Unfair Dismissal

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Adverse action case rules husband can’t speak for their wife

Adverse-action-case-rules-husband- can’t-speak-for-their-wife.-partners-sacked-on-the same-day
Partners going home after being sacked (dismissed) on the same day.

Adverse action case rules husband can’t speak for their wife

An adverse action case heard by a federal court in June has resulted in a unique and telling judgement. That husbands can’t speak for their wives. The case involved a HR manager who had dismissed a worker based on a phone call he’d had with her husband. This case of adverse action rules should be compulsory reading.

But the case goes far deeper than just that. The HR manager was also found to have taken opportunistic action that denied the employee the right to seek legal proceedings for racist workplace bullying. At A Whole New Approach P/L we have been seeing this type of behaviour from employers for years. Particularly in the hotel, motel, caravan park resort industries. Also in farming and some remote locations. Any where couples work together at the same employer. Where the employer tells the male “your dismissed and that applies (tell) your wife as well”.

Employer sexist behaviour

Its sexist as well. We don’t hear of the circumstances of the employer telling the wife your dismissed and by the way tell your husband as well. Generally the perception is the employer concern is the male will do something about it. That the male is in charge, its its assumed he is the bearer of bad news.

Let’s take a look at this unique adverse action case – United Workers’ Union v Bervar Pty Ltd [2022] – which will help you understand your rights as an employee and what can constitute an adverse action by an employer. Further how this applies in a dismissal case, how the adverse action case rules applies in different circumstances.

The events leading up to the adverse action: Part-time worker clashes with management  

In August 2015, Indian immigrant Talwinder Kaur commenced work at Bervar, a ready-made pizza production business based in Campbellfield, Victoria. As a part-time employee, her time at the company was without incident until March 2020, when the COVID-19 pandemic hit.

Due to the pandemic, there was a need for the company to increase production. This led to Ms Kaur’s manager asking her to perform overtime, in addition to changing her work responsibilities. During meetings discussing the changes, Ms Kaur clashed with her manager and another colleague. Following the second meeting, which discussed the fact that she hadn’t performed certain duties, Ms Kaur left the workplace mid-shift.

Ms Kaur’s walkout promoted Bervar’s HR manager, Cameron Blewett, to call Ms Kaur. This is where this adverse action case took a unique turn.

Told-by-her-partner-that-the-boss-had-sacked-her
Told by her partner that the boss had sacked her. She had done nothing wrong. Refusing to go home until she speaks to the employer why she is dismissed

HR manager makes a suspect decision following phone call

At 1.15pm on 6 May 2020, Ms Kaur received a call from Mr Blewett. She immediately passed the phone to her husband, Mr Singh, who proceeded to have a conversation with Mr Blewett. During the conversation, Mr Blewett claims that Mr Singh told him, among other things, that Ms Kaur was never returning to work. Mr Singh, however, denied ever having said that.

He however told Mr Blewett that his wife had been subject to bullying in the workplace. That they would be taking the matter to “Fair Work”. The HR manager denied any knowledge of the alleged bullying.

At 3.10PM, Ms Kaur received an email from Mr Blewett advising that her resignation had been accepted. At 6.25PM, Ms Kaur replied to this email, stating that she had in fact not resigned. Five days later, she sent another email to Mr Blewett, asking him to confirm whether she was still employed by Bervar.

A day later, she received a reply from Mr Blewett stating that her resignation had been accepted and that she was no longer employed by Bervar. Ms Kaur subsequently made an adverse action claim against Bervar with the Fair Work Commission, via the United Workers Union.

What is an adverse action?

Before we get into the Court’s ruling on this case, it’s important to first define what an adverse action is. There are several types of adverse action. For instance, an adverse action taken by an employer against an employee, or vice versa. Also, one taken by a prospective employer against a prospective employee. An adverse action can also be taken by principal against an independent contractor, or vice versa.

The type of adverse action relevant to this case is one taken by an employer, Bervar, against an employee, Ms Kaur. In this context, it is defined as an unlawful action taken by an employer that is harmful to an employee and is motivated by a prohibited reason.

The prohibited reasons are set out in the General Protections provisions of the Fair Work Act 2009. This can include, for instance, a harmful action taken due to an employee having been on a long period of sick leave or because they exercised a workplace right. It can also include any harmful action taken for discriminatory reasons, like an employee’s sex, religion, race, etc.   

Fair work Commission

Fair Work states that an employer has taken adverse action against an employee when it threatens to, organizes or takes action by:

  • dismissing the employee
  • injuring the employee in his or her employment
  • altering the position of the employee to the employee’s prejudice, or
  • discriminating between the employee and other employees of the employer.

It should be noted that the key to a successful adverse action claim is for the employee to prove the action was taken for a prohibited reason. That is, because of a protected attribute of the employee (i.e. race, religion, etc) or if they have exercised a workplace right.

Dismissed-for-the-only-reason-she-was-married-to-somebody-who-worked-at-the-company.
Dismissed for the only reason she was married to somebody who worked at the company.

Ms Kaur’s adverse action case goes to court

The key question put before the Federal Circuit and Family Court of Australia was whether Ms Kaur’s husband, Mr Singh, was authorized to terminate her employment contract with Bervar. Judge Blake ruled that he didn’t in fact have the authority to do so. Therefore, he found that rather than having resigned, Ms Kaur had been dismissed.

“The contract of employment was between Bervar and Ms Kaur,” said Judge Blake. “Under clause 10 of the contract of employment, the only parties able to terminate the contract are Bervar and Ms Kaur. That is unsurprising. It is a generally accepted principle of contract law that only the parties to the contract are able to terminate the contract.”

The days of husbands making decisions for their wives are “long gone”

Judge Blake found that Mr Blewett had failed to undertake many of the basic actions and enquiries expected of an experienced HR manager like him. He ruled that Mr Blewett had “assumed” that Mr Singh had the authority to tender Ms Kaur’s resignation and that she agreed with what he had said.

“…it was not reasonable in these circumstances for Mr Blewett to believe that whatever Mr Singh said, Ms Kaur agreed with,” said Judge Blake. “It is difficult to think in the modern age of any circumstances in which a wife can be assumed to agree with what her husband says. The days of husband’s making decisions for their wives, or determining contractual relations on behalf of their wives, are long gone.”

Judge Blake

Judge Blake noted that Mr Blewett understood that Ms Kaur “was upset and had been crying”. When he spoke to Mr Singh on the phone. Therefore, Mr Blewett should have realized that “whatever Mr Singh may have said may have been said in the heat of the moment.”

“It seemingly never occurred to Mr Blewett to speak to Ms Kaur directly, notwithstanding, that Mr Blewett agreed that Mr Singh had never said Ms Kaur ‘resigned’ from employment,” said Judge Blake.

Adverse-action-case-rules-husband-can’t-speak-for-their-wife.-Worried-how-he-is-going-t- tell-his-wife-she-is-also-dismissed
Worried how he is going to tell his wife she is also dismissed. There will be no income to pay the mortgage and school fees. Worried how his wife will react.

The critical factor that deemed the dismissal an adverse action

In his phone conversation with Mr Blewett, Mr Singh had said that he and his wife would take up the matter of her workplace bullying with “Fair Work”. Judge Blake found that Ms Kaur “clearly possessed” the right to start proceeds under workplace laws concerning the matter.

Because exercising a workplace right is one of the prohibited reasons outlined in the General Protections provisions. This meant that Ms Kaur’s dismissal met the criteria for an adverse action. Judge Blake then determined if there was evidence to sustain that charge.

He found that Mr Blewett had “learned at least two things” during his phone conversation with Mr Singh. Namely, that Ms Kaur had suffered “racist bullying and harassment every day,” and that she was upset. Despite this, he found that Mr Blewett “took no step to understand why Ms Kaur was upset.”

Judge Blake said that while Mr Blewett was “an experienced and qualified human resources professional,” he “did not do any of the basic things, or make any of the basic inquiries, an experienced human resource professional might be expected to.”

Excise her workplace rights

Based on this evidence, Judge Blake determined that Mr Blewett “was concerned that Ms Kaur would exercise her workplace right to initiate process or proceedings in ‘Fair Work.’” “His response, rather, was to avail himself of the first opportunity to remove her from the business,” said Judge Blake. “Presented with an opportunity to avoid a drawn-out process, he grasped it.”

Judge Blake ruled that both Bervar and Mr Blewett had breached s340 of the Fair Work Act. He invited both parties to submit an agreed minute of orders within 21 days as to how the matter should proceed.

reaching-out-for-help-in-adverse-action-and unfair-dismissal-case
We are here for you. Get advise regarding a dismissal or adverse action claim.

Conclusion to Adverse action case rules husband can’t speak for their wife

Its all good when couples get jobs together, until it goes wrong. Why should one partner pay the price of the loss of a job by being dismissed, because of the alleged actions of the other? Then to add insult to injury not even told by the employer they have been sacked / dismissed. Be carefully the circumstances as a couple your signing up with the employer for.

Have you been dismissed for exercising a workplace right?

If you have been dismissed for exercising a workplace right. Or for another reason outlined in the General Protections provisions, you may be eligible to make an adverse action claim. However, if you are not familiar with workplace relations laws, the process of making a claim, it’s often very difficult to know if you are eligible.

Our team of experts at A Whole New Approach can help make the process easy. For over two decades, we’ve helped thousands of employees like you seek compensation from their employers. We are proud of our staff and the outcomes they get for the clients. Anything relating to workers rights, employment rights, being sacked, abandonment of employment, casual employee rights, forced to resign, call us immediately

Call us today on 1800 333 666 for a free and confidential help seek justice.

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Dismissed for out of hours serious misconduct? We explain.

Dismissed,-employee-thought-what- they-did-in-their-own-time-was-their- business,-not-the-employers
Dismissed, employee thought what they did in their own time was their business, not the employers

Dismissed for out of hours serious misconduct? We explain.

Receiving a dismissal for out of hours serious misconduct is a situation many Australian workers have found themselves in. Often, the line between working hours and after hours is blurred. It isn’t clear if serious misconduct that takes place in the latter can result in a dismissal. In this article, Dismissed for out of hours serious misconduct? we try and make the situation for clear for you, to work out whether your unfair dismissed or not. The moral is to avoid these circumstances to begin with.

So, when can out of hours serious misconduct result in a fair dismissal, suspension or other punitive measures? Australia’s courts and tribunals continue to grapple with this question, with differing results. The specific laws that apply to a given case, and the nature of the serious misconduct, are the key variables that decide if an employee must face the consequences for out of hours misconduct.

Employers make the decision to dismiss early

When a employer wants to discipline an employee over poor performance, being late whatever, its usually by degrees. That what warnings are for. We notice with serious misconduct employers seem in most cases to have come to a predetermined view. Hence some act like the FBI. In fact in some large companies ex police are employed as investigation or loss prevention officers. Old habits die hard as they say and they think everybody is guilty and has to go.

This approach is inherently unfair. The Fair work Act basically says you are entitled to a process that’s fair. This can be complicated, what’s fair to one is not to another. Get advice at the earliest possible stage

Today we’ll look at two cases that involved out of hours serious misconduct. Each ending with markedly different punitive consequences for the employees in question. By knowing the details of these cases, you will better understand the factors that determine when out of hours conduct warrants punitive measures.

Here are the rules around out of hours serious misconduct

Saying-sorry-after-the-incident- (swearing,-abuse,-threatening- behaviour)-may-not-save-your-job
Dismissed for out of hours serious misconduct? Saying sorry after the incident (swearing, abuse, threatening behaviour) may not save your job. Equally not apologizing for some behaviour or conduct employer’s argue justifies disciplinary action and a dismissal.

Public servant placed on suspension for out of hours serious misconduct

In May 2022, the Queensland Industrial Relations Commission (QIRC) ruled that a Queensland government department was within its rights to place an employee on suspension without pay for out of hours serious misconduct. The employee had been accused of five counts of sexual assault which took place while he was moonlighting as a ride share driver.

The employee had made an appeal with the QIRC regarding his employer’s decision, arguing it was unfair on several grounds. He contested that the department had denied him procedural fairness. That his suspension wasn’t “legally reasonable.” Also, that his alleged sexual assault offences didn’t relate to his work and that his employer had denied him a presumption of innocence.

How does the law regard public sector employees and out of hours serious misconduct?

Industrial Commissioner Catherine Hartigan found that the employer had not decided to suspend the employee based on a belief of his guilt. Rather, it was a decision made in line with the law relating to the out of hours misconduct of public sector employees.

“… s187(1)(b) of the [Public Service Act] specifically provides grounds for discipline against a public service employee. This ts where they have engaged in misconduct in a private capacity, namely inappropriate or improper conduct in a private capacity which reflects seriously and adversely on the public service,” said Commissioner Hartigan.

“Having regard to the information before the decision maker, I consider that it was available on the evidence before [them] to form a reasonable belief that the [public servant] is liable to discipline under a disciplinary law.”

“Ultimately, it is not necessary to establish that there is a causal nexus between the workplace and the alleged offending conduct to establish a ground for discipline in accordance with the PS Act.”

Dismissed-for-out-of-hours-serious-misconduct?-We-explain.
Been suspended and matched out the door. Is this already a dismissal? Be aware some employers leave employees suspended for inordinate periods of time. Especially if its unpaid. The suspension for alleged serious misconduct must be applicable to the particular personal circumstances

Can an employee be dismissed for out of hours serious misconduct?

In the aforementioned case, the employee’s unpaid suspension was considered fair due to the provisions contained in the Public Service Act. But when it comes to private sector employees, cases are viewed through a different lens.

The Fair Work Commission states that “it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees”. And for out of hours serious misconduct to warrant dismissal, the misconduct “must have a relevant connection to the employment relationship.”

The seminal legal precedence used to determine many unfair dismissal cases is Rose v Telstra Corporation Limited (1998), which involved a Telstra employee who had an out of hours physical altercation with a colleague. This case established that valid termination of an employee’s employment could take place when:

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

Reputational damage

With respect to out of hours serious misconduct causing reputational damage, the burden of proof lies on the employer. They can’t simply say that reputational damage has occurred or that the employee’s ability to perform their duties has been compromised. The employer must provide material evidence.

Let’s take a look at the events of Rose v Telstra. How the Australian Industrial Relations Commission (AIRC) came to a ruling on whether the employee was subject to an unfair dismissal.

Telstra employee gets into out of hours melee with work colleague

In November 1997, Mr B. Rose, a Telstra Communications Officer based in Tamworth, temporarily located to Armidale to assist the local Telstra branch. On his third night in Armidale, Mr Rose and a Telstra colleague, Carl Mitchell, visited a local nightclub after several hours of drinking. Critical to this unfair dismissal case is that the duo were not in their Telstra uniforms, nor were they on call.

While at the nightclub, Mr Rose lost track of Mr Mitchell, and went looking for him.

“I found him at the bar having an argument with a person we both knew,” Mr Rose told the AIRC. “I tried to appease Carl but he told me to ‘f**k off.’”

After the exchange, Mr Rose walked away and was quickly followed by Mr Mitchell. Mr Rose then told his colleague that he didn’t need to “fight these fellows”. That he would have words with him later. Mr Mitchell subsequently left the nightclub at 2:30AM and returned to his hotel room. Which he was sharing with Mr Rose, who made his way there half an hour later.

Dismissed for out of hours serious misconduct? We explain.-verbal-abuse-can-lead-to-a-dismissal
Verbal abuse when the employee thinks they are trying to make a point. Or thinks they are helping you can be considered serious misconduct and warrant a dismissal. Verbal abuse, email and social media abuse dismissals has increased dramatically over the last few years.

“I can do you any time I like, mate:” All hell breaks loose in the hotel room

Mr Rose met a woman called Lee on the way to the hotel room, and when they arrived, he asked Lee to wait outside so he could have “a word with his mate inside”. Once inside, Mr Rose rearranged the furniture to create space in the middle of the room, before telling Mr Mitchell, “Well, that’s your boxing ring if that’s what you want, mate.”

“I went to the room,” recalled Mr Rose, “I pushed a bed aside and said to Carl. ‘I thought you were my mate. I thought you were a friend. If you want to fight you can stand up and fight like a man.’ I said that 3 or 4 times”.

At this point, Mr Mitchell approached Mr Rose and placed his arm around him and said, “I can do you any time I like, mate”. To which Mr Rose replied, “Go ahead and do what you like.” Then, all hell broke loose. Mr Mitchell went over to the window and thrust his fists through the glass, which promoted Mr Rose to act accordingly.

“I grabbed a bed and tried to push it between the two of us,” recalled Mr Rose. “He got around it and I was able to push him to the ground. Lee came into the room and I told her to get out. Carl struck me in the chest with a piece of glass.”Mr Rose then bolted out the door, grabbed Lee and ran downstairs. He subsequently called an ambulance, and once at the hospital, received 12 stiches to his injury.

Employment with Telstra was terminated

Mr Mitchell was later convicted of malicious wounding and sentenced to four months imprisonment, and subsequently resigned from Telstra. After an internal investigation, Mr Rose’s employment with Telstra was terminated. He subsequently made an application for relief in respect of termination of employment with the AIRC, alleging an unfair dismissal.

The AIRC rules on the unfair dismissal case

At the AIRC hearing, Telstra contended that the incident involving Messrs Rose and Mitchell amounted to improper conduct. Therefore on that basis, the former was terminated. Telstra’s chief argument was that because the serious misconduct took place in a hotel room paid for by Mr Rose’s travel allowance, the incident was therefore within the scope of his employment.

The AIRC, however, disagreed. It found that there was no sufficient connection between the incident and Mr Rose’s employment duties. The AIRC highlighted that he hadn’t been waring his Telstra uniform at the time and hadn’t been on call. It also found that because the incident took place in a hotel room (i.e. not a public place). It was very unlikely that it caused any reputational damage to Telstra.

For these reasons, the AIRC determined that Mr Rose was harsh, unjust and unreasonable, and therefore he had been unfairly dismissed.

Arguments-and-threats-can-lead-to- difficult,-threatening-or-physical- threats.-You-cannot-sort-yourselves-out-like-the-old-days.
Arguments and threats can lead to difficult, threatening or physical threats. You cannot sort yourselves out like the old days.

Conclusion to Dismissed for out of hours serious misconduct? We explain.

When the line between an employee’s work hours and their private life are blurred. It’s often difficult to determine if their after hours conduct comes under the purview of their employer. If you have been dismissed for out of hours misconduct, we can help you determine whether your employer was within their rights to terminate your employment. And if they weren’t, we can help you make an unfair dismissal claim to seek reinstatement or compensation. All matters relating to Fair work Australia and workplace investigations Call us now. Casual workers rights, employment rights , being forced to resign, toxic workplaces we will help you.

Feel free to call our expert team on 1800 333 666 for a no obligation, confidential conversation about how we can help you seek justice for your unfair dismissal.

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Be sacked forces migrant to work unreasonable hours

Be-sacked-forces-migrant-to-work- unreasonable-hours
Nobody should be taken advantage of. We are all Australians, we are in this land together

Be sacked forces migrant to work unreasonable hours

Working reasonable hours is a right that most Australians know is protected by our employment laws. But if you’re a recent migrant to this country, you may not know what kinds of hours are reasonable, and some unscrupulous employers may take advantage. Being threatened with dismissal if you don’t work the bigger hours we get these calls daily. Be sacked forces migrant to work unreasonable hours is more relevant than ever before.

At A Whole New Approach, we see this all the time. There ever there are marginalized groups, there are employers that (thankfully a minority) that take advantage of employees. Migrants, people with mental illness or disabilities, low IQ, people out of prisons, young people, women trying to return to work after a long period away. Why do employers do this? Its called profit. This culture contributes to increasingly toxic workplaces, increased work cover claims, violence in the workplace and theft. In the longer term it benefits neither the employer or the employee

Leading wholesaler exploits African migrant in reasonable hours case

That’s what happened in a reasonable hours case heard by the Federal Court in May. The case concerned Sydney’s largest meat wholesaler, which forced a recent migrant to work a 50-hour week with 4am starts. In this article, we’ll look at the details of the case and how the Court came to a ruling. But to understand this case, we must first look at what actually constitutes reasonable hours as defined by Fair Work.

What are the maximum weekly hours of work?

The National Employment Standards (NES) outlined within the Fair Work Act 2009 are 11 minimum employment entitlements that must be provided to all employees. One of these entitlements outlines the maximum reasonable hours an employee can work.

The entitlement states that an employer can’t request or require a full-time employee to work more than 38 hours per week. For those employee’s who aren’t full-time, they must only work 38 hours per week or their ordinary hours of work in a week. Whichever is lesser. The weekly hours an employee works must be taken to include any hours of leave or absence (paid or unpaid) authorized by their employer, a term of their employment or by law.

If an employee is asked to work additional hours, they have the right to refuse if it’s considered unreasonable. Fair Work considers a number of factors to determine whether additional hours are reasonable hours or not. This includes whether it poses a risk to the employee’s health and safety. And the employee’s personal circumstances, to name just two. You can view the full list of factors on the Fair Work site.

Now, with this in mind, let’s look at the reasonable hours case of the meat worker.

Be-sacked-forces-migrant-to-work-unreasonable-hours
Migrants should be welcomed, not be threatened with dismissal or be sacked

“The job starts at 2am:” Ghanian migrant commences work at meat wholesaler

In March 2016, 24-year-old Ghanian Samuel Boateng migrated to Sydney with his mother and three siblings. Eager to find employment, the marketing science graduate sought advice from a member of the Ghanian community. This man, Nana Yaw, told Mr Boateng that there were jobs available at  Dick Stone PTY LTD, where he was employed. A week later, Mr Yaw informed Mr Boateng that he could commence employment at Dick Stone the following Monday, saying that the “[t]he job starts at 2.00 am.”

On 21 March 2016, Mr Boateng turned up for his first day of work at Dick Stone in the Western Sydney suburb of Regents Park. Arriving at 1:45am with Mr Yaw, Mr Boateng was introduced to Peter Bertram, Mr Yaw’s supervisor. Critical to this reasonable hours case was that during this meeting, Mr Bertram didn’t mention any details about Mr Boateng’s employment. He failed to discuss terms, conditions, his expected hours nor pay. Mr Boateng was subsequently put to work that morning.

The employee is given a very suspect offer of employment

Returning to work the next day, Mr Boateng was handed an “employment form”. Which was an employment application for the position of “knife hand/laborer.” He was also given an “Employment Commencement Pack,” which included a letter of offer for the aforementioned position. Both these documents were dated 22 March 2016.

The letter of offer stated that Mr Boateng had commenced work the previous day. It also outlined the following “general conditions” regarding his hours of work:

  • Hours: The ordinary work hours for a full-time week are 50 hours per week. Your ordinary work hours will initially be within the range 2 am to 11:30 am Monday to Friday, 2 am to 7 am Saturday. This may at some stage in the future need to be varied from this range due to business requirements.
  • Additional Hours: There is the expectation that when requested by the Company employees shall work a reasonable amount of additional hours.

The letter of offer was, however, lacking several notable details that were key to this reasonable hours case. It didn’t outline how much Mr Boateng would be paid. It also didn’t outline any overtime entitlements, nor refer to the relevant Meat Industry Award 2010. Mr Boateng had at this stage only been in Australia for three weeks. He was therefore unaware of the obligations of employers and signed the offer of employment that night.

The long, unreasonable hours take a “damaging” toll on the employee

It wasn’t until Mr Boateng received his first pay slip that he found out how much he was being paid $20.70 per hour. He wasn’t given the opportunity to agree to this rate. Nor did he know if it included other entitlements or loading.

Mr Boateng would later testify to the Federal Court that he was never given a choice but to work 50 hours a week. He said that if he was given the opportunity to work 38 hours instead, he would have taken it. The long, unreasonable hours and egregiously early start time eventually took a toll on Mr Boateng. This was especially when his wife gave birth to their first child.

“I found 50 hours per week to be very difficult, particularly as I needed to get up at about midnight every day”. Stated Mr Boateng. “I found the long hours damaging on my relationship with my family and my wife.” “The long work hours, particularly only having one day a week off from work, was very difficult at the time I was married and with a newborn child.”

Shouldn't-have-to-think-about- potential-mistreatment-when-applying- or-looking-for-a-job
Shouldn’t have to think about potential mistreatment when applying or looking for a job

The Australasian Meat Industry Employees Union intervenes

In November 2017, the Australasian Meat Industry Employees Union contacted Dick Stone about a number of employee concerns. This included the underpayment of several Award entitlements, as well as unreasonable working hours and overtime performed. A back and forth of correspondence ensued between the two parties, before things went quiet.

In November 2018, the Union once again raised the issues with Dick Stone, proposing that they be resolved through the dispute resolution process outlined in the Award. Then in December, the Union informed Dick Stone that it would represent Mr Boateng in this process, at his request. In February 2019, the Union filed an application with the Fair Work Commission to deal with the dispute. However, because Dick Stone refused to agree to arbitration, this proceeding came to an end.

Mr Boateng was subsequently made redundant with three other employees in September 2019.

The employee’s unreasonable hours claim is considered by the Federal Court

It wasn’t until May 2022 that Mr Boateng’s case reconvened in the Federal Court. The key issue that it had to decide on was whether it was reasonable for Dick Stone to require or request Mr Boateng to work beyond the maximum 38 hours per week stipulated in the NES. 

The Union submitted to the Court that Dick Stone’s requirement for Mr Boateng to work 50 hours per week wasn’t reasonable. Also, that he wasn’t paid his correct overtime or penalty entitlements. Dick Stone, meanwhile, argued that the 50 hours per week that Mr Boateng worked was in fact a term in his employment contract. It said that Mr Boateng had entered the contract on his own free will. The company also stated that Mr Boateng was paid a “blended rate” that included overtime. Hence he didn’t receive separate pay for the extra 12 hours per week.

Was the employee forced to work unreasonable hours? The Federal Court makes its decision.

Considering the evidence, Justice Anna Katzmann found that Mr Boateng’s employment contract was wanting in several regards. She found that it didn’t outline what Mr Boateng would be paid. Also, that it didn’t mention any entitlement to overtime or refer to the Award.

When it came to whether it was reasonable to require Mr Boateng to work extra hours, Justice Katzmann considered the reason provided by Dick Stone. The company argued that it had required extra hours in line with one of the reasons stated in the NES. Namely, “the needs of the workplace or enterprise”. Justice Katzmann found that while the 50-hour work week aligned with this reason, it didn’t necessarily mean the additional hours were reasonable for Mr Boateng.

Justice Katzmann found that:

  • Mr Boateng was exposed to “obvious risks” associated with lengthy shifts in a job “requiring the use of knives and the lifting of heavy weights.”
  • It was “unsurprising” that Mr Boateng didn’t attempt to negotiate his employment terms. As he had “recently arrived in Australia from a third-world country, needed employment, and was likely to be unfamiliar with Australian law.”
  • According to the industry Award, the usual pattern of work in the meat industry “is to work from 4 am, not 2 am.”

Considering all these factors, Justice Katzmann ruled that Mr Boateng had indeed worked unreasonable hours. “On balance, . . . I am persuaded that it was unreasonable of Dick Stone to require or request [the worker] to work 12 hours a week every week over and above the 38 stipulated by the award and the Act,” Justice Katzmann concluded.

Everybody-should-be- comfortable-and- happy-where-they-work,-not- threatened-with-being-sacked
Colleagues and coworkers taking photo together after the office party before the summer holidays. Multi ethnic group of diverse people, from young adults to mature people, smiling and expressing positive emotion.

Conclusion to Be sacked forces migrant to work unreasonable hours

Have you been forced to work unreasonable hours?

Employment rights, Casual employee rights, workers rights are important, this is not a political statement, its how we all want to be treated. Employees are often expected to work overtime, and sometimes without being compensated for it. Or pressured to work extraordinary long shifts or continuous days. If that sounds like your situation, A Whole New Approach can help you take action against your employer. All adverse action claims, underpayments, been sacked, forced to resign over conditions or toxic workplace

Call us on 1800 333 666 for a free, confidential discussion.

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A Short History of Australian Employment Law

A-short-History-of-Australian-Employment-Law.-Justice-at-the-Fair-work-applies-equally- to-all
Justice at the Fair work applies equally to all. Everybody is entitled to a fair go underpins workplace laws in Australia

A Short History of Australian Employment Law

Australia’s landscape of employment law has made, since the Great Strikes of the 1890s, great strides toward equilibrium in the workplace. A full embrace of the rights of employees in pastoral, industrial, and office workplaces has been a work in progress. This was throughout the 20th and 21st Centuries, to say the least. However, it is safe to say that, now, in the year 2022, Australian employees and workers have a variety of legal rights and options at their fingertips when seeking relief for workplace wrongdoing. A Short History of Australian Employment Law is well worth a read to understand where and how got to today.

This purpose of this Article is to demonstrate the evolution of Australian employment law. Then, to provide a summary of the state of Australia’s employment and workplace-related legal landscape as it stands now.

A Chronology of Australian Employment Law: Then To Now

The history of Australian employment law truly began in 1904 with the passage of the Conciliation and Arbitration Act 1904. Passed in the wake of the Great Strikes of the 1890s and the commencement of Australia’s nationhood in 1901, the Conciliation and Arbitration Act 1904 was the first legal mechanism instituted in the country to govern the resolution of disputes between workers, unions, and employers.

This statute created the Commonwealth Court of Conciliation and Arbitration in order to settle workplace disputes. The Court was empowered to resolve disputes and to issue decisions, or “Awards.” An “Award” is, in Australia’s employment law system, an instrument that sets and regulates aspects of the employer-employment legal relationship.

This Court issued, in subsequent years, a number of notable Awards that greatly influenced the evolution of Australian employment law. In 1906, for example, an Award regarding Federal maritime benefits introduced the concept of 10 days of annual leave into the Australian legal landscape.

In 1907, the Shearers’ Award (decision of the Commonwealth Court of Conciliation and Arbitration) held that a worker could only be absent from work if he was sick or unwell. (This may seem to be very limiting, but the allowance for sick leave at all was a significant development in Australian employment law.)

Minimum wage was introduced

Again, in 1908, the Commonwealth Court allowed set a basic minimum wage for the first time, holding that it should be sufficient to support a 5-member family. Legislation continued to follow the precedent of the Commonwealth Court to improve the legal landscape for workers in Australia.

In 1927, Australia reduced the standard work week to 40 hours from the prior 44-hour standard work week. Then, in 1935, the concept of paid sick leave and annual leave began to be slowly incorporated into the standard mode of Australian employment terms and conditions.

World War II introduced further advances to Australian employment law.

Governmental regulations established as a huge portion of the male workforce donned helmets and uniforms and departed their workplaces for service overseas required that the minimum wage for female works increase to at least 75% of men’s basic wage.

This new standard was adopted by the Commonwealth Court in 1949 and would remain the governing rule regarding women’s wages for 3 decades.

In 1956, the old Commonwealth Court was ruled unconstitutional by Australia’s High Court. In its place, a new Industrial Relations Court was established. The old Commonwealth Court then evolved into the Conciliation and Arbitration Commission. Its responsibility was confined to making or changing Awards.

Equal pay for equal work

From 1966 to 1968, the Commission ruled that Aboriginal pastoral workers were to be paid the same as white pastoral workers and, in 1972, that all workers were to receive equal pay for work of equal value.

Women’s separated minimum wage was excised from Australian employment law, establishing wage parity for the first time.

In 1979, the right to 12 months of unpaid maternity leave was introduced.

A-Short-History-of-Australian- Employment-Law
Our wages and conditions must be reflected equally for a modern society. We don’t to go backwards

In 1993, the Industrial Relations Reform Act 1993 was enacted.

This important statute allowed employment disputes to be settled through Enterprise, or collective, bargaining between employers and workplace unions, with the now-renamed Australian Industrial Relations Commission in place to settle disputes when bargaining parties fail to do so.

In 1996, the Workplace Relations Act 1996 was also enacted, and the state of Victoria moved into the national workplace relations system.

Through the 1990s and into the mid-2000s, Australia’s Federal industrial relations system grew to encompass a large number of employers and employees covered previously only by state industrial relations systems. In 2008, the Commission began a process of updating and modernizing Awards, replacing over 1,000 state and Federal awards with 122 so-called “Modern” Awards. This process was completed in 2009.

Modern Awards

The Modern Awards generally occupy two categories: (1) industry awards; and (2) occupational awards. Some Awards occupy both categories. Industry Awards cover employers operating in specific industries, as well as the employees who work within those industries. Occupational Awards are those covering employees working in certain occupations, regardless of whether their employers fall within that spectrum of Award coverage.

Whether or not an employer falls into a particular industry has been examined by Courts resolving disputes as a factual question, controlled by the “substantial character” of the enterprise at hand. This involves a macro-review of the employer’s business to determine what the “substantial” strand of the enterprise’s business actually is. More than 1 Modern Award may cover a single employer’s operation, however.

The breach of an Award’s terms by an employer can result in significant monetary penalties, assessed on a per-breach basis, compounded, potentially, by the number of individuals involved in the breach. Thus, throughout the 2000s, the Commission continued this transition and, ultimately, covered most workplaces throughout Australia with this new Modern Award regime.

Fair work Australia

In 2009, Fair Work Australia was founded to replace the many-times re-named Australian Industrial Relations Commission. That same year, the majority of Australian states—excepting Western Australia—transferred their industrial relations powers to the Federal government, retaining only authority over their own public service agencies.

A-Short-History-of-Australian- Employment-Law
Businesses must treat workers fairly. Unfair dismissal, adverse action and other laws are important

The Fair Work Act 2009 was also enacted that year. In 2013, Fair Work Australia was renamed the Fair Work Commission, and a Fair Work Ombudsman was appointed. The Fair Work Act was amended in 2018 to add the right to unpaid family and domestic violence leave to Australia’s National Employment Standards.

During the pendency of the COVID-19 pandemic, the Act was tweaked and amended on a number of occasions to provide for further unpaid parental and other forms of leave related to the Coronavirus and its effects. In particular, employees who endure traumatic loss as a result of the Coronavirus, such as the death of a child, were allowed additional unpaid leave entitlement.

Fair work Act

Over the past year (as of this writing), the Fair Work Act has been further amended in significant ways. In 2021, the Supporting Australia’s Jobs and Economic Recovery Act 2021 Amendment was enacted. This Amendment took effect in March, 2021, changing workplace entitlements for so-called Casual Employees.

This Amendment redefined the Casual Employee category. Requiring that every Casual Employee be provided with a copy of the Casual Employee Information Statement. The Amendment provided a statutory pathway for Casual Employees to enter full- or part-time employment under certain circumstances. See below regarding the Casual Employee classification and the required Information Statement.

Sex Discrimination and Fair Work (Respect at Work) Amendment Act

Also in 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 was enacted.

This Amendment to both the Fair Work Act and Australia’s Sex Discrimination Act 1984 defined sexual harassment and introduced requirements for employers to stop workplace harassment. It clarified that sexual harassment can be a valid reason for dismissal and extended compassionate leave to include miscarriage.

The State of Australian Employment Law in 2022

The Australian employment law regime in 2022 is reasonably robust, providing employees and workers with more protections and entitlements than at any other time in the past.

However, there is much room for improvement. In terms of collective or Enterprise bargaining, there is, additionally, indications that worker protections have been significantly eroded.

No-body-wants-to-be-treated-as-a- slave,-the-days-of-indentured-labor- should-be-gone
No body wants to be treated as a slave, the days of indentured labor should be gone. Adverse action rights are important.

What Is The Fair Work Act (Now)?

The Fair Work Act 2009 is the primary statute underpinning and defining the extent of Australian employment law. It provides the minimum standards and regulations with which employers across the country must comply. Regardless of an employer’s industry or the size of its business.

In general, the Fair Work Act:

  • Provides standards for the terms and conditions of employment;
  • Sets out the rights and responsibilities of employers and employees with regard to employment;
  • Provides rules for compliance with its provisions;
  • Provides for administration of its rules and regulations through the establishment of the Fair Work Commission. The Fair Work Ombudsman, as noted in the chronology above.

The Act provides, in particular, 10 National Employment Standards (NES):

  • Maximum weekly work hours;
  • The right to request flexible working arrangements;
  • Parental leave and related entitlements;
  • Compassionate leave and family and domestic violence leave entitlement;
  • Community service leave entitlement;
  • Annual leave entitlement;
  • Long service leave entitlement;
  • Public holiday entitlement;
  • Notice of termination and redundancy pay rules;
  • The right to receive the Fair Work Information Statement.

The Fair Work Act likewise sets the national minimum wage which must be paid to Australian workers.

The minimum wage is, pursuant to the Fair Work Act, the base rate to be paid to an employee for ordinary hours of work performed. It is a formula, in other words. The specific minimum wage that must be paid to a specific worker is determined by the specific industry-specific instrument or agreement under which they are employed.

This can differ, depending upon whether that instrument is a Modern Award. An Enterprise Agreement, or collectively bargained agreement, or National Minimum Wage order. Regardless, an Australian worker cannot be paid less than the national minimum rate of pay for the specific job performed. Minimum wages are not set in stone under the Fair Work Act. They are reviewed annually to determine any need for adjustment.

The Casual Employment Information Statement: What Is It?

The Casual Information Statement is an information document required to be provided at certain intervals to so-called Casual Employees pursuant to Australia’s Fair Work Act. A copy can be located here.

However, its essential purpose is to provide Causal Employees notice of their rights under Australia’s Fair Work regime. First, the Statement defines who is and who is not a Casual Employee. Under Australian employment law, you are a Casual Employee if you meet the following conditions:

  • You are offered a job;
  • But the employer makes no firm advance commitment that the work will continue indefinitely with an agreed pattern of work;
  • And you accept the work understanding that no commitment to make you a full-bore employee has been offered.

Casual Employee if you are a temporary employee.

In short, you are a Casual Employee if you are a temporary employee. The definition of the term “no firm advance commitment” is further elaborated upon in the Statement. According to the Statement, to analyze whether or not your employer has made “no firm advance commitment” to you, 4 factors must be considered:

  • Your employer can choose to offer you work, and it’s your choice whether or not to accept it;
  • You’ll be offered work when your employer needs you to work;
  • Your employment is described as casual;
  • You’ll be paid a casual loading or specific pay rate for casual employees.

The Statement clarifies that all 4 factors do not need to be present for your classification as a casual employee and that there is no 1 deciding factor from among them. The factors must be weighed to determine whether or not an employee is Casual or not. The balance of the 4-page Statement discuss the pathway to permanent full-time or part-time employment for the Casual Employee. As well as the limits of that pathway and the steps available to the employee if disagreement about that pathway occurs.

Employees-and-employers-have-to-co-exist.-One-cannot-survive-without-the- other
Employees and employers have to co exist. One cannot survive without the other. Negotiating is important, taking your bat and ball and going home achieves nothing. This goes back to the old days of conflict where the only way to resolution.

Enterprise Bargaining in 2022

Enterprise Agreements are workplace agreements bargained between single employers and collectivized workers’ groups or unions. Their terms apply only to that covered workplace, in contrast to the Awards issued by the Commission, which apply to entire industries. Generally, the Fair Work Act governs the framework within which Enterprise Agreements must be bargained. Under the Act, an employer-employee discussion concerning any of the following points may form the subject-matter of an Enterprise Agreement:

  • Matters pertaining to the relationship between an employer that will be covered by the Agreement. That employer’s employees who will be covered;
  • Matters pertaining to the relationship between the employer(s) and the employee organisation(s) that will be covered;
  • Deductions from wages for any purpose authorized by a covered employee;
  • How the agreement will operate.

An Enterprise agreement may be made by a single employer or two or more employers who are “single-interest” employers (i.e., engaged in a joint venture or are related corporations, etc.). It may not be struck with a single employee only.

Enterprise bargaining criticism

This statutory requirement for single or single-interest employer participation in Enterprise bargaining has been criticized as a flawed feature of Australian employment law. Other countries, such as New Zealand and Germany, have implemented sector-wide collective bargaining systems in which workers’ ability to collectively leverage fair wage and conditions. This guarantees from multiple employers across an entire sector may be enhanced.

In any case, in Australia, collective bargaining generally involves a single employer. Under the Fair Work Act, striking and other forms of industrial action are not permitted unless conducted in accordance with the Act’s specific provisions. In particular, such action is illegal unless it occurs in the process of the negotiation of a new Enterprise Agreement.

Collecting bargaining, under the Act, is regulated by the Commission.

Fair-work-court.-an-important-part-of-the-Australia-workplace-way-of-life
Fair work court. an important part of the Australia workplace way of life

Where Is Australian Employment Law Heading in the Future?

According to a recent PriceWaterhouseCoopers (PwC) study, 38% of workers in Australia are considering leaving their current employers in the next 12 months.

This is being called, in Australia as well as in the United States and elsewhere, the Great Resignation. The PwC study explores, in particular, what it is that Australian workers want from an employer. Perhaps unsurprisingly, the #1 condition or benefit that Australians seek is: compensation.

Despite all the of the discussion in the media and elsewhere regarding employees’ increased demand for remote work functionality and other such (understandable and rightful) demands. Fair wages and health and leave benefits continue to be Australians’ first priority in the employer-employee relationship.

Rise in insecure work

Meanwhile, the Australian Council of Trade Unions (ACTU) has likewise described a rise in insecure work in Australia in a recent options paper. According to the ACTU, while Australia’s economy has grown over recent decades, not all of Australia’s workers have been able to share in the country’s prosperity.

A key reason for the rise in economic insecurity found by the ACTU is the proliferation of poor quality, insecure jobs. In other words, the number of Casual Employees, as described above, has increased. As the ACTU illustrates the problem in its paper:

A primary school teacher is engaged on rolling one year fixed contracts with no income over the long summer break and no guarantee of work the following year. A labour hire worker in a warehouse in Melbourne has performed the same work as his workmate beside him for six months but still receives lower pay, inferior entitlements and no job security. A home care worker is engaged on a part-time basis but with no predictability as to weekly hours of work or income

ACTU

The ACTU concludes that the workers across disparate industries and sectors in Australia are experiencing the same phenomena. The shifting of risk of business failure from employers to employees in the form of attacks on wage minimums and on sick leave and other entitlements.

Permanent casuals

Over half of casual employees, the ACTU finds, are “permanent casuals” with long-term, ongoing and regular employment. But with none of the basic entitlements associated with permanent employment. Likewise, 1.1 million employees are, according to the ACTU, independent contractors vulnerable to exploitation. These contractors are more likely to work very long hours without the same minimum wage, minimum conditions, or protection from unfair dismissal as full-time or part-time “permanent” employees.

Independent contractors are not covered by the Fair Work Act and do not have access to Fair Work Australia, notes the ACTU. These trends are on the increase. Thus, the future of Australian employment law is destined to be a dynamic one. As a workers, employees, casual Employees, unions, and employers push and pull at the existing rules and regulations that have evolved in Australian law over the past 120 or more years.

Who will emerge on top? Is it required to be a zero-sum contest? Every working Australian would surely prefer that it not be. That employers recognize that the bottom line need not be the driving force behind all employee interaction or hiring or dismissal decision.

Unfair dismissal and well-moneyed opposition

Any further legal advance, though, would seem to be up against the same well-moneyed opposition that it ever has been. With ever more sophisticated techniques for avoiding its responsibility to workers at its fingertips. Thus, it is that much more vital that, if you believe that your rights under the Fair Work Act or other workplace rule or regulation has been or is being violated. Or that you have been dismissed unfairly that you contact an experienced Australian employment rights representative.

Threatened-with-dismissal,-not-paid- properly,-serious-misconduct- allegations,-workplace-investigations,- call-us.
Want advice? We are here for you. Threatened with dismissal, not paid properly, serious misconduct allegations, workplace investigations, call us.

Conclusion to A Short History of Australian Employment Law

A Whole New Approach Pty Ltd. is workplace advisory service. It is dedicated to representing employees only in unfair dismissal, harassment, and other workplace legal disputes. (we are not lawyers). AWNA are the workplace advisors that employers fear. We stand with you as warriors against discrimination, bullying, wealthy employers. To help you to achieve the best outcome possible in your particular circumstances.

All casual employment matters, workers rights, employment rights, forced to resign, adverse action, been sacked, call us immediately.

If you feel that you have been discriminated against, harassed, or have been unfairly dismissed, contact us now to schedule your initial free consultation Let’s continue to move the history of Australian employment law forward—together.

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Serious misconduct a surprising answer in dismissal case

Serious-misconduct?-A-surprising-answer-in-dismissal-case
Serious misconduct can take various forms. Aggressiveness and finger pointing can be considered misconduct. Its about what context this occurred

Serious misconduct a surprising answer in dismissal case

When you think of serious misconduct in the workplace, most people generally associate it with things like committing theft, fighting, bullying, harassment or discriminatory behaviour. But few of us ever consider whether inappropriate pooing in the workplace constitutes serious misconduct. What are you on earth writing about you are thinking. Serious misconduct a surprising answer in dismissal case, diversifying the usual work place circumstance.

In this article, we’ll look at a case that involved an employee who was dismissed for serious misconduct after feeling the need to publicly relieve himself while at work. The case was brought before the Fair Work Commission (FWC), whose final ruling may surprise you.

We must warn you, however, that if you’re squeamish about bodily functions, you may not want to read about the case below. But if you aren’t, it’s surely an entertaining read that will also inform you about the nuances of serious misconduct dismissals. Before we get into the details of the case, let’s first define what constitutes serious misconduct.

What is serious misconduct?

The FWC states that serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. It is also conduct that causes serious and imminent risk to the health and safety of a person. Or to the reputation, viability or profitability of the employer’s business.

Common forms of serious misconduct include sexual harassment, assault, fraud, intoxication at work, theft. The refusal to execute instructions consistent with the employment contract. It’s important to note that an employer doesn’t have to provide an employee with paid notice of termination if they have been dismissed for serious misconduct.

Suspended-from-the-workplace,-after- abusing-a-co-worker.-Maybe-dismissed
Suspended from the workplace, after abusing a co worker. Waiting outside to see what happens next

Courier finds himself in the poo at work and later dismissed for serious misconduct

On the night of 5 July 2015, Sydney-based courier for Dorevitch Pathology, George Moskou, was making a visit to a client’s medical clinic. He had been feeling unwell during the day. While walking back to his car after checking the clinic’s night box, he suddenly felt the need to defecate desperately.

Feeling like he had no choice in the matter. Mr Moskou proceeded to head around the corner of the medical clinic. There, he found a dark section of the car park where he subsequently did his business. Having washed his hands under a tap, Mr Moskou retrieved some tissues from his vehicle and attempted to clean up his mess as best he could. He even went so far as to call his partner to deliver some toilet paper, which she kindly did.

However, according to evidence he submitted to Fair work, Mr Moskou admitted that he had left a right old mess in the client’s car park. He told Fair work that his stools weren’t solid and that he left soiled tissues and toilet paper strewn on the asphalt. In addition to a few in the clinic’s garden bed. Mr Moskou humbly admitted to Fair work that, in hindsight, he should have picked up the soiled tissues and that he could have washed the area down. He stated that it was just an accident. He conceded that he had no idea who was going to clean up his mess.

Unfortunately for Mr Moskou, Dorevitch Pathology were later informed of his impromptu toilet break, and he was summarily dismissed for serious misconduct.

Saying-sorry-sometimes-will-save-your- job.-Sometimes-its-too-late-to-take-what-was-said-or-done.-Think-before- you-act.
Saying sorry sometimes will save your job. Sometimes its too late to take what was said or done. Think before you act.

The employee challenges his serious misconduct dismissal at the FWC

In his unfair dismissal application to the Fair work Commission, Mr Moskou contended that his dismissal for serious misconduct was disproportionate. He argued that his actions after the pooing incident extenuated his wrongdoing. Namely, that he had attempted to clean up his mess, tried to contact his supervisor, and hadn’t denied that the incident had occurred.

Mr Moskou also submitted as evidence to the Fair work a letter from his doctor that stated he had gastroenteritis. This was why, the doctor claimed, Mr Moskou couldn’t wait to find a public toilet on the night of the incident.

The employer provides evidence to support the dismissal for serious misconduct

Dorevitch Pathology, on the other hand, argued to the Fair work that Mr Moskou was dismissed for serious misconduct for two reasons. Firstly, because he had defecated on their client’s property. And secondly, because he failed to make a serious attempt to clean up his mess. Dorevitch Pathology asserted that it wasn’t notified of the incident by Mr Moskou, thereby preventing remedial action taking place. The company also said that their employee wasn’t frank when he was questioned about the incident.

Dorevitch Pathology also failed to accept the medical evidence Mr Moskou had provided at the time of his dismissal. The company argued that the letter provided by the doctor referred to a “medical condition” rather than gastroenteritis. Which was the key reason why Mr Moskou was forced to do his business in the client’s carpark. The company challenged the assertion that their employee couldn’t do his business somewhere more appropriate.  

Causing-an-injury-in-the-workplace,-will-be-considered-serious-misconduct.
Causing an injury in the workplace, will be considered serious misconduct. Particularly if processes were not followed or negligence occurred.

Was it serious misconduct? The FWC makes its decision.

After weighing up the evidence of both parties, the Fair Work Commissioner found that on the night of the incident, Mr Moskou indeed “had an urgent need to defecate that he could not control.”

“There is no evidence before me that Mr Moskou had willfully used the medical clinic’s car park as a toilet,” said the Commissioner. “Rather, Mr Moskou appeared to still be embarrassed and uncomfortable when giving evidence about what had happened, some 3 months after the incident occurred.”

The Commissioner further stated “that no normal person would choose to do what Mr Moskou did. If there was either no need or if there was another viable option (i.e. a public toilet).” He also acknowledged Mr Moskou’s attempt at cleaning up his mess, while admitting that it wasn’t the most elegant solution to the problem.

“Therefore, I find that Mr Moskou had no other option, other than to defecate in the medical clinic’s car park. As he had an urgent need to defecate,” said the Commissioner. For these reasons, the FWC ruled that Mr Moskou’s summary dismissal for serious misconduct was unfair.

“In all the circumstances of this matter…on balance, I find that Mr Moskou’s summary dismissal was harsh,” the Commissioner said. “This is on the basis that, although the misconduct was serious, it was not serious misconduct and the misconduct was not so serious as to warrant dismissal without notice.”

Valid reason however is it serious misconduct

“There was a valid reason for the dismissal and the process was procedurally fair. However, summary dismissal in these circumstances was harsh and disproportionate. What was appropriate was dismissal with notice’. The Commissioner ruled that due to the breakdown in the employer-employee relationship, reinstating Mr Moskou was out of the question. He therefore decided to order Dorevitch Pathology to pay their former employee one weeks’ pay in lieu of notice.

Why the serious misconduct dismissal was ruled as unfair

The FWC states that if an unfair dismissal is alleged, the employer must prove that there was a valid reason for the dismissal. The reason must be “sound, defensible or well founded”. It doesn’t require conduct amounting to a repudiation of the employment contract.

When an employee is dismissed without notice for serious misconduct, like in the aforementioned case, the standard of proof is slightly different. The FWC in fact sets a very high bar that employers must meet to justify a dismissal for serious misconduct. The employer must not only prove that the reason for dismissal was valid, but also that it wasn’t harsh. Essentially, they must prove that the summary dismissal wasn’t a disproportionate response.

In the aforementioned case, the Fair work ruled that there was indeed a valid reason for the dismissal, and that the process was procedurally fair. However, the summary dismissal of Mr Moskou was deemed harsh and disproportionate. The Commissioner stated that the appropriate response to Mr Moskou’s misdeeds would have been a dismissal with notice.

Theft-or-fraud-is-serious-misconduct- and-will-result-in-dismissal
Theft or fraud is serious misconduct and will result in dismissal. Gone are the days of “i only stole a little it”, “i only borrowed the money”

Conclusion to Serious misconduct a surprising answer in dismissal case

Serious misconduct is a charge that employers are all too willing to make against their employees, even if their conduct wasn’t necessarily serious. This is because dismissing an employee for serious misconduct will cost them far less. It means that they don’t have to provide nor pay for an employee’s notice period. They can also potentially avoid paying the employee other entitlements, like annual leave or long-service leave.

If you think you’ve received an unfair dismissal for serious misconduct, A Whole New Approach can help you make your case at Fair work Our team of employment law experts have for over 20 years helped Australian workers fight for their rights against unscrupulous employers. We can simplify the process of submitting an unfair dismissal application. Explain your legal rights in terms you can easily understand. All fair work matters, probation period issues, workers rights, employment rights, forced to resign, abandonment of employment, call us.

Call us on 1800 333 666 for a free, confidential discussion.

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Extended absence from work: When you can be dismissed

Extended-absence-from-work:-When- you-can-be-dismissed
You cannot stay off work indefinitely without consequences. Keep your employer informed. Avoid dismissal

Extended absence from work: When you can be dismissed

]The question of whether an employee can face dismissal after being absent from work for a long period is one we are routinely asked here at A Whole New Approach. Many employees are forced to take long-term leave due to illness or injury. And when you are feeling unwell, the last thing you want to think about is whether you will be dismissed. Extended absence from work: When you can be dismissed, is increasingly relevant in the post pandemic era as employees try to recover both physically and mentally.

The good news is that the Fair Work Act protects Australian workers from dismissal when taking long-term sick leave. However, it’s important to understand that there are limitations to these protections. Let’s delve further into this issue to understand what your rights are.

How long can you be absent without facing dismissal?

All full-time employees are entitled to 10 days of paid sick leave per year. If you haven’t taken all 10 days of sick leave in a single year, you can use the remaining days in later years. If you have exhausted all your paid sick leave, you may then be able to take unpaid sick leave.

The Fair Work Commission recognises that an employee is sometimes unable to work for an extended period due to illness or injury. As such, it offers protections from being dismissed when taking unpaid sick leave.

An employee may be protected from dismissal if they are absent for less than 3 consecutive months or less than a total of three months in the last twelve-month period. The employee must provide evidence of their illness or injury in order to receive protection.

It must be noted that these time limits don’t apply when you are still using your paid sick leave. An employee can’t be dismissed while taking paid sick leave, no matter how long they are absent.

Extended-absence-from-work:-When-you-can-be-dismissed
Employee is injured, not his fault that he cannot come back to work for a long period of time. Should he be dismissed for this problem not of his own making? What does extended absence from work mean?

Is dismissal a certainty after three months absence?

The short answer is no. An employee may still be protected from dismissal even after they have been absent for more than three months and have used all their paid sick leave. Other factors can determine whether an employee can be dismissed or not. In addition to Fair Work protections, an employee may also be protected by relevant state and territory workers compensation and rehabilitation laws. Also, an employer must follow proper procedure when dismissing an employee for a long-term absence.

If an employer doesn’t follow the rules, an eligible employee can challenge their dismissal through Fair Work. This includes making:

  • An unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable.
  • A general protections claim if the dismissal was due to another protected reason
  • An unlawful termination claim, which is a claim under a state or federal anti-discrimination law.

While an employee can receive compensation from Fair Work if they make a claim under these circumstances, it’s not always a clear-cut process. Other factors can influence if or how they are compensated.  

Let’s look at a recent unfair dismissal case that can help you understand some of these factors, Peter David Bostock v Austmont Pty Ltd [2022].

33-year employee dismissed after nine-month absence from work

Peter Bostock, a Sydney-based, full-time factory foreman for Austmont Pty Ltd, had been employed by the company since March 1989. But after feeling “unwell” on 22 April 2021, he went on sick leave and never returned to work until his dismissal. Shortly before his dismissal, Mr Bostock had been investigated for an anonymous complaint made against him, but it was found to not be substantiated.

After almost three months absence from work, on 16 July Mr Bostock received written notification from Austmont that he was required to undertake a fitness for duties assessment. His wife responded to the request, replying that there was no requirement for him to take the assessment.

During his absence from work, Mr Bostock made two workers’ compensation claims. One of these was for a hernia he had suffered. The other claim was in relation to mental illness or injury which he claims was caused by Austmont. As part of the latter claim, Mr Bostock underwent a medical examination in October. However, the result of the examination was dismissed by his insurer.

After nine months absence from work, on 10 February 2022 Austmont dismissed Mr Bostock with immediate effect. The company didn’t provide him with a warning and a chance to respond to the reason for his dismissal. He was simply emailed his termination notice.

Injured-employee-asking-to-come-back -to-work-and-the-employer-won't-let-him-until-fully-recovered.-Is-this-fair?
Injured employee asking to come back to work and the employer won’t let him until fully recovered. Is this fair?

The employee makes an unfair dismissal claim with the Fair Work Commission

In his unfair dismissal application to Fair Work, Mr Bostock outlined the reasons why he felt his dismissal was unfair. Mr Bostock contended that he had experienced bullying, harassment, ostracization, exclusion and unfair treatment from Austmont. This led to his diagnosis of major depressive disorder – an illness that he continued to suffer at the time of the Fair Work hearing.

Mr Bostock claimed that he wasn’t able to return to work due to this “persisting medical condition.” He said that the condition meant that he was unable to perform the requirements of his job.

In response to these assertions, Austmont argued to the Commission that Mr Bostock was dismissed for a valid reason, namely that he didn’t have the capacity to do his job. And while Austmont accepted Mr Bostock’s diagnosis of major depressive disorder, the company denied that it was the cause of it.

Was there a valid reason for dismissal?

For a dismissal to be valid, it must have been motivated by a valid reason. Namely, one that is sound, defensible or well founded, and not capricious, fanciful, spiteful or prejudiced.

Commissioner Alana Matheson found that Austmont had in fact dismissed Mr Bostock for a valid reason. She said that his own evidence submitted to the Commission supported Austmont’s argument that Mr Bostock wasn’t able to perform the requirements of his role nor return to work.

“I am satisfied that the Respondent had a valid reason for the Applicant’s dismissal. That this decision was sound, defensible and well founded,” said Commissioner Matheson.

Was the dismissal harsh, unjust or unreasonable?

While there was a valid reason for Mr Bostock’s dismissal, this still didn’t mean that the dismissal wasn’t unfair. For a dismissal to be unfair, it must be proved that it was harsh, unjust or unreasonable.

One of the critical reasons that can result in this judgement is if the employer didn’t provide the employee with an opportunity to respond to the reason for their dismissal. That is, before the decision to terminate employment took place. Commissioner Matheson found that Austmont didn’t provide Mr Bostock with the opportunity to respond to the reason for his dismissal.

The company had told Fair work that it didn’t because he couldn’t return to his role. Also, because Mr Bostock and his wife hadn’t responded to its previous correspondence in relation to his fitness for duties assessment. Therefore, no response was necessary

Commissioner Matheson, however, disagreed.

“It may have been the case that providing an opportunity to respond would not have changed the outcome of the decision to dismiss [Mr Bostock], however I consider that the opportunity to respond should have been provided and this weighs in favour of a finding that the dismissal was unfair.”

“… It was an opportunity and courtesy that should have been extended to the [supervisor] in the context of an employee who has almost 33 years of service with [Austmont].”

Commissioner Matheson of the Fair work Commission

Outcome

For this reason that Commissioner Matheson ruled that Mr Bostock had been unfairly dismissed. She ordered Austmont to pay Mr Bostock $470.72 in compensation. On the basis that he would have been employed for a further fortnight. Not a good outcome.

Negotiated-a-return-to-work.-Everybody's-happy.-not dismissed
Negotiated a return to work. Everybody’s happy. Keep your employer informed don’t be accused of abandonment of employment. Don’t give the employer an excuse to sack you. They already are not happy since you have been away for a lengthy period of time

3 important lessons from this unfair dismissal case

We receive a lot of calls from those who have been dismissed after a long absence of work. If you’re in the same boat, it’s critical to understand the realities of taking an unfair dismissal application to the Fair Work Commission.

The aforementioned case teaches us three key lessons in this regard:

You can’t be absent from work for a long period without consequences.

If you are absent from work for more than three months, there’s no certainty that you’ll be dismissed. But there’s also no certainty that you’ll keep your job, either.

As Commissioner Matheson said in the aforementioned case:

“If an absence extends beyond that [3 month] period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed that medical information could have a bearing on the adequacy of the reason for termination”.

Your employer must give you the opportunity to respond

Prior to the decision to terminate your employment, your employer must notify you of the reason for the dismissal. Give you an opportunity to respond. However, as we saw in the aforementioned case, even if your employer doesn’t provide this opportunity, it doesn’t necessarily mean that your dismissal wasn’t valid.

As we saw by the paltry compensation Mr Bostock received, winning an unfair dismissal claim by virtue of your employer not following proper procedure is often a hollow victory. If the dismissal was still deemed valid, then your compensation will not amount to much in most cases

Don’t represent yourself at an unfair dismissal hearing

It’s not uncommon for employees to represent themselves at their Fair Work hearing. In the aforementioned case, Mr Bostock represented himself and therefore didn’t argue his case as effectively as possible.

If you represent yourself, it’s highly unlikely that you won’t be equipped to navigate the legal nuances of an unfair dismissal claim. And it’s very likely it won’t be successful. It’s therefore highly advised that you seek representation from a legal professional.

reaching-out-for-help-in unfair-dismissal-case
Injuries, return to work, facing dismissal, extended absence from work, are all important matters. Get advice. Do all employer’s do the right thing? Some do, some don’t. Don’t leave your future in the hands of others.

Conclusion to Extended absence from work: When you can be dismissed

For the last two decades, A Whole New Approach has helped countless employees gain rightful compensation for being unfairly dismissed. Our team of employment law specialists can simplify the process of making a claim with Fair Work and can ensure your case is argued as effectively as possible. We can help in all Fair work matters, workers rights, casual employment concerns, employment rights, probation period issues, abandonment of employment.

Call us today on 1800 333 666. Free, confidential discussion about your situation and how we can help you seek justice.

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Can swearing in the workplace get you dismissed?

Can-swearing-in-the-workplace-get-you-dismissed?
Swearing in the workplace, or in a teams meeting, including hand gestures is taken very seriously by employers. It may lead to dismissal.

Can swearing in the workplace get you dismissed?

Being dismissed for swearing in the workplace may seem a harsh outcome for an employee. But when it comes to using vulgar language at work, a dismissal really hinges on three factors. Firstly, the context in which the swearing took place. Secondly, what was actually said. And thirdly, the tone and manner in which the employee said it. Can swearing in the workplace get you dismissed? is a great topic to discuss, its relevant to what goes on in the workplaces today.

There have been countless cases heard by the Fair Work Commission where employees have been dismissed for swearing. And in many of these cases, the circumstances around these three factors differ wildly. Some employees have had their unfair dismissals upheld, while others have been reinstated or received compensation.

In this article, we’ll look at a fiery unfair dismissal case involving a foul-mouthed wharfie in Western Australia. Grant Rikihana vs. Mermaid Marine Vessel Operations Pty Ltd. This case will help you understand the contextual factors that the Fair work considers when ruling on unfair dismissal cases involving swearing. But we must warn you, if you are sensitive to extremely vulgar language, you may want to proceed with caution.

Events leading up to dismissal: Wharfie lands in hot water after telling off colleague

Grant Rikihana had been employed as a dockhand for Mermaid Marine Vessel Operations in Dampier, Western Australia since 2010. From 2012 until his dismissal in September 2014, he had a history of repeatedly and aggressively swearing at his colleagues and superiors. In addition to disobeying directions.

The first incident took place in April 2012. Mr Rikihana was at the gate of the Mermaid supply base when a security officer asked him to show his induction card. To this request, Mr Rikihana simply replied, “f**k off”. Mr Rikihana was subsequently investigated by Mermaid for the incident and was handed a letter as a formal record of his inappropriate conduct.

Can-swearing-in-the-workplace-get-you-dismissed?
Hand gestures can be considered swearing. It can be considered offensive. Depending on the context it may justify dismissal.

The second swearing incident

In September 2012, Mr Rikihana used the same obscenity as he had in April, but this time at his supervisor. During a meeting at the start of the day, the supervisor told the crew that untreated sewerage would be brought onto the wharf. When Mr Rikihana said that the company had to provide a safe working environment, the supervisor told him that they were obliged to carry on working. At this point, Mr Rikihana told the supervisor to “f**k off.”

The employee willfully disobeys his superior

In December 2012, Mr Rikihana was involved in an incident where he didn’t swear, but that played a significant part in his eventual dismissal. It took place while attending to an emergency involving a Mermaid worker who had crushed his hand on the wharf.

As the designated certified safety representative, Mr Rikihana went to the scene of the accident. However he arrived some 2.5 hours after the incident happened. And when he got to the wharf, he was stopped at the gate by the Mermaid Supply Base manager for not having a valid permit and not wearing protective gear.

Despite this, Mr Rikihana attempted to walk to the site of the accident, disregarding multiple warnings not to do so by the manager. He was then physically prevented from attending the site by the manager and another colleague. After the incident, Mermaid handed Mr Rikihana a written warning that warned him that he was one incident away from dismissal, concluding thusly:

“You are hereby on notice that any further indiscretions on your part in relation to your behaviour in the workplace or in relation to your work performance generally will likely result in the termination of your employment.”

“Get the fat lazy c*** to do it.”: The third swearing incident

In February 2013, Mr Rikihana was directed by the Mermaid Leading Hand (i.e. a senior manager) to assist one of his colleagues. In response to this direction, Mr Rikihana told the Leading Hand in a loud and aggressive tone to “Get f**ked”. Regarding another employee, “Get the fat lazy c*** to do it”. The Leading Hand simply walked off, saying that he had had enough of Mr Rikihana’s behaviour.

Despite the prior warning that one more incident of inappropriate behaviour would result in his dismissal, Mr Rikihana was instead emailed a written warning.

Better-off-keep-your-mouth-shut.-Once-you-have-said-it,-cannot-be- taken-back
Better off keep your mouth shut. Once you have said it, cannot be taken back

“You’re a d**khead.”: A final foul-mouthed tirade ends in the employee’s dismissal

On the morning of 4 September 2013, Mr Rikihana was involved in yet another swearing incident that finally ended in his dismissal.

The incident took place during a meeting in which safety issues were discussed among a crew of workers. At the meeting, a hazard observation card had been brought up, on which an issue was identified. The Leading Hand mockingly derided the issue on the card, stating “You can’t be serious. This is not a serious issue.”

It was then that Mr Rikihana said to the Leading Hand, “You’re a d**khead. You are supposed to be a Leader of this group. You’re a c**k.” The duo engaged in a heated back and forth. The Wharf Supervisor present at the time alleges that Mr Rikihana was very aggressive in criticising the Leading Hand, and that he had to step in to stop the argument. He says that Mr Rikihana then ceased speaking loudly at his superior, but then uttered “d**khead” under his breath. This initiated another argument, in which the Wharf Supervisor had to once again intervene.

The Leading Hand subsequently made a formal complaint about Mr Rikihana, and the latter was questioned by Mermaid. After an investigation into this incident, on 13 September Mr Rikihana was dismissed by Mermaid for his continued disregard for the company’s behavioural standards.

The employee makes an unfair dismissal claim with the Fair Work Commission

In his unfair dismissal claim, Mr Rikihana didn’t deny that he swore multiple times in the workplace. He argued that swearing wasn’t out of the ordinary at Mermaid. It’s for this reason that he argued that he hadn’t breached the company’s behavioural standards and therefore his dismissal was unfair.

Mr Rikihana also told Fair work that he wasn’t notified of the reason for his dismissal, nor was he given the opportunity to respond to this reason. In addition, he claimed that Mermaid hadn’t followed the proper disciplinary procedure.

Mermaid, however, argued that Mr Rikihana’s dismissal was valid as he had breached Mermaid’s code of conduct. It rejected the claim that swearing was not out of the ordinary at the company. Mermaid also argued that Mr Rikihana’s inappropriate behaviour wasn’t limited to swearing, but also included a level of aggression and intimidation towards others.

Was the employee’s dismissal unfair? The Commission makes its decision.  

Commissioner Bruce Williams found that swearing was in fact a regular occurrence at Mermaid. Stating that it was part of the “everyday descriptive language” used at the dock. However, he found that “swearing aggressively and maliciously at another person,” as Mr Rikihana had done on multiple occasions, wasn’t a common occurrence and was “totally unjustified and inexcusable.”

Commissioner Williams found that Mermaid had in fact notified Mr Rikihana of the reason for his dismissal and gave him the opportunity to respond to this reason. He also found that the employer hadn’t breached its disciplinary procedure.

The Commissioner ultimately found that Mr Rikihana’s dismissal wasn’t harsh, unjust or unreasonable, and ruled that it was fair. “This misconduct was another example of behaviour [Mr Rikihana] had engaged in over the course of his employment where he had responded to persons in authority in a contemptuous and aggressive manner without justification,” said Commissioner Williams.

“Mr Rikihana had been put on notice by his employer on a number of occasions that this was not acceptable. He was aware his actions were contrary to the behavioural expectations of his employer as detailed in its code of conduct and when asked to account for his actions he was not honest in his responses to his employer. Mr Rikihana’s dismissal in all the circumstances was not surprising and certainly was not unfair.”

Swearing-is-not-funny.-Its-not-a-matter- of-putting-a-dollar-in-the- swear-jar-and-everybody's-over-it.
Swearing is not funny. Its not a matter of putting a dollar in the swear jar and everybody’s over it. It can be considered offensive, despite others swearing as well

Swearing isn’t always a valid reason for dismissal, however

The aforementioned case teaches us that context matters when an employee is dismissed for swearing in the workplace. Mr Rikihana had a history of swearing, in addition to doing so aggressively at his colleagues and superiors. This ultimately swayed the Fair work Commission to rule that his dismissal was fair.

Where swearing isn’t a sufficient reason to dismiss an employee.

However, not all cases turn out like this. In a 2015 unfair dismissal case, Smith vs Aussie Waste Management, a garbage truck driver swore at his manager after being questioned about the time it was taking to perform his duties. The driver launched into a tirade of obscenities in which he told his manager. “you dribble sh*t, you always dribble f**king sh*t.” The employee was subsequently summarily dismissed for serious misconduct.

However, at his unfair dismissal hearing, the Fair work found that while the driver’s behaviour wasn’t acceptable, his swearing wasn’t sufficient reason to dismiss him. In coming to the decision, the Commission considered a number of contextual factors. This included that the language used by the driver wasn’t uncommon in the workplace. Also, that the conversation wasn’t overhead by other employees. And finally, that the driver didn’t intend to undermine his manager’s authority.

All-employees-are-adults-and-want-to- be-treated-as-such.-don't-be-dismissed-for-an-outburst
All employees are adults and want to be treated as such. Taking ownership of your actions in the workplace is important.

Conclusion to Can swearing in the workplace get you dismissed?

Have you been dismissed for swearing?

As you can see swearing in the work place and the outcome that should apply is not straight forward. If you feel that you have been unfairly dismissed for swearing or about to be. A Whole New Approach can guide you through the process of making a claim with the Fair Work Commission. Our team of employment experts can assess whether you are eligible for compensation. They will streamline the process of submitting an unfair dismissal application. Ring us for all workplace situations, including abandonment of employment, casual employee matters, workers rights. Toxic workplace culture and serious misconduct caused by swearing.

Call us today on 1800 333 666. For a free, confidential discussion about your situation and how we can help you seek justice.

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Can you be dismissed for refusing to agree to a PIP?

Passed-the-performance-improvement-plan-(PIP)
Passed the performance improvement plan (PIP). Didn’t think I deserved one to begin with. But didn’t want to be dismissed for refusing to be placed on one.

Can you be dismissed for refusing to agree to a PIP?

In recent years, performance improvement plans have become an increasingly common precursor to dismissal. Most employers use performance improvement plans to genuinely improve an employee’s performance. Some, however, may have already decided to dismiss the employee. The performance improvement plan is simply a way to establish a valid reason for doing so. Can you be dismissed for refusing to agree to a PIP? is more relevant than ever as employers seek to extract more and more productivity and used as a dismissal tool.

So, what happens if you refuse to participate in a performance improvement plan? An unfair dismissal case heard by the Fair Work Commission in March helps answer this question. It involves an employee who, among other misdeeds, asked a job candidate when she intended to have children. The employee was subsequently issued a performance improvement plan, which he refused to participate in. Let’s look at how the case unfolded.

“In Chinese culture, this question is ok:” Coordinator receives warning for discriminatory behaviour  

Since April 2018, Jeff Li had been employed as a Senior Import and Export Coordinator for global research company PPD Australia PTY LTD. He was considered a good employee up until March 2021, when Mr Li interviewed three female candidates. Each later complained to his manager about the inappropriate way he conducted their interviews. One of the candidates complained that Mr Li was “really rude,” while another that she had been “put down” by him. The third candidate, however, accused him of something far more serious.

“During the interview, I was asked questions about my marital status and plans for having kids,” said the candidate. “I didn’t know how to respond to those questions back then. I didn’t have the gut to say it straight out but I don’t appreciate being asked these questions.”

When asked about these incidents, Mr Li initially denied what he characterized as the “untrue remarks of the interviewee”. But he later admitted to PPD’s head of HR that he had asked the candidate discriminatory questions, explaining the reason for doing so thusly: “I was trying to protect the company as a lot of training needed to be done and then someone who may get pregnant would just go on leave,” said Mr Li.

Mutual cultural understanding

Mr Li also explained that because he and the candidate shared a mutual cultural understanding. That he was justified in asking such questions. “This candidate have the similar background, Chinese background,” said Mr Li. “In Chinese background – Chinese culture, this question is okay, it’s common questions.”

During Mr Li’s unfair dismissal hearing, PPD submitted to the Fair Work Commission that on 16 April 2021, it’s head of HR had given Mr Li a “verbal warning”. He was told that his behaviour had been unacceptable and was in breach of company policy and discrimination laws. Mr Li, however, denied ever receiving the warning.

Can-you-be-dismissed-for-refusing-to- agree-to-a-PIP?
Absolutely confused by the performance improvement plan. Been here for years, nothing changed, now I’m threatened with dismissal if i don’t sign it..

The employee is issued with a performance improvement plan

In the months following this incident, Mr Li was involved in three more incidents of inappropriate behaviour. The first one, he undermined a management decision in response to his unsuccessful application for a promotion. In the second, he was disrespectful to his line manager. And in the third, he refused to perform duties related to mentoring new staff members.

On 20 July 2021, Mr Li was on his first day of annual leave when he received a warning letter from PPD, which was couriered to his home. The letter referred to “recent behaviors displayed” by Mr Li, then detailed the four incidents of inappropriate behaviour. It also notified Mr Li that he would be placed on a performance improvement plan:

“Considering the above situations, we are issuing you a 1st warning letter and notifying you that you will be placed on a Performance Improvement Plan (PIP). Once you return from your vacation. If your behaviors don’t improve during the course of the PIP, your employment with PPD may be terminated. I will hold a meeting with you to discuss this in more detail once you return from vacation. This should be around mid-August 2021.”

Unfair dismissal hearing

At Mr Li’s unfair dismissal hearing, PPD’s head of HR admitted that prior to issuing the warning letter, he hadn’t investigated nor discussed the three latest allegations of inappropriate behaviour made against him. He also acknowledged that sending the letter to Mr Li on his first day of leave was “not ideal,” but said he hoped it would give him time to reflect on his actions.

The coordinator rejects the performance improvement plan, accuses employer of “workplace bullying”

On 5 August 2021, Mr Li emailed a complaint to PPD’s “corporate compliance.” He alleged that the warning letter was “unlawful” and a “fabrication to retaliate [against] me.” He also said it was tantamount to “workplace bullying and oppression” and had caused him “mental and psychological pain.”

On his return to work, Mr Li met with his manager and the head of HR to discuss his performance improvement plan. Mr Li was told that it would go for three months and that if he failed to show behavioural improvements in that time, his job would be at risk. Mr Li said that he wouldn’t participate in the plan because he believed it was invalid. He once again denied the allegations of inappropriate conduct made against him.  

Can-you-be-dismissed-for-refusing-to-agree-to-a-PIP?
Employees can get micro managed, makes the workplace more toxic and stressful. Picking up every little mistake to justify sacking of the employee.

The employee is informed of his dismissal indirectly

On 3 September 2021, a group of PPD managers received an email informing them that Mr Li’s had been dismissed.

“Hi Team,

FYI Jeff’s last day will be 6th Sept.

For future queries related import/export, trade compliance of Australia & New Zealand, please keep reaching out […] [email].” Shortly after this email was sent, it was forwarded to Mr Li by a colleague who wished him well for his future endeavors. Mr Li then emailed his manager, saying that it was “ridiculous that I have not received notice from you as my manager.”

Li then met with his manager and the head of HR and was told he could still take part in the performance improvement plan if he wished. Mr Li, however, told them that he wouldn’t take part. He would later argue to the Commission that his dismissal was effectively a fait accompli, and that he wasn’t afforded the opportunity to say otherwise.

Three days later, Mr Li received his letter of termination. The head of HR told the Commission that he was delayed in sending the letter because he “had a very busy day” on 3 September.

The employee submits an unfair dismissal application with Fair Work

Seeking reinstatement of his position, Mr Li submitted to the Commission that he had never done anything wrong and that his manager held a grudge against him. He argued that his performance improvement plan was not only “invalid,” but a “set up” designed to terminate his employment.

His reasoning for this was because it was based on the incident in which he asked discriminatory questions, which he argued had been resolved. Also, that he was falsely accused of the three other instances of inappropriate behaviour.

PPD, on the other hand, argued that Mr Li was fairly dismissed due to his unwillingness to participate in a performance improvement plan. The company said that this amounted to a failure to comply with a reasonable and lawful direction in breach of Mr Lin’s employment contract.

Put-on-a-performance-improvement- plan,-because-employee-insisted-it-was-their-right-to-work-from-home
Put on a performance improvement plan, because employee insisted it was their right to work from home. Employer is convinced it won’t work.

Was the employee unfairly dismissed for rejecting the performance improvement plan?

At the Commission hearing, Deputy President Amanda Mansini assessed the incident in which Mr Lin asked the job candidate about marriage and children. She accepted that it was discriminatory behaviour “and at the very least not justified and inappropriate.”

However, Deputy President Mansini described the manner in which Mr Lin learnt of his dismissal via a colleague’s email as “deplorable.” She found that this was one of many procedural failures which later the same day led to a final disciplinary meeting that had a predetermined result.

The Deputy President ultimately found that Mr Lin’s refusal to participate in the performance improvement plan was a valid reason for his dismissal. However, she ruled that it was harsh and unreasonable. As Mr Lin wasn’t given an opportunity to respond to the allegations made against him. Also, because the warning letter didn’t clearly outline his risk of dismissal.

“I am satisfied that the 3 September 2021 meeting was a classic case of an employer ‘going through the motions’ of giving an employee an opportunity to respond when, in substance, a firm decision to terminate had already been made,” said the Deputy President.

Deputy President Mansis ruled that Mr Lin’s dismissal was unfair. On the basis of PPD’s “strenuous” opposition to Mr Lin’s reinstatement, he was instead awarded $12,932.52 (plus super).

What can we learn from this unfair dismissal case?

As we saw in the aforementioned case, refusing to engage with an employment improvement plan is a valid reason for dismissal. However, an employer must follow the guidelines of procedural fairness outlined in the Fair Work Act. Mr Lin wasn’t given the chance to respond to the allegations made against him, nor was he warned about his risk of dismissal in writing.

When deciding if a dismissal is unfair, the Commission will consider if the employee was notified for the reason for their dismissal. Also, whether they were given the chance to respond to that reason. And, whether the employee was warned about their unsatisfactory performance prior to the dismissal. These are just a few of the criteria used to judge if a dismissal was unfair.

Have you been issued with a performance improvement plan?

Going-to-be-dismissed,-did-not-reach- the-goals-outlined-in-the-PIP
Going to be dismissed, did not reach the goals outlined in the PIP. The goals were unrealistic given what was

Can you be dismissed for refusing to agree to a PIP?

If you are issued with an employment improvement plan, you ultimately have two choices. You can either resign or agree to participate in the plan. While it may be hard to do so, participation is advised given that refusal can lead to a valid dismissal. It also gives you an opportunity to engage with your employer and attempt to resolve any issues with them. If you’re unhappy with the plan, you can challenge your employer on its details.

The Fair Work Ombudsman provides a helpful guide on what a performance improvement plan should contain. If you need to request changes to your plan, ensure you do so in writing. And if your employer refuses to accommodate your changes, it’s important to remain persistent. It’s advised to continue politely engaging them both verbally and in writing, while still ensuring that you comply with the performance improvement plan.

PIP’s and the threat of dismissal can be stressful

I hope the article Can you be dismissed for refusing to agree to a PIP? has been helpful, it can be very stressful times. If you need guidance on how to approach your performance improvement plan, or if you have been unfairly dismissed after refusing one. A Whole New Approach can help. Our team of advisors can provide easy-to-understand advice about your options and help you make a claim with Fair Work. We deal with all workers rights, employment rights, probation period issues, workplace harassment, casual employee rights, toxic workplaces.

Call us today on 1800 333 666 for a free, confidential discussion.

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Dismissing a employee can it be outsourced?

Dismissing-a-employee-can-it-be-outsourced?
A employee getting booted from his job. Can this be given to others to do?

Dismissing a employee can it be outsourced?

When I reading a recent unfair dismissal case, where an employee was dismissed by the police, I thought of the George Clooney movie “up in the air“. This is where a employee who worked a consultancy firm specializing in employment-termination assistance. His job was basically to fly around the U.S. sacking employees or making them redundant on behalf of companies. Its a great movie, the way they dismiss employees in the USA is harsh compare to Australia. Thank god for the Fair work Australia regime to keep everybody in line. So Dismissing a employee can it be outsourced? got me thinking how much of it goes on in Australia?

I have come across this scenario before, where unions have sacked a member on behalf of the company, (usually in circumstances the employer is scared of the employee). Workers Compensation insurance companies case mangers tell the client the company is not taking them back, their dismissed. A outplacement company contacts an employee to tell them their dismissed and their job is to get you another one. So lets look at this particular case and see what happened.

Cannot delegate the task of dismissing an employee

An employer cannot delegate the task of dismissing an employee to a third party. The Fair Work Commission (FWC) has ruled in a recent unfair dismissal case. It involved a Victorian factory worker who after allegedly grabbing his boss by the throat received notice of his dismissal from the police, rather than his employer.

The ruling meant that the worker, who had a history of workplace misbehavior. Was cleared to pursue a general protections claim against his employer. Let’s look at the events leading up to the employee’s final fiery confrontation with his boss. Further why the Fair work came to rule in his favor.

Dismissing-a-employee-can-it-be-outsourced?
A lot of employees end up sacked, dismissed, what starts as a argument, then finger pointing. Then down hill from there

Bullying, sexual harassment and drugs: The events that led to the factory worker’s dismissal

Callum Reynolds had been employed by Concrete Sleepers Victoria since August 2021. But it wasn’t long before the relationship with his employer soured. In evidence given to the Fair work, Concrete Sleepers alleged that Mr Reynolds had engaged in a long list of unacceptable workplace behaviors. This included bullying, taking drugs, destroying company property, lying about hours worked. Also sexual harassment, driving company vehicles under the influence and multiple instances of workplace abandonment, amongst other misdeeds.

In August 2021, Concrete Sleepers had issued a verbal warning to Mr Reynolds, but his misbehavior continued. On 3 November, he was brought into a meeting with his managers. They then advised Mr Reynolds to take three weeks annual leave as an alternative to dismissing him. He was told to take the leave to “better set yourself straight mentally rather than give you an immediate notice of termination.”

The employee is dismissed after a fiery physical confrontation

Despite agreeing to take three weeks leave, Mr Reynolds turned up to the Concrete Sleepers factory on 5 November. Initially, his presence didn’t cause any disturbance. While seated in his car, Mr Reynolds spoke amicably with a Production Manager. But that all changed when Concrete Sleepers CEO Ryan Staples approached, at which point Mr Reynolds started his engine.

The CEO asked Mr Reynolds why he was at work, to which the latter replied that he was leaving, as there was no work available. But as Mr Reynolds tried to leave, Mr Staples insisted that he stay so he could take a drug test. Mr Reynolds refused to take the drug test and tried to leave the site in his car. But as he was doing so, Mr Staples drove his car across the driveway to prevent his employee from leaving.

It was at this point that things got ugly. Both men got out of their vehicles. Then Mr Reynolds stormed over to his boss, before grabbing him by the throat. While attempting to push him up against a timber wall, Mr Reynolds said, “See I’ve still got you with one f**ken hand”. The Production Manager subsequently raced in and attempted to restrain Mr Reynolds, and later called the police.

Outplacement-consultant-dismissing-an-employee
Outplacement consultant dismissing an employee. When the employee starts to ask the hard questions challenging the reasons for dismissal. She simply doesn’t have the answers

The employee is told he is dismissed by the police

When the police arrived, they questioned Mr Staples and then Mr Reynolds separately. The police escorted the latter to the entrance of the factory. One of the police officers then passed on a message to Mr Reynolds that Concrete Sleepers would later claim amounted to a dismissal. “Your boss has asked you to leave the premises immediately. Tto collect your personal belongings and you are not to return,” said the officer. “We will escort you to collect your belongings.”

Later, as Mr Reynolds passed by the Production Manager and another colleague, he said “Well that’s that isn’t it. There’s no coming back from that!” The Production Manager replied, “Good luck.” 

The factory worker receives a written dismissal a few days later

Three days later on November 8, Mr Reynolds returned to the factory with his wife and presented a certificate of capacity to Mr Staples. What his employer did next would have a huge bearing on this case. That evening, Concrete Sleepers emailed Mr Reynolds his Notice of Termination. In it, the company stated that his returning to work on 5 November caused a serious disturbance to employees.

“Your arrival and presence at the workplace resulted in causing panic amongst our staff members to the extent that 90% of our workforce had to leave for their own safety out of fear and some of them out of anger resulting from your actions,” Concrete Sleepers said in the termination email.

“Your disruptive menace, verbal and physical attacks have impacted greatly on my business; therefore I wish to advise that you are now officially terminated from Concrete Sleepers Victoria Pty Ltd, effective immediately.”

The employee lodges a general protections dismissal with the FWC

With general protections dismissal claims, an employee must submit their application to the FWC within 21 days. The date on which Mr Reynolds lodged his application – 29 November – is at the crux of this case.

Concrete Sleepers claimed that Mr Reynolds was dismissed on November 5, when he was told by the police to “collect your personal belongings” and “not to return” to the factory. If this was true, Mr Reynolds would have submitted his application three days late, invalidating his general protections claim. Mr Reynolds, however, claimed that he was in fact dismissed on November 8, when he received his Notice of Termination.

Workplace-disputes-should-not-get-to- this-stage.
Workplace disputes should not get to this stage. Something has to give way, somebody will be sacked, somebody will be dismissed

On which date was the employee dismissed? The FWC delivers its ruling.

During the Fair work hearing, Deputy President Bryce Cross rejected Concrete Sleepers’ claim that Mr Reynolds had been dismissed on November 5.

“I reject [Concrete Sleepers’] submission that the [Mr Reynolds] should have divined his dismissal on 5 November 2021 from the circumstances identified,” said Deputy President Cross.

This judgement stemmed from several factors. Deputy President Cross found that Mr Reynolds had been involved in some “volatile events” that had previously not resulted in his dismissal”. And he asserted that while the incident on 5 November involved an escalation of volatility, it didn’t mean Mr Reynolds “would understand he was dismissed.”

“I do not accept the proposition that an employer can delegate the task of advising an employee he is dismissed to the police,” continued Deputy President Cross, adding that the Production Manager also “made no comments consistent with advising [Mr Reynolds] he was dismissed.”

The Deputy President also held that the Notice of Termination emailed to Mr Reynolds three days later “clearly stated the dismissal is official ‘now’ and ‘effective immediately.’” He ruled that it provided “no basis” for a finding that it was written confirmation of an earlier dismissal.

An employee must be informed of their dismissal in writing

This case teaches us that no matter how bad an employee’s behaviour, an employer can’t assume that they know they’ve been dismissed for it. Also, the employer can’t delegate the task of informing the employee of their dismissal to any third party. No matter if it’s the police, a union representative or a family member of the employee.

An employer must always follow proper protocol when dismissing an employee. The FWC states that an employer must provide an employee with written notice on the day of termination when ending their employment. The written notice must either be delivered to the employee in person, by leaving it at or sending it by pre-paid post to their last known address. Or if the employee consents, sending it electronically via email or text message.

dismissed-get-help-before-it-is-to-late
Get help before its too late. Its not a battle of wills, not who can win the fight. Its about income, reputation, proving for your family, paying your bills.

Dismissing a employee can it be outsourced? Have you been mistreated by your employer?

Employers sometimes want the glory, the big bucks, then don’t want to do the dirty work. Everybody is entitled to a fair go, procedural fairness. If your employer hasn’t followed proper protocol in issuing your Notice of Termination or Dismissal. Or if you feel that you’ve been unfairly dismissed, call us immediately.

A Whole New Approach can help. For the last 20 years, our team of employment experts have assisted thousands of people like you to successfully gain compensation from the FWC. We are proud of our staff and the outcomes they gain for our clients. Probation period issues, workers rights, abandonment of employment

Call us on 1800 333 666 for a free, confidential discussion to discover how we can simplify the process of gaining compensation for you.

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Redundancies may soon be on the rise. What are your rights?

Redundancies-may-soon-be-on-the- rise.-What-are-your-rights?
Employees being made redundant. Selection process, is the selection process genuine or its dodgy. If not genuine it is unfair dismissal?

Redundancies may soon be on the rise. What are your rights?

If you can, you always look ahead. So your not ambushed by employers, politician’s, bank managers, is always a good thing if the going starts to get a bit tough. Questions to ask How to tell if your redundancy is genuine, With a recession looming, will redundancies increase?, Redundancies may soon be on the rise. What are your rights?, This article is how to ensure your redundancy is genuine. Protect your rights, know where you stand before it is to late.

Redundancies may become more common in the next few years as the Australian economy heads toward a likely downturn. Of course, many redundancies will be genuine. However, some unscrupulous employers may use a faltering economy as an excuse to cull staff for reasons unrelated to financial survival. So, how can you tell if a redundancy is genuine or not?

Here’s why we may soon see an increase in redundancies

The Australian economy, like that of many nations, has in recent years experienced a rapid rise in inflation. In the year preceding March 2021, the Consumer Price Index hit a 20-year high, rising 5.1%. This saw the Reserve Bank of Australia raise interest rates by 25 basis points from 0.10 percent to 0.35 percent in May – the first rate hike in more than 11 years. And economists are predicting further rate hikes throughout 2022.

Recession is likely, however wages are still rising

These economic headwinds suggest that the Australian economy could soon experience a downturn. In fact, some are predicting that the economy could potentially be in recession by 2024. At the same time, however, wage growth has in recent years been steadily increasing. Wages grew by 2.4% over the year to March quarter 2022, with the annual rate of growth rising in each of the last five quarters, from a low point of 1.4% in December quarter 2020.

What all this means is that an economic downturn, combined with continued wage growth, will likely see an Australian labor market where redundancies are increasingly common. Employers will be looking to cut costs to offset diminishing profits. And for many, making staff redundant will be an easy way to do just that.

Redundancies-may-soon-be-on-the-rise.-What-are-your-rights?
Redundant, dismissed and out the door you go

It’s critical to understand the law regarding redundancies

In uncertain times, it’s often hard to predict if you yourself will be safe from a redundancy. It can happen to anyone, out of the blue. That’s why it’s critical to understand your rights when it comes to being made redundant. Also, to be aware of the legal obligations of your employer.

After all, some unscrupulous employers may take advantage of the economic downturn, using it as an excuse to make staff redundant. That’s why all Australian organisations are bound by the obligations of the Fair Work Act 2009. It provides protections to help ensure that when employees are considered surplus to requirements, it’s done for genuine reasons.

What is a genuine redundancy?

Fair Work states (section 389) that an employee has experienced a genuine redundancy if it contains the following three elements. Firstly, that there is no longer any requirement for their job to be done by anyone. This could be because of a business restructuring, the position being relocated interstate or overseas, or if a business decides to close, among other reasons.

Secondly, the employer must consult the employee about the redundancy. This must be done in accordance with the requirements of the relevant award or enterprise agreement. The need to consult the employee, however, is only required if the award or enterprise agreement contains the requirement to do so. Most, however, do outline this obligation.

The third element of a genuine redundancy is that it wasn’t reasonable for the employee to be redeployed within the employer’s business or an associated entity of the business. If the employer failed to consult the employee of their redundancy, then it’s likely that they didn’t attempt to redeploy the employee.

How can you tell if a redundancy isn’t genuine?

Fair Work outlines several tell-tale signs of when a redundancy isn’t genuine. This includes if the redundant employee’s position is later back filled by someone else. Also, if the employer didn’t consult the employee about their redundancy, if required by the award or enterprise agreement. And, if the employer didn’t attempt to redeploy the employee.

It should be noted that an employer has the right to run their business as they wish, therefore it’s their decision who they make redundant. However, an employer can’t make an employee redundant for a reason prohibited by the Fair Work Act, as well as state or federal anti-discrimination laws. This includes, for instance, making an employee redundant because they have fallen pregnant or because they have made a complaint about their employer. (This you can pursue as general protections claim).

Sacked,-made-redundant,-unfair,-genuine-or-not-it-is-tough-on-older- employees
Sacked, made redundant, unfair, genuine or not it is tough on older employees

Not all genuine redundancies are good, however

Just because a redundancy meets all the criteria of being genuine, it doesn’t necessarily mean it was a good decision. Employers often decide to cut the wrong employees or too many employees. Specially in uncertain times.

An example of this are Australia’s universities, which were hit hard financially when COVID-19 prevented international students from entering the country. As a result, many universities used the uncertain environment brought about by the pandemic to make significant structural changes. This included making up to 27,000 staff redundant.

“If you want to restructure departments, faculties and courses, you need a narrative,” Frank Larkins, emeritus professor at the University of Melbourne, told the Financial Review this month. “COVID-19 and the uncertainty that came with it gave university leaders that.”

But now with international students allowed back into the country, universities are facing the prospect of being understaffed. And it’s for this reason that Professor Larkins believes the redundancies experienced in the tertiary sector went too far. “As it turns out, some universities probably cut too deep,” he said. “I mean, 66 percent of all the people who lost their jobs were casuals and that has a pretty deep impact.”

When the Fair Work Commission decides a redundancy isn’t genuine

Universities, of course, weren’t the only organisations to use COVID-19 as a reason – genuinely or otherwise – to cut staff and costs. An unfair dismissal case decided by Fair Work in 2020 helps shed light on the obligations employers must satisfy to ensure a redundancy is genuine.

The case – Rachael Freebairn v Dandiie Pty Ltd – involves an administration assistant, Rachael Freebairn, who was made redundant by NSW-based TJL Business Advisors & Accountants. The company had experienced a significant downturn in revenue as a result of COVID-19, so it needed to slash costs. And the administration was the first on the chopping block.

The admin assistant is given scant information about her redundancy

In March 2020, the partners of TJL decided that the hours of the administration team would be reduced. A meeting was held with Ms Freebairn and a colleague, in which they were informed of the impact COVID-19 was having on the business.

Ms Freebairn was told that she would be financially better off if she didn’t keep her job at TJL and instead went on JobSeeker. She was issued with a dismissal letter and separation certificate, which were the only two written notices she was provided during her redundancy process. Ms Freebairn was then then asked if she had any questions. She said no, and her employment was terminated. This meeting lasted no longer than 15 minutes.

Redundant-meeting-ends-in-complete- confusion
Redundant meeting ends in complete confusion. It can end in tears when the employee has done nothing wrong.

The admin assistant challenges her redundancy at the Fair Work Commission

As an administration assistant, Ms Freebairn was covered by the Clerks – Private Sector Award 2020. Under the award, an employer has a duty to consult with employees if they are affected by a major workplace change like a redundancy. During this consultation, they must:  

  • Give notice of the changes to all employees who may be affected by them
  • Discuss the changes with affected employees. This includes the introduction of the changes, their likely effect on employees and measures to avoid or reduce the adverse effects of the changes
  • Provide in writing all relevant information about the changes to employees and their representatives. This includes their nature, expected effect on employees and any other matters likely to affect employees.
  • Promptly consider any matters raised by the employees about the changes 

Fair Work found that TJL failed to meet the consultation obligations required by the Clerks Award. It therefore ruled that Ms Freebairn’s dismissal was unfair and not a genuine redundancy.  

“This obligation is not met by merely asking employees whether they have any questions, comments or suggestions,” said Fair Work Commission Deputy President Tony Saunders.

“Nor is it met by informing an employee, as happened in this case, that the employee will be marginally better off financially by being dismissed and in receipt of JobSeeker payments than by remaining in employment on reduced hours

DP Saunders

Conclusion to Redundancies may soon be on the rise. What are your rights?

Now-redundant,-looking-for-a-new-job.-Don't-dwell-in-the-past.
Now redundant, looking for a new job. Don’t dwell in the past.

Redundancies (and it is no coincidence) seem to effect the following groups in disproportionate numbers

  1. employees on workcover
  2. made redundant the day returning from workcover injury
  3. pregnant women
  4. older employees
  5. higher paid employees
  6. employees who complain / excise their rights
  7. working mothers
  8. victims of on going domestic violence.

This is sample list of the clients we represent of non genuine redundancies. You get the picture.

If your redundancy wasn’t genuine, we can help

For over 20 years, A Whole New Approach has helped Australian workers fight for their workplace rights. If you feel that your employer didn’t follow the right steps when making you redundant, you could be eligible for a unfair dismissal or general protections claim. Be aware of the strict 21days to lodge a claim for compensation or reinstatement. (1 year to lodge a discrimination claim). Want to sue your employer? sacked for other reasons? probation period issues, workplace investigations, give us a call.

Call us today on 1800 333 666 for a free initial consultation to see if you’re eligible for an unfair dismissal application.

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