Workplace & Unfair Dismissal News

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

Who is a Casual?

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

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

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

Regular and Systematic

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

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

• “Each occasion a casual employee is engaged is a separate contract of employment. These contracts may be week to week, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement.
• For the purpose of unfair dismissal, it is the period of service rather than the period of employment that is relevant. If the conditions of s.384(2)(a) are satisfied, then a period of service by a casual employee will count towards the period of continuous service.
• Once continuous service is established, the employer or employee may only break continuous service by making it clear to the other party that there will be no further engagements.
• For casual employees it is possible that some periods of service will meet the conditions of s.384(2)(a) and others will not.
• Absence for illness or injury does not break a period of continuous service.”[4]

The final aspect of whether a casual is to be considered eligible for an unfair dismissal is through the concept of “reasonable expectation of continuing employment. This is dependent on an individual’s circumstances, and is primarily an unsettled area of law. In Tilbrook v Willall Industries Pty Ltd,  a casual was employed for 2 years and 8 months.[5] During this period of time, the casual had an 11 week period of unavailability. This was deemed by the courts as an interruption to the continuous service. However, they also found that the casual employment since that time, which had weeks without work for the employee, and this was held to be regular and systematic, as there was a reasonable expectation for the employee to have continued employment.

Let’s assume you have been terminated, what are your options?

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

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

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

General Protections claim

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

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

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

If you feel that you have been dismissed because you are no longer receiving shifts from your employer,

give us a ring on 1800 333 666 to discuss further. 

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

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

[3] [2010] FWAFB 5709

[4] Ibid.

[5] [2011] FWA 6300

[6] [2019] FWC 4877

Apologizing in any situation can be awkward but it may feel even more awkward in an employment setting. Employees often feel obliged to apologize to their employers if they have done the wrong thing but should employers be held to this same standard? Should employers apologize to their employees for their own wrongdoings?

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

Apologies and Admission of Liability

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

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

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

Apologizing in Employment Law Settlements

In many employment cases, an apology can play a major part in the settlement of a case. Almost invariably in such cases, the applicant or complainant believe that s/he is entitled to an apology because of misconduct of some kind by the employer. Termination of employment is a stressful event, even when it is anticipated and/or warranted.

Whether you deem your dismissal unfair, possibly discriminatory or otherwise unlawful, the disruption, embarrassment, and injured self-esteem that result from employment dismissal, produce anger that may stand in the way of settlement. An applicant or complainant may believe that no amount of money would suffice to undo the damage to their self-esteem, or that a settlement must be commercial large enough to punish the employer. On the other hand, an employer made often feel defensive and angry about the allegations of discrimination, unlawful or unfair treatment. Employers are often of the belief that an employee’s termination is justified and the idea of an apology may be repugnant.

In either case, it is difficult to overcome these emotional aspects of employment disputes. Thus, if a dispute is to successfully resolve in the interests of both parties, we must consider ways of overcoming these emotional barriers. This could be through an apology.

Benefits of an Apology

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

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

The main benefit of an apology is that it encourages some moral introspection on the part of the person giving it and requires them to look at their behaviour and how they have treated the other person. Even if they do not admit fault, the very acknowledgement of the other person’s hurt or injury and showing regret that they feel that way, is valuable. This shared acknowledgment can help heal the relationship and create a more positive dynamic. In addition, if the parties involved are going to continue working together, it can set the tone for their relationship in the future. Even if an apology is not the sole resolution on the table, it can ease the path to settlement of the dispute. There can also be a financial benefit as an apology can reduce ongoing animosity which in turn may lessen the time taken to resolve the issue.

Talk to us, if we can assist, if your facing dismissal because your won’t apologize when its not your fault, or you have to apologize is completely over the top, a form of humiliation or your deserve an apology, give us a call, explore your options, it cost nothing to make the call. 1800 333 666

Recent cases (unfair dismissal and general protections) before the Fair Work Commission have explored the notion of “buyer’s remorse” in regards to undoing settlement agreements reached during conciliation.

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

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

When will a deal be undone?

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

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

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

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

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

“Buyer’s remorse” not an excuse to undo unfair dismissal settlement

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

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

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

The Applicant’s representative did not inform the Respondent’s representative of their position. Given the dispute between the parties, the matter was referred to Deputy President Gooley to determine whether there was a binding agreement to settle the unfair dismissal claim and thus, the Commission has the power to dismiss the application as it has no reasonable prospects of success.

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

In Chris AKA Christopher Lawless v Australasian Association of Philosophy,[3] the employee had signed the settlement document and applied to the Fair work Commission to undo his settlement and for a certificate to be issued in order to pursue his general protections claim. The reasons the employee gave as to why the settlement should be undone included that he was suffering from post-traumatic stress disorder; the employer was represented while he was not; he was not properly prepared for the conciliation conference; the Commissioner overseeing the matter had provided misleading information about the cost of taking his matter to the Federal Court and there was insufficient time for him to consider his position.

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

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

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

Key Lessons for Parties

These cases serve as a caution to parties that any in-principle agreement reached during conciliation conferences at the Fair Work Commission (and in other tribunals, commissions or courts), may be held to be binding and they cannot be undone. Nevertheless, it is important to utilise the conciliation conference and address all necessary issues, such as specific terms of settlement which pertain to the agreement. Aforementioned, the parties should discuss the Deed of Release in the conciliation conference and ensure there is an agreement in regards to any non-standard terms that either party may wish to incorporate (i.e. one-sided release, any post-employment obligations or restraints of trade).

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

You should get advice, be professionally represented, your welcome to get free advice from us call 1800 333 666

[1] [2021] FWC 14.

[2] Michael Souter-Robertson v Achieve Corporate Services Pty Ltd as Trustee for Achieve Cleaning Services Trust T/A Achieve Corporate Services [2016] FWC 5166.

[3] [2021] FWC 2832.

Are you having issues at work and no longer want to work for your employer? Are you experiencing difficulties in your employment and don’t know what you can do to fix it? If so, we can help! Read On

Regardless of whether you want to stay or leave your employment, it is important to remember to never resign! Once you resign, the onus is on the employee to prove they were forced to do so and this may be a difficult task. Rather than resigning or suffering in your employment, we can assist employees in lodging disputes against their employers.

Are you experiencing issues in the workplace and are contemplating resigning?

Aforementioned, it is important that you never resign. Once you resign, the onus is on the employee to prove they were forced to do so and this may be a difficult task. Prior to making the decision to resign, it is important to consider disputes and claims you may be eligible to lodge in order to exit your employment with the best possible advantage.

A Form F8C – General Protections Application not involving Dismissal – is an application in which employees can seek a preventative remedy but also possible compensation through an exit package. For more information on what a General Protections claim is, please visit our General Protections page or call us on 1800 333 666.

Ask yourself, are you being bullied at work after making a complaint? Have you made a complaint about something in the workplace and now the employer is treating you less than favourably? Is the employer demoting you after you made a complaint?

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

Through these applications and disputes, we can help clear your name of any allegations that an employer may have brought against you, we can request a transfer to another position within the Company, we can restore a previous positon if you have been demoted and many other similar remedies. If you want to fight for your job, we can help! Please call us on 1800 333 666 and we can assist you in fighting back against your employer.

However, do you feel like the employment relationship has deteriorated beyond repair? Do you want to continue working or would you prefer to leave? If an employee can demonstrate that the employer is acting adversely towards them as a result of them exercising their workplace rights and as a result, does not wish to continue their employment, the employee can see an exit package, by way of resignation, to terminate the employment relationship. If the employee can demonstrate pain and suffering as a result of the workplace bullying, the employee may seek compensation in the form of general damages. If you are unsure about which application to pursue against your employer, please give us a call on 1800 333 666 for a free and confidential consultation.

Still employed and being bullied at work – Anti-Bullying Applications

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

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

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

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

Don’t give up, fight for your job, don’t let some petty employee, or manager or employer derive you of your income and enjoyment in life. You do have rights, its how you excise them is the key, give us a call to discuss, explore your options.

1800 333 666, 7 days a week. all calls confidential

Competent support saves jobs. Do not underestimate the support person Being unsupported is unprotected

You need a support person, here are the reasons why

Employers usually dismiss you with a ‘valid reason’ and they must notify the employee of these reasons. That is why they use disciplinary meetings and investigations to justify their reasons and demonstrate a “fair and just” process.

Many organizations will have a designated employment law expert either an inhouse solicitor or HR representatives masquerading under the disguise of “people and culture” or are a member of a industry association.

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

These crucial words may be the difference between an unsalvageable end to a career or you leaving with your reputation and income intact.

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

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

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

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

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

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

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

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

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

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

Not only do you retain the services of the expert, you also have access to their experience and reputation often being enough to have the employer treat you with the proper respect you deserve. Your welcome to get free advice from us, or we can represent you, remember never resign and there a strict 21 days to lodge a unfair dismissal or general protections claim