek compensation in the form of general damages. You must have medical evidence to support this. The paid and suffering must be in the course of your employment. If you want assistant or guidance in lodging your application against your employer, please give us a call on 1800 333 666. For a free and confidential consultation.

toxic and bullying workplaces

Dismissal Disputes

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

If you want assistant or guidance in lodging your application against your employer. Please give us a call on 1800 333 666 for a free and confidential consultation.

help is here
Be protected from toxic and bullying workplaces, read our blogs, give us a call, its free.

Toxic and bullying Workplaces

I hope you you found “Toxic and bullying Workplaces, 10 ways to stop it” off some help. Its not easy out there, we know that, we are here to help. Companies are living organism’s, along with the complexity of workplaces and living. It feeds into a toxic life that needs to be avoided. AWNA are leaders in workplace commentary, advice and research. All Fairwork Australia matters, including redundancy, general protection claims, dismissal and probation issues, whatever call us now. We work in all states including Victoria, NSW, QLD

Another article on toxic workplaces that may be informative to you, click here

Another resource on toxic workplace culture that may be helpful to you, click here

Bullying by the mean girls, click here

Types of workplace harassment, click here

Abandonment of employment how to avoid it

Abandonment of employment how to avoid it
Terminated for not turning up once, i forgot to tell the employer. I didn’t abandoned by employment, I need my job. They cannot even look at me, its an excuse to save an redundancy package

Abandonment of employment how to avoid it

I think we have all faced this situation somewhere in our work life. With the stresses of the economy. With the ending of the pandemic, employers are reacting a lot quicker and decisively than previously. Read on get the answers, what’s the legal definition,? for abandonment of employment, how to avoid it. What can I do?. Can I be dismissed? Is this a resignation? Please read on.

Definition of abandonment of employment

The Fair Work Ombudsman defines ‘abandonment of employment’ as occurring when an employee fails to attend work for an unreasonable period of time. When the employee does not have a reasonable excuse for failing to attend. Who does not communicate with their employer regarding their absence. It is important to note that modern awards do not contain abandonment of employment clauses. Although this used to be the case.

Although the ensuing discussions involve references to various awards. The applicability of these cases are highly relevant to estimating whether an employee has actually abandoned their employment. What the subsequent processes would be.

Within the previous operation of Clause 21 of the Manufacturing and Associated Industries and Occupations Award 2020. An employee who remained absent from work for a period longer than three days, would be considered as having abandoned their employment. This is without evidence to the contrary. Furthermore, if an employee is taken to have abandoned their employment, they have a period of 14 days from their last day at work to satisfy the employer that they had reasonable cause for the absence.

However, if the employee is unable to meet these conditions. They will be taken to have abandoned their employment, as of the last day that they attended work. Although these terms relate primarily to the Manufacturing Award, the other Awards used to have similar provisions.

As aforementioned, these provisions within the Awards are no longer operational. But their provide important guidelines and benchmarks around reasonable periods of times within which an employee may be taken to have abandoned their employment.

Abandonment of employment how to avoid it
Employer checking how late you are, this is not abandoning your employment. This may be a warning depending on the circumstances

Can I be automatically terminated for abandoning employment?

In Boguslaw Bienias v Iplex Pipelines. The Full Bench of the Fair work Commission found that abandonment of employment does not automatically mean that an employee is terminated. Or dismissed for that matter. In fact, the obligation is on the employer to take a positive step to conclude that the employee was not absent for a reasonable cause.

This obligation may be satisfied by making attempts to contact the employee. Requesting supporting documentation for the explanations provided to them. However, if the employer does not terminate the employee or takes some disciplinary action short of termination, such as standing them down, then the employment relationship is still taken to have continued.

This decision suggests that an individual cannot be automatically terminated simply because they did not attend work for a period longer than three days. Without communication with their employer regarding a reasonable cause for doing so. In fact, if the employer suspects that an employee has abandoned their employment, they must act to terminate the employee or take other relevant disciplinary action.

Employee’s abandonment of employment constitutes serious misconduct

However, the employer may argue that the employee’s abandonment of employment constitutes serious misconduct. In turn providing them with a reason to terminate the employee. This is because the employee’s absence from work may demonstrate a willingness to act in a manner that is inconsistent with the continuation of the employment relationship. As such, abandonment of employment falls within the definition of serious misconduct.

Nevertheless, in E N Ramsbottom Ltd v Chambers. The New Zealand Court of Appeal stated employers must exercise caution and should not too readily draw an inference of abandonment of employment. In fact, if the employer does seek to argue that the employee has been absent from work. Has therefore abandoned their employment, they are burdened with a high threshold to prove this nexus and establish a causal connection between absence and abandonment.

Abandonment of employment how to avoid it
Telling the employer why I cannot get to work.

What if I cannot go to work because I am injured?

In his decision, Hatcher VP distinguished abandonment of employment constituting serious misconduct and abandonment of employment arising from some incapacity. At paragraph [30], he states:

“[I]f the absence is caused by an incapacity (such as an injury) to attend work for the requisite period. And the employer does not accept that this constitutes a reasonable cause for the absence (because, say the injury was caused by the employee’s own negligence or was self-inflicted). A termination for such absence may not be characterized as being for serious misconduct.”

Vice President Hatcher

This means that if an employee is injured. Even if they caused that injury themselves and it is entirely unrelated to the course of their employment, the employer cannot argue that they have abandoned employment. In such situations, as the employee is physically incapacitated from attending work. Their absence could not be construed as amounting to abandon of employment and serious misconduct. Consequently, the employee cannot be terminated for the sole reason of failing to attend work due to their injury.

What if I cannot go to work because of a natural disaster?

Within the current climate and the floods in Brisbane, the question arises as to whether employees can be terminated or held to have abandoned their employment if they are unable to attend their worksite due to a natural disaster.

Remote Work

The first consideration is the type of work you are completing and whether it is practicable to complete your work remotely, from home. The advent of the COVID-19 pandemic and the multiple lockdown periods have resulted in businesses being able to transition quickly. And efficiently into remote working arrangements.

As such, if it is possible for you to continue working from home and completing the essential responsibilities of your role. Then your employer is likely to communicate with you regarding such arrangements in situations where you cannot physically travel to the worksite.

However, if the nature of your role requires that you be present on premises. However you are unable to do so because:

The streets are flooded.

There are ravenous bushfires

Some other natural disaster has struck,

Then the incapacitation argument can be raised. It is arguable that you are physically incapacitated from attending the worksite. Through no fault of your own, and in such circumstances, being unable to attend work cannot be construed as an abandonment of employment.

What if I can’t go to work?
The stress can be considerable, when your job is under threat. Am I dismissed, not dismissed?. Not turning up what’s it mean?

Communication

In such situations, it is highly advisable that you communicate with your employer. A lot of the tine abandonment of employment is really a misunderstanding. Contact them as soon as possible to advise them that you are unable to work or to attend the work premises. In Park v Ceres Enterprises Limited (Auckland). The Employment Relations Authority of Auckland emphasized the importance of maintaining communication with employers, where possible. In that case, the Member found that the Applicant had multiple opportunities in which she could contact her employer and explain her circumstances, but had failed to do so.

The Applicant had travelled overseas and upon her return. Was able to contact her employer, but chose not to do so, and when a subsequent earthquake struck, she argued that the earthquake had diminished her ability to communicate with the employer. The Member rejected this argument and stated that she had abandoned her employment because she could have contacted her employer and extended her leave. However she consciously chose to do so and her decision was not impacted by the earthquake.

Although this is a case concerning the Christchurch earthquakes, its application is highly relevant in Australia to establish the importance of maintaining communication with your employer and informing them of any incapacity regarding attendance at work.

The Ability to Travel to Work

Another relevant consideration is whether you are reasonably able to travel to work for the purposes of conducting your operations. It may be argued that if there are reasonable means for you to attend the worksite, but you choose not do utilise these methods, then you have abandoned your employment.

In Maria Jane Baker v Vladimir Hardi Proprietor. Commissioner S Wood of the Western Australian Industrial Relations Commission dismissed the Applicant’s unfair dismissal application. Even though the floods had temporarily blocked her access routes to attend the workplace. In that case, the Applicant could not attend work for the period of one week due to the flooding in her neighbourhood.

However after one week, an alternative route was available that the Applicant could have used to attend work. As the Applicant had not done so, Commissioner Wood found that she had in fact abandoned her employment. This is because she elected to travel to Perth and did not communicate this to her employer.

Consequently, it is important to closely monitor the situation if you have been impacted by a natural disaster and to communicate your circumstances with your employer.

What can I do if my house and family have been affected?

If you cannot attend the workplace because your house and family have been affected by a natural disaster, it is possible for you to take personal leave or compassionate leave.

What if I can’t go to work?, I'm so stressed out. worried i will be dismissed
I’m facing a dismissal, yet not being at work was not my fault. The employer won’t listen to me, they don’t care.

Personal Leave

Under s 97 of the Fair Work Act 2009 (Cth) (hereafter referred to as ‘the Act’). Employees who are not casual employees can take paid personal or Carer’s leave if they need to take care of themselves or a family member. This can be after such natural disasters have occurred. If you are seeking to take personal or Carer’s leave, ensure that you obtain a doctor’s certificate as evidence of your unfitness for work. Clearly communicate with your employer regarding the taking of your leave and the expected duration that you will be on leave.

Furthermore, it is advisable that you check your accrued entitlements to ensure that you have accrued sufficient personal leave days for the period of time that you are expecting to not attend work. If your accrued personal leave/Carer’s leave days have already been used, or if you are a casual employee, then you are entitled to two days of unpaid Carer’s leave. In order to provide support and care to an immediate family member. Importantly to note. This unpaid leave entitlement is only applicable where your family member is ill or injured. Or an unexpected emergency (i.e. natural disaster) has occurred.

Compassionate Leave

If one of your direct family members has unfortunately contracted a life-threatening injury or has passed away because of the natural disaster, then you are also entitled to take two days of compassionate leave. Once again, it is crucial that you notify your employer about your intention to take leave and inform them of the expected duration that you expect to remain on leave.

Looking for a job. I’m waiting on a answer if i have a job, yes, i didn’t turn up, but i don’t deserve the sack.

Take Away Messages

Abandonment of employment is a serious concern and employers who believe that an employee has abandoned their employment. The Employer may take the necessary disciplinary action to rectify the situation. Consequently, it is crucial that employees maintain open streams of communication with their employer. If they are planning on remaining absent from work for a duration of time. They should / have to communicate this with their employer. (preferably in writing, then you have a evidence trail)

In situations where the employee is injured, incapacitated or has been adversely impacted by natural disasters. It is difficult for an employer to prove that they abandoned their employment. This is because these facts alone do not suggest that the employee acted to bring the employment relationship to an end. Nevertheless, employees should remain diligent in communicating their circumstances with their employers. Especially where they believe they will be absent from work for extended period.

Conclusion to: Abandonment of employment how to avoid it

I hope “Abandonment of employment how to avoid” it was helpful for you. Looking for help?, Advice? Give us a call, it cost you nothing to talk to us. We are leaders in workplace commentary, representation and advice. We work in all states, including Victoria, NSW, QLD. Anything to do with the Fair work Australia regime. adverse action, dismissal from a small business, redundancy, amongst, others, get that advice today.

An article that may interest you, being off sick click here

Not given shifts, dismissal?, because you didn’t go to work? click here

Dismissal email say (abandonment of employment) click here

Resigned in style, click here


4 Steps to contesting your warning

4 Steps to contesting your warning
The shock of just being handed your warning. No discussion. This is unfair, and may form part of a successful unfair dismissal claim. Its not necessarily 3 strikes and your out. You are entitled to a process that’s fair, given the circumstances.

4 Steps to contesting your warning

If you don’t want to end up with a unfair dismissal. Losing your job when you shouldn’t have. It’s important to contest/ work though the process properly to keep your job. 4 Steps to contesting your warning is the process to do so. Any article that improves your knowledge on your employment rights is an important read. so please continue.

Performance and Conduct

When your performance and conduct dictate the success of your employer’s business, it is important that you are doing your best work. If you are under-performing and not meeting business expectations or standards, you may be at risk of dismissal. Prior to any decision being made to dismiss an employee, it is important a proper disciplinary process is conducted. This is in order for the business to minimize their risk of unfairly dismissing the employee. If your employer does not following the following steps, they may not have mitigated their risk of unfair dismissal. Contesting your warning has to be done with respect.

Step 1: Put the employee on informal notice

If you are not performing at the required standard, it is important that your employer has an informal chat with you about this concern. If your employer brings up their concerns about your alleged poor performance. Be sure to listen to what they are saying and provide any response. For instance, the employer’s concerns about your performance could be a result of miscommunication. Or a misunderstanding, a personal crisis or an already high work load.

If these examples apply to you, it is important that this is communicated to the employer so they are aware of your position and current circumstances. in this initial discussion. The employer should take the opportunity to identify the specific areas that you need to improve on. Also whether the employer can assist you in any way to meet these expectations.

Step 2: The formal meeting

If an informal chat has not been successful and your employer still has concerns about your work standard, they should schedule a formal meeting to address these concerns.The result of such a formal meeting could be a Performance Improvement Plan (PIP). If this is appropriate. The purpose of a PIP is to ensure that you have a clear understanding your employer’s concerns, what the employer expects of you and how you are to meet these expectations.

The PIP should detail any support mechanisms that will be available to you in this process as well as a schedule as to when you would meet to discuss your progress with the PIP. If a PIP is issued, the employer should also have regular meetings with you to ensure you are on track to completing the PIP. If your employer is not satisfied that you are progressing well through the PIP, the employer may then progress to issuing you with a warning.

Whilst warning can be nasty business. Good employees maintain a positive approach is dealing with them. Good employers want you to improve, to not bully you out of your job

Step 3: Warnings for poor performance

If your performance still hasn’t improved despite the PIP. The employer may then progress with disciplinary action such as issuing you with a warning. If an employee is issued with a warning, this should be done through a formal meeting in which at least 24 hour notice is provided. Your employer should also offer you an opportunity to bring a support person, if you wish. During this meeting, the employer has the opportunity to issue a few types of warnings:

Types of warnings

  • Verbal Warning: Your employer can issue you with a verbal warning and put you on notice about the unsatisfactory work performance. This is the least severe form of punishment and should be considered as the first point of disciplinary action.
  • Written Warning: Depending on the level of under performance, your employer may decide to issue you with a formal written warning. This type of warning, as the name suggests, is a written letter which notifies the employee that their performance is not up to standard. This type of warning should again put the employee on notice that if their work performance does not improve, they could face further disciplinary action, including termination. Given this is a more severe form of punishment, it is important that your employer has followed the first two steps (i.e. informal chat, PIP etc.) to ensure they have given you ample opportunity to improve your performance before this disciplinary action is taken.
  • A final written warning may be issued to you at any time when an employee’s performance is unsatisfactory. You have received an earlier written warning for a related issue but your performance has not improved to the satisfaction of your employer. A final written warning could also be issued depending on the nature of the employee’s performance justifies the issue of a final written warning. If the poor performance is serious and well below any acceptable standard, this type of warning could be a issue.

Warning and determining a dismissal is harsh, unjust and unreasonable (contesting your warning)

In determining whether a dismissal is harsh, unjust and unreasonable under the FW Act, s.387(e). This looks at whether any warnings about poor performance have been issued prior to dismissal. A warning for the purposes of s.387(e) must clearly identify:

  • the areas of deficiency in the employee’s performance;
  • the assistance or training that might be provided;
  • the standards required; and
  • a reasonable timeframe within which the employee is required to meet
    such standards.
  • The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”

Not agreeing to the warning (contesting your warning)

If you have been issued with any of these warnings and you do not agree with them, it is important to note that there are ways of challenging the warning This is particularly relevant if it is a written warning. If you have been issued with a written warning which you would like to contest. It is important that you challenge or defend the warning in writing also. After you have been issued with the written warning, it is important you send an email or letter to the employer express your differing view. If its in writing then you have a record, if you end up dismissed. You can thank your employer for the warning but express that you do not agree and provide reasons for this.

If you have a justifiable response to your warning which explains and defends the employer’s concerns, it is important this is added to this letter or email. You can also request that the employer make a file note that you have contested the warning and do not agree with it. This will ensure that if you are dismissed for similar issues down the track, your employer has a written record of your opposing view. It is also important that you keep a record of your warnings and contested warnings in case of dismissal.

Step 4: Termination

If your employment continued to not improve and your employer is not confident that your performance will not improve. They may decide to terminate your employment. However, depending on how steps 1-3 were conducted, the employee may be able to lodge an unfair dismissal claim. In part because of the contesting of your warning. If you have contested your warnings and thus you feel as though the dismissal is not justified, you can lodge an unfair dismissal claim in the Fair Work Commission.

warning process
Get advice, its important. Employees assume Employers will do the right thing. Or they will never get rid of me. They cannot survive without me. Don’t find out the hard way. If you need a support person as part of the investigation or process, give us a call.

4 Steps to contesting your warning

Thank you for reading “4 Steps to contesting your warning’. Its important you know your rights. That your given a fair go. We are a Whole New Approach P/L, leading workplace representatives and advisors. All Fair work Australia, Fair work Commission, abandonment of employment, sacked or about to be, give us a call. We are here for you.

Advice is free, prompt and to the point. 1800 333 666

An article on procedural fairness in an investigation, click here

The role of a support person (during the warning process), click here


Redundant Employees, is there justice in the FWC

redundancy
For redundant employees, dignity is important when you are made redundant and in turn dismissed. In theory you have done nothing wrong, that’s why consultation is so important. To work through what’s going on for your potential redundancy and dismissal. Maybe you can save your job, be relocated, go part time, casual.

Redundant Employees, is there justice in the FWC

Being made redundant is the dismissal / termination of choice by employers. This is particularly with small business (less than 15 employees) that are exempt from paying redundancy. Redundant Employees, is there justice in the FWC, is an important question. Lets explore the question and get the answers.

What does the Fair work Act say

“Redundant Employees, is there justice in the FWC’. This is what it appears when you find out you cannot pursue your claim in the Fair work Commission. An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy. A dismissal is a case of genuine redundancy when the employer no longer requires the person’s job to be performed by anyone.

If its due to changes in the operational requirements of the employer’s enterprise. Also the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

When is a Dismissal is NOT a case of genuine redundancy?

A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within the employer’s enterprise. Or the enterprise of an associated entity of the employer. If an employer believes that an employee’s dismissal was a genuine redundancy. When or if the employee makes an application for an unfair dismissal remedy the employer may make a jurisdictional objection to that application.

If an employer can prove that the requirements of s.389 of the Fair Work Act 2009 (Cth) have been met, the Fair work Commission will have no jurisdiction to hear the unfair dismissal claim. However, if the requirements of s.389 of the Fair Work Act 2009 (Cth) have not been met, the Commission must determine if the dismissal was unfair.

Has your employer met their obligations under s.389 of the Fair Work Act 2009 (Cth)?

First Element

In redundant employees in determining whether your redundancy is genuine, the first question you must ask yourself is whether or not your job is still available. If the answer is no, then it is arguable that because your role no longer exists. Or is no longer required by the Company, your redundancy is likely to be genuine. If your answer is yes and your role has been replaced due to a reshuffle of staff or the Company’s need to downsize. It then depends on the other factors under s.389 of the Fair Work Act 2009 (Cth), your redundancy may not be genuine.

Second Element

The second element that the Company must satisfy in order for a redundancy to be deemed genuine. Is the obligation to consult with employees about the redundancy. There is an obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee. That modern award or enterprise agreement contains requirements (which they often do) to consult about redundancy.

Third Element

The third element that the Company must satisfy is whether it would have been reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise. Or the enterprise of an associated entity of the employer. If the Company does not consult with an employee, then it is arguably that the reasonable steps have not been taken to redeploy the employee. As no discussion took place and so no alternatives were assessed.

redundant
Redundant employees, waiting to be made redundant is never easy. What’s going on?, what have I done wrong? The companies making plenty of money, they don’t need to do this.

Consultation what’s this mean

If the Company did consult, then the Fair Work Commission will look at the effectiveness of this consultation Whether the Company took into account various factors when assessing possible redeployment.

Process for selecting employees for redundancy is not relevant

The process for selecting employees for redundancy is not relevant to whether the dismissal was a genuine redundancy. Or whether there was a valid reason for dismissal based on capacity. It is within the Company’s rights to run their business as they please. So it is at their discretion who they chose to make redundant.

However, if an employer has chosen to make you redundant for a prohibited reason. Such as because you’re pregnant, illness, sex this is an unlawful selection. Therefore the process may be relevant to a claim under the general protections provisions of the Fair Work Act. Or under various state or federal anti-discrimination laws.

Is there an obligation to consult?

In determining whether the Company consulted with an employee, we must first establish whether there is an obligation to consult. These obligations only arise when a modern award or enterprise agreement contains this requirement.

A modern award applies to an employee when it covers the employee is in operation. There is no provision in the Fair Work Act 2009 (Cth) which provides or has the effect that the modern award does not apply. A modern award does NOT apply to an employee at a time when the employee is a high income employee. As a result, modern award consultation obligations do not apply to high income employees. However, this does not affect eligibility for an unfair dismissal remedy.

An enterprise agreement applies to an employee when it: covers the employee is in operation. There is no provision in the Fair Work Act 2009 (Cth) which provides or has the effect that the modern award does not apply.

Redundant Employees, is there justice in the FWC

If your not award covered, no there is no obligation to consult. Unfortunately, if there is no modern award or enterprise agreement that applies, there is no legislative requirement to consult. Before a decision is made to make an employee redundant.

Employer does not comply

If an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy, the redundancy may not be deemed genuine. There is no absolute obligation on an employer to consult about the redundancy. However it requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.[7]

redundant
I’ve been made redundant. I don’t know why, I was the accountant and they said I’m not award covered. Shockingly they don’t have to go through a process or consult with me. The company still wants me to stay and show other employees my job, if I don’t I forfeit my redundancy pay. Its not fair, its embarrassing I’m still here. No body will talk to me, look me in the eye. where’s my dignity? 8 years i was here.

Potential redundant employees failure to consult makes it non genuine

If an employer was obliged to consult and fails to do so, the Commission may find this is not a genuine redundancy. However, the Fair Work Commission will need to assess the s.389 factors as a whole. Any one failure under the three parts will not automatically render the redundancy not genuine. This is because in circumstances where ‘consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change’. The failure to consult may not be so strongly considered by the Commission in determining whether it was an unfair dismissal.

Consideration of Redeployment

Whether redeployment of potential redundant employees is considered reasonable will depend on the circumstances that exist at the time of the dismissal.[10] In determining whether redeployment was reasonable a number of matters may be relevant. Including whether there exists a job or a position or other work to which the employee can be redeployed.

The nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience. Also the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered.[12] An employer must consider whether it is reasonable to redeploy an employee to an associated entity. The degree of managerial integration between the different entities is likely to be a relevant consideration.

Balance of probabilities

The Fair Work Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise. (or that of an associated entity) To which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.

Evidence in relation to whether there was a job or a position or other work would usually include canvassing the steps taken by the employer to identify other work, which could be performed by the dismissed employee.

redundant
Human resources smile when making employees redundant. Its not them that’s’ lost their job. I suppose they are happy its not them. I still don’t why I’m redundant and not others.

Alternative role

The alternative job must be suitable to the potential redundant employees in the sense that the employee should have the skills and competence required to perform. it must be to the required standard either immediately or within a reasonable period of retraining.[17] When assessing suitability, the FWC will also look at additional factors such as the location of the job and the level of remuneration. If an employer has other positions available, even at a lower level, that the redundant employee has the skills to perform, the employer should not presume that the employee will refuse the position.

Consideration of the role

An employee may well be prepared to consider a role. Although it has less responsibility and have no objection to the location of the role being different to the current one and accept less remuneration. A finding, based on the evidence of the employee, may be open to the Commission. That it would have been reasonable in all the circumstances for an employee to have been redeployed into a vacancy with lower income and less responsibility.

Advertising your role

Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy. In turn require the employee to compete with other employees. It might subsequently be found that the resulting dismissal is not a case of genuine redundancy.

Making the employee apply for their own job

Subjecting an employee to a competitive recruitment process for an advertised vacancy in an associated entity can be unfair. It may lead to the conclusion that the employee was not genuinely made redundant. However, the Fair Work Commission will not tell the employer how to conduct their business. The FWC will only be required to acknowledge that the decision to not offer an employee a redeployment was an appropriate decision for the business’ operational reasons.

made redundant
Redundant, out the door after 12 years, what do tell my wife and kids? how do I get another job at my age? I’m worried about my mortgage. Take a break, time out, brief holiday, hit the reset button, positive things happy to positive people, its the law of the universe.

Employers responsibility to look for alternative role

As the Full Bench observed in TAFE NSW v Pykett, to show that it would have been reasonable for an employer to redeploy an employee. It is not necessary to identify a particular job or position in which the employee could have been redeployed. However, the Commission must be satisfied on the balance of probabilities. Based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the employee.

Nevertheless, if an employer responsibly. It must carefully conducts a recruitment process for alternative roles and appoints another employee accordingly based on skill and experience. This then is considered appropriate. The combination of these cases illustrate the real difficult in winning a redundancy case of unfair dismissal in the FWC.

Conclusion to: Redundant Employees is there justice in the FWC

Thank you for reading the article “Redundant Employees, no justice in the FWC’. I hope it was informative for you, there is no easy answer though this maze. Get advice. We are A Whole New Approach P/L. The nations leaders in workplace commentary, advice, representation and research. We confront the hard issues. AWNA are not here to be controversial and show offs for publicly, we leave that to others. We are proud of our staff and the outcomes we get for our clients.

Any Fair work Australia, Fair work Commission or equal opportunity matters give us a call its free. All unfair dismissal matters, resignations, whatever, we are here for you. We work on a national basis, including Victoria, NSW, Qld

Another article on unfair redundancy (didn’t consult) that will be of interest to you, click here

An article on dismissal and human dignity, redundancy is in theory you have done nothing wrong.

Dignity is important when your terminated in these circumstances. click here

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Unfair Dismissal How Do I Appeal A Decision?

Unfair Dismissal How Do I Appeal A Decision?

Unfair Dismissal How Do I Appeal A Decision?

You cannot appeal the umpires decision, simply because you do not like the unfair dismissal result. Seriously the odd’s are not in your favor. You must have the grounds, its enshrined in law, it’s not what you think. Unfair Dismissal How Do I Appeal A Decision? It’s not easy. Applicants think now that I’ve lost I know what to do next time. There is no next time, you can only appeal on certain grounds. Read below it will clarify that you can and can’t do.

How does it work

An appeal is an application for a Full Bench of the Fair Work Commission to review a unfair dismissal decision of a single member of the Fair Work Commission and determine if the decision was correct. A person must seek the permission of the Fair Work Commission to appeal a decision. They are referred to as the “Appellant”. Thus, if you have undergone an arbitration or hearing and received a decision that you would like reviewed, there is an option to seek permission to appeal or review the decision.

Appeals are not readily granted and there are strict grounds the appellant must satisfy in order for an appeal to be granted. There are many barriers to an appeal even in the best case and there is no automatic right to appeal.

Who can appeal a decision?

A person who is aggrieved by a unfair dismissal decision made by the Commission (other than a decision of a Full Bench or Expert Panel) may appeal the decision. This is with the permission of the Commission.[1] A person who is aggrieved is generally a person who is affected by a decision or order of the Commission and who does not agree with the decision or order. The term can extend beyond people whose legal interests are affected by the decision in question to people with an interest in the decision. Beyond that of an ordinary member of the public, such as, in some circumstances, a union or an employer association.[2]

Unfair Dismissal How Do I Appeal A Decision?
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How long do I have to appeal a decision?

An appeal must be lodged with the Fair work Commission within 14 days after the date the decision being appealed was issued.[3] If an appeal is lodged late, an application can be made for an extension to the time limit.[4]

What are the requirements for an appeal?

In each appeal, a Full Bench of the Fair work Commission needs to determine two issues:

  • whether permission to appeal should be granted, and
  • whether there has been an error in the original unfair dismissal decision.

In regards to whether permission to appeal should be granted, the FW Act generally provides that the Fair work Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.[5] However in relation to an unfair dismissal matter the opposite is true. Permission to appeal an unfair dismissal decision must not be granted unless the Fair work Commission is satisfied that it is in the public interest to do so.[6] If the error that is alleged is an error of fact, then the person making the appeal must persuade the Full Bench that it is a significant error of fact.[7]

Task of assessing whether the public interest

The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[8] Some considerations that the Fair work Commission may take into account in assessing whether there is a public interest element include:

  • where a matter raises issues of importance and general application
  • There is a diversity of decisions so that guidance from a Full Bench of the Fair work Commission is required
  • where the original decision manifests an injustice or the result is counter intuitive, or
  • that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[9]
Unfair Dismissal How Do I Appeal A Decision?
I just lost my unfair dismissal case. I want to appeal, get advice today, you must have grounds, you have to do better than think the member at the FWC was biased, didn’t listen to me, I know what to do next time. If your serious about your claim get experienced representation.

The public interest test

The public interest test is not satisfied simply by the identification of error or a preference for a different result.[10]

In regards to determining whether there was an error of law, an error of law of law may be a jurisdictional error, which means an error concerning the tribunal’s power to do something. Or it may be a non-jurisdictional error concerning any question of law which arises for decision in a matter. In cases involving an error of law, the Commission is concerned with the correctness of the conclusion reached in the original decision, not whether that conclusion was reasonably open.[11]

In unfair dismissal appeals, if the error that is alleged is an error of fact, then the appellant must demonstrate that it is a significant error of fact.[12] An error of fact can exist where the Commission makes a decision that is ‘contrary to the overwhelming weight of the evidence’.[13] In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts.[14]

Full Bench cannot change or interfere with the original decision

If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original unfair dismissal decision.[15] It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision maker.[16] The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.[17]

There must be a legitimate reason for the appeal

Pursuant to the High Court’s decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[18] there needs to be a legitimate reason for the appeal as the Full Bench may only exercise its power if it identifies some error on the part of the primary decision-maker. Significantly, it is not enough that the Full Bench of the Fair Work Commission may have merely reached a different conclusion to that reached by the primary decision maker.

In House v The King,[19] the High Court of Australia listed the following as legitimate grounds of appeal:[20]

  • that the primary decision maker acted upon a wrong principle;
  • the primary decision maker had been guided by irrelevant factors;
  • that the primary decision maker had mistaken the facts; or
  • that the primary decision maker had failed to take some material consideration into account.

The Full Bench of the Fair Work Commission may also intervene in circumstances where the decision was unreasonable or plainly unjust.

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If my appeal is granted, what can the Full Bench do?

If permission to appeal is granted, the Full Bench of the Fair Work Commission may do any of the following in relation to the appeal:

  • confirm, quash (suppress) or vary the decision
  • make a further decision in relation to the matter that is being appealed
  • refer the matter being appealed to a Commission Member for further action.

Unfair Dismissal How Do I Appeal A Decision?

I hope the article on Unfair Dismissal, How Do I Appeal A Decision? has been helpful for you. We are a Whole New Approach, leaders in workplace and Fair work Australia matters. Any unfair dismissal, that you want to appeal give us a call, we ‘mind looking at your situation and giving free advice 1800 333 666. Be aware there are strict timelines to lodge an unfair dismissal claim and the appeal process. Our pages on unfair dismissals may be helpful. What’s your case worth, click here

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Citations

[1] Fair Work Act 2009 (Cth) s.604(1).

[2] See for example Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo [2015] FWCFB 7090 (Watson VP, Kovacic DP, Roe C, 27 October 2015).

[3] Fair Work Commission Rules r 56(2)(a)‒(b).

[4] Fair Work Commission Rules r 56(2)(c).

[5] FW Act 2009 (Cth) s.604(2).

[6] Fair Work Act 2009 (Cth) s.400(1).

[7] Fair Work Act 2009 (Cth) s.400(2).

[8] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 (19 April 2011) at para. 44, [(2011) 192 FCR 78].

[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at para. 27, [(2010) 197 IR 266].

[10] See for example Qantas Airways Limited v Carter [2012] FWAFB 5776 (Harrison SDP, Richards SDP, Blair C, 17 July 2012) at para. 57, [(2012) 223 IR 177]; Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 (Catanzariti VP, Watson VP, Gostencnik DP, 22 May 2015); Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 18.

[11] SPC Ardmona Operations Ltd v Esam PR957497 (AIRCFB, Ross VP, Hamilton DP, Hingley C, 20 April 2005) at para. 40, [(2005) 141 IR 338].

[12] Fair Work Act 2009 (Cth) s.400(2).

[13] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at pp. 155‒156.

[14] SPC Ardmona Operations Ltd v Esam PR957497 (AIRCFB, Ross VP, Hamilton DP, Hingley C, 20 April 2005) at para. 40, [(2005) 141 IR 338].

[15] House v The King [1936] HCA 40 (17 August 1936), [(1936) 55 CLR 499].

[16] Ibid.

[17] Ibid.

[18] (2000) 203 CLR 194.

[19] (1936) 55 CLR 499.

[20] Ibid at 505.

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