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March 2, 2021
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Serious Misconduct in 2021 Workplaces

The term ‘serious misconduct’ is something that is thrown around by employers way too much in the employment sphere. You may have heard it during a dismissal or when your employer is threatening your employment. ‘Serious misconduct’ is actually a legal term that will allow for employers to terminate you on that basis and bar you from receiving your normal entitlements when you exit your employment. For example, when you are correctly dismissed for serious misconduct, you will be stripped from your entitlements to annual leave, long service leave, notice period and in the case a company is going through a downsizing or restructuring, any redundancy pay you might have been owed but for the alleged serious misconduct. In many cases this can be allot of money.

However, since employers know that they can significantly reduce the costs of having to terminate your employment by saying that it was for ‘serious misconduct’, they may wrongfully do this and unlawfully strip you of your rightful entitlements. Employers, especially in tough periods and situations, will rely on this method to drive their wages down and reduce payroll to save them some money. This is particularly relevant with the economy in recession at the moment, caused by the COVID 19 situation. Many employers are turning performance related situations into serious misconduct scenario’s, to avoid the proper payouts. At the moment one of the major words searched on our web site relates to situations around serious misconduct. Its actually quite disturbing. Employees are getting now dismissed for issues employers couldn’t have careless about or maybe told don’t do that again.

Thus, it is very important for you to know and determine whether your dismissal was likely for ‘serious misconduct’ or for mere misconduct. Now you understand there is a crucial difference. The Fair Work Commission decisions are very clear on the very high bar employers must meet to satisfy ‘serious misconduct’ of an employee. Some examples are provided, but are not limited to these:

  • Theft
  • Physical or verbal assault
  • Fraud
  • Intoxication or illicit substance abuse at work
  • Blatant disrespect for lawful and reasonable orders.

This is definitely not an exhaustive list but it could give you some flavor on whether your misconduct is more similar to a regular mishap in the workplace or something more onerous against the employer.

Call us at 1800 333 666 to receive a free consultation on whether we think your dismissal may not have been for ‘serious misconduct’, or is fair or unfair.

Workplace & Unfair Dismissal News, Unfair Dismissal Australia
February 19, 2021
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How to Negotiate With Your Employer

Everyone negotiates. 

When there is more than one person involved, actions are almost always preceded by negotiations, whether that’s with friends, family or colleagues, your managers, human resources. The question isn’t whether you negotiate, but how well do you negotiate?

Everyone Has to Negotiate, What You May Ask

Pay rises, terms and conditions of employment, dismissals, resignations, relocations, promotions, holidays, warnings, the list is endless

Negotiation is critical for any group venture or project, be it a company outing or an email campaign, but in the workplace your ability to negotiate is equal to your success and happiness on the job. It’s a skill and an art, involving some practical tips and methodologies, but also a great deal of psychological insight.

Negotiation skills aren’t only a benefit for you; they serve the whole organization. Poor negotiations or a lack of negotiating skills can impact the bottom line and ruin customer relationships. So, if you’re interested how to negotiate, start by learning these skills and the tactics. They’ll come in handy the next time you broker a compromise at work..

Negotiation Skills

Having the right set of skills will help you in any endeavour, and the same is true with negotiating. If you are armed with the following skill sets, then negotiating will be more fruitful.

Be Prepared

Never go into a negotiation blind. Without context, no level of negotiation skills will help you. Therefore, know the product, service or whatever the subject of the negotiation may be.

You want to have prepared yourself by understanding not only what you’ll be negotiating, but who you’ll be negotiating with and what kind of person they are. Create a task list of items to research before entering the negotiation, so you’ll have everything covered. That way you’ll know how to present a compromise that will appeal to the other person.

Listen

Often, when negotiating, emotions can take over and one can find themselves talking over the other person. That sort of aggressive approach is sure to backfire, or at least keep the negotiation heated. In many cases gives the employer an excuse to terminate you. No one wins in that sort of exchange, and a lot of time will be wasted because of miscommunication.

Instead, try active listening, where you hear not only what the person is saying but how they’re saying it, including their body language. By listening intently you’ll learn more than by getting into a shouting match.

Be Dispassionate

Emotional outbursts might feel good at the time, but what they do is show the other party that you’re no longer in control. This gives them an advantage, because if you give into frustration or other heated emotions, you’ll be more likely to concede something that you don’t want to or, worse, disrupt the whole negotiating process.

Communicate

Naturally, one of the most important skills for negotiating is being a strong communicator. You must get your message across clearly and effectively. Make notes for your meeting, stay focused, what your there for. Poor communications lead to misunderstandings and potentially unresolved conflicts, which help neither side.

Collaboration

Collaboration skills help because negotiations aren’t necessarily an “us versus them” scenario. Most negotiations are really a type of collaboration where two parties with differing views meet and together find a way to mutual satisfaction. By working together, negotiations are less combative, and there will be no hard feelings when they’re over because everyone wins.

Be a Decision-Maker

Negotiations end. There comes a point where both sides have given in some ground and are standing on a shared space that is mutually agreeable. It’s at that time one must decide to accept the deal, but some people just can’t. They’re either indecisive or delusional, thinking they might be able to eek out one more concession. The skill of deciding when to stop is key to successfully closing negotiations.

Negotiation Tactics

Having the skills to negotiate is only the beginning. Now comes the act of negotiating where you must put those skills to work. Here are some tactics to employ.

Don’t Think in Terms of Winning

If you walk into a negotiation with the attitude that you’re going to win, then you have already failed. This isn’t about competing. It shouldn’t be adversarial. Instead, you should go into a negotiation with a clear picture of what your goals and objectives are. Remember, it’s a collaboration. You’re not beating someone, you’re working with them for the best possible solution to both your interests.

Think of the Other Person

Empathy is fine, but really what this tactic does is address the give-and-take of any negotiation. If you can help the other person, if you’re aware of what they need, what their goals and objectives are, then you know what to put on the table. Even if you don’t know what they want, you can always ask. It can help cut to the chase and is sure to win points with the other person, which can foster the collaborative atmosphere present in all successful negotiations.

Don’t Assume, Clarify

Chances are both parties are walking into a negotiation with a lot of preconceived ideas of what the other wants. But there’s no guarantee that either side is privy to the other’s motivation or problems. Therefore, it’s always helpful to start the negotiations on the same page by asking the other party what their motivation is.

Find out how they view the negotiation at the outset, and clarify yours as well. This creates transparency for the proceeding and allows the negotiations to start from a point of understanding, which cuts out a lot of unnecessary clutter and lets you get right down to business.

Don’t Make Threats

This speaks to the dispassionate attitude that all positive negotiations share. If you let emotions rule your negotiations, then you’re more likely to threaten to walk out or issue an ultimatum that will break down the discussion. Stay professional. Remember you’re in the workplace, and you must work with these people. Burning bridges will just leave you stranded.

Workplace negotiations can get heated, but no side is served by letting that pot boil over. The worst thing anyone can do in a negotiation is paint themselves in a corner by threatening this, that or the other. It’s just self-destructive, and negotiations are supposed to be constructive. Stay focused on the big picture, usually that’s keeping your job, or getting that payout, stay focused, don’t be misled by a clever employer that “baits” you to react the wrong way, so they achieve their goals.

What You Need To Remember

1. Be clear about the issue.

2. Know your objective.

3. Adopt a mindset of inquiry.

4. Manage the emotions.

5. Be comfortable with silence.

6. Preserve the relationship.

7. Be consistent.

8. Develop your conflict resolution skills.

9. Watch your reaction to thwarting ploys.
In a Harvard Business Review article, Sarah Green lists nine common mistakes we make when we conduct a difficult conversation. One of these mistakes is how we handle thwarting ploys, such as stonewalling, sarcasm and accusing. The best advice is to simply address the ploy openly and sincerely. As the author says, if the ploy from your counterpart is stubborn unresponsiveness, you can candidly say, “I don’t know how to interpret your silence.” Disarm the ploy by labeling the observed behavior.

10. Choose the right place to have the conversation.

11. Know how to begin.
Being upfront is the authentic and respectful approach. You don’t want to ambush people by surprising them about the nature of the “chat.” Make sure your tone of voice signals discussion and not inquisition, exploration and not punishment.

Help is on its way, give us a call, get some free advice, we can negotiate for you. Remember a little bit of knowledge can be power, but a little bit of knowledge can be dangerous.

February 18, 2021
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What is the Difference Between the Fair Work Commission and Fair Work Ombudsman?


The specific functions of the Fair Work Commission include:

Judging disputes, complaints in the workplace, (including unfair dismissal, general protection applications and anti bullying applications),
Maintaining the minimum employment standards including wages and employee rights
Reviewing and changing awards and agreements
Various other functions related to the workplace.
The Fair Work Commission also has a free call service to provide basic and general information on the Fair Work Act 2009, but they cannot provide legal advice.

Therefore, it is more appropriate for employees, employers, contractors and any other relevant parties that believe they have workplace liabilities or responsibilities, to call the Fair Work Ombudsman for free advice and information.

The Fair Work Ombudsman also conducts investigations. Basically they enforce the underpayment of award wages and disputes around this For most of our clients, we recommend that employees who believe that they have been underpaid go to the Fair Work Ombudsman to enquire into what they should have been paid and request an investigation if they have indeed been underpaid.

Many employees get confused and try and lodge a unfair dismissal application with the Fair work Ombudsman, when it should be with the Commission, being a strictly enforced 21 days to lodge a claim then find them selves out side this timeline and have the serious risk of having their claim denied. Some employees lodge a unfair dismissal claim because they have not been paid there redundancy pay and its unfair, then end with having to pay the Employers legal cost because their in the wrong place.

Not sure, get advice from us, its free, its through, equally The Fair work Commission and the Fair work Ombudsman have enquiry lines, and are are helpful people.

February 18, 2021
by

Serious Misconduct In The Workplace


The term ‘serious misconduct’ is something that is thrown around by employers way too much in the employment sphere.

You may have heard it during a termination or when your employer is threatening your employment. ‘Serious misconduct’ is actually a legal term that will allow for employers to terminate /dismiss you on that basis and bar you from receiving your normal entitlements when you exit your employment. For example, when you are correctly dismissed for serious misconduct, you will be stripped from your entitlements to annual leave, long service leave, notice period and in the case a company is going through a downsizing or restricting, any redundancy pay you might have been owed but for the alleged serious misconduct.

However, since employers know that they can significantly reduce the costs of having to terminate your employment by saying that it was for ‘serious misconduct’, they may wrongfully do this and unlawfully strip you of your rightful entitlements. Employers, especially in tough periods and situations, will rely on this method to drive their wages down and reduce payroll to save them some money.

Thus, it is very important for you to know and determine whether your dismissal was likely for ‘serious misconduct’ or for mere misconduct.

Now you understand there is a crucial difference. The Fair Work Commission decisions are very clear on the very high bar employers must meet to satisfy ‘serious misconduct’ of an employee. Some examples are provided, but are not limited to these:

– Theft
– Physical or verbal assault
– Fraud
– Intoxication or illicit substance abuse at work
– Blatant disrespect for lawful and reasonable orders.

This is definitely not an exhaustive list but it could give you some flavor on whether your misconduct is more similar to a regular mishap in the workplace or something more onerous against the employer.

The reason for this blog, is the extraordinary amount of employees who now search this word / phase on our advertising campaigns. In these tough economic times times some employers will resort to whatever it takes to reducing cost, avoiding redundancy etc as already mentioned. Serious misconduct is certainly a career impediment, or an inhibitor to getting another job, this need to be corrected.

Call us at 1800 333 666 to receive a free consultation on whether we think your dismissal or pending dismissal may not have been or will be for ‘serious misconduct’.

Workplace & Unfair Dismissal News, Unfair Dismissal Australia
January 26, 2021
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Test Case looms on mandatory vaccinations for employees, will this lead to increased dismissals?


A current case being observed by employers considering mandatory coronavirus vaccinations, the Fair Work Commission (FWC) will probe whether Ozcare in Brisbane South, unfairly sacked a long-serving care assistant who refused a compulsory flu shot on the basis of allergy, while the Commission also weighed-in on the contentious issue of enforced jabs for Santas. Commissioner J Hunt has cleared the way for the part-time care assistant to pursue her unfair dismissal claim after rejecting Ozcare Brisbane South’s jurisdictional argument that it simply placed her on unpaid leave.


The carer – who provides in-home care and does not work in a residential aged care facility – has successfully declined flu vaccinations at Ozcare Brisbane South’s on allergy grounds for over 10 years, as she suffered anaphylaxis straight after receiving one at age seven in the Philippines. However, in April last year, Ozcare Brisbane South informed the assistant that due to COVID-19, it was making the vaccinations mandatory for all employees in its residential aged care facilities and its community care services with direct client contact. Referring to Queensland Chief Health Officer Dr Jeannette Young’s now-revoked directions that workers could no longer enter residential aged care facilities unless they had an influenza vaccination, Ozcare Brisbane South said yearly immunisations are now a crucial condition of the carer’s role. The Queensland public health order outlined that vaccination was required if “available” and provided an example that it was “not available to the person with the medical contraindication to the influenza vaccine”.

Medical certificate seeks flu season leave
As the carer declined the vaccination, Ozcare said it could no longer roster her on or let her enter its premises, including after the lifting of the public health directive.
It said she could access personal or other accrued leave to cover her absence while “unfit to attend work” but said it was “unable to advise how long that will be for”.
When her annual and long service leave ran out on October 4, Ozcare said it would be unable to offer shifts. But it said this did not constitute dismissal, as she would be on unpaid leave. The carer provided Ozcare with a medical certificate stating she could not be vaccinated “as she had anaphylaxis with Flu shot in childhood” and she was not to attend work until after September when “flu infection time” passed. Commissioner J Hunt also accepted that she genuinely believed a vaccination would risk her life, despite failing to obtain any confirmation that her beliefs are medically supported and refusing to see a specialist about it.

Employment ended when leave exhausted
Commissioner J Hunt found it an “entirely unsatisfactory proposition” that Ozcare intended to place the assistant on unpaid leave indefinitely as it continued to review her status.


She said the carer could be “held in limbo for months and years”.
“The effluxion of time would have little impact on [Ozcare], yet if [the Assistant] could not demonstrate that she has been dismissed until such time as [Ozcare] declares for itself that she has been dismissed, the effects on her are enormous”. But she held that Ozcare’s judgment to enforce a new requirement, that unvaccinated employees cannot work, in fact, meant the carer’s employment was terminated on October 4, when she exhausted accrued leave and it refused to roster her.


“It is clear that [the assistant] no longer can meet what [Ozcare] states is the inherent requirements of the position”, Commissioner J Hunt said. “She refuses to do, and [Ozcare] refuses to relax them for her therefore the impasse has not been met due to the actions of [Ozcare] and the employment has come to an end”.

Important to consider individual circumstances
In conclusion, whether the carer can therefore pursue her claim for unfair dismissal, Commissioner J Hunt said the proceeding would not be “an inquiry as to whether she is likely to refuse any future COVID-19 vaccination”. Instead, the case would involve “largely a consideration as to whether [Ozcare’s] decision to make an influenza vaccination an inherent requirement of the job is lawful and reasonable having particular regard to her care of vulnerable clients in their home”.


Commissioner J Hunt said there was much discussion around the lawfulness of requiring employees to be vaccinated against influenza “in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19”.
“It is, of course, a very concerning proposition, and medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual,” she said.

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction”.
“Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector”.
Commissioner J Hunt said she expected the case to consist of evidence of clients’ vulnerabilities, the effect of wearing full PPE, advancements in vaccinations between 1963 and 2020, and the carer’s refusal to seek specialist medical opinion.


The Santa Clause: Compulsory jabs for St Nick?
Commissioner J Hunt noted the potential of “men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influence, and if a vaccination for COVID-19 is available, that too”. “The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job,” she said.
While a court or tribunal might be “tasked with determining whether the employer’s direction is lawful and reasonable”, she said in the “court of public opinion, it may not be an unreasonable requirement” and might “in fact, be an expectation of a large proportion of the community”.

As 2021 unwinds, and the vacations become more available, employees will have to make a choice, balancing up the employers requirements and their beliefs and medical needs. 1800 333 666

January 18, 2021
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CAN YOU BE DISMISSED FOR STORMING PARLIAMENT HOUSE?


In January this year, Australians watched on, as Americans stormed the U.S. Capitol. As a result of the recent riots in Washington, certain employers have gone on to dismiss their employees for attending and being involved. [1] Its worth noting the USA does not have the unfair dismissal laws that we have here, but do have discrimination laws. The questions that needs to be asked are whether this is fair? And whether you are protected from dismissal in Australia for such a reason? Are Employers casting a moral view / decision versus a soundly based legal decision? Will this happen here?

In Australia, there is a common assumption that we have freedom of speech. This is not the case at all. The Australian constitution offers very few individual protections for its people. There is an implied right to freedom of political communication, however it does not protect an employee’s expression of political beliefs and thoughts. [2]

However, Australian law does provide protection to employees regarding political opinion. Under Section 351(1) of the Fair Work Act 2009 legislates that it is unlawful for an employer to discriminate and consequently terminate employment on certain grounds, one of these being a person’s political opinions and beliefs. However, there is one exception to this ground of discrimination, violence exercised on the basis of political opinion is not safeguarded by the Act as Australia is part of the labor standards agreement outlined by the International Labor Organization (a United Nations body). [3]

Many employers didn’t have to look far for evidence, with the employees posting images on Instagram and Facebook declaring their attendance at the riot. Many relatives and friends of the so called protectors have reported to the authorities who the protectors are. Amongst the terminated were lawyers, professors and real estate agents. [4] It wasn’t just lower ranked employees in the U.S who were terminated for storming the Capitol, CEOs from major data companies have also been dismissed. [5] Hence, there is a broader issue underlying all of this.

I’m writing this article to pose: Are our choices and actions in our private sphere, up for scrutiny by our employer to the extent of dismissal?

The test for serious misconduct is whether on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. [6] Out of hours conduct is a separate issue. An employer only has the right to extend any supervision over the private activities of the company in exceptional circumstances, where the conduct must have a relevant link to the company. [7]

Rose v Telstra is a pivotal case ,which recognized three categories of behavior that may comprise of out of hours misconduct. [8]
– 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
– The conduct is incompatible with the employee’s duty as an employee

This case involved a Telstra communications officer, who had an altercation with another employee while posted on work in another location. In this case, the company found out about the fight through a medical certificate provided to the company by a doctor. Rose was suspended without pay and later found guilty of improper conduct, which resulted in dismissal. No disciplinary action was taken against the other employee. [9]

For each of the three categories outlined in Rose v Telstra, there needs to be material evidence to demonstrate that the behavior of the employee has had an impact on the employer.

So you are entitled to protest and voice your opinions, however, this is limited to protest. The destruction of property and illegal activity is criminal, however, once again this is an interesting point of the law, because HEF of Australia v Western Hospital, found that out of hours conduct resulting criminal offences does not alone, suffice for dismissal. [10]

In this case, a police officer informed the hospital (the employer) that a number of employees were part of a gang and that their homes would be raided and they would subsequently be charged. The hospital dismissed the employees by stating that their behavior constituted serious and willful misconduct. However, as the police had not officially laid charges, it was found that the hospital did not have enough information at the time of dismissal and did not investigate the conduct themselves.

What about social media?

Well let’s say the out of hours conduct occurs digitally, you’ve made a Facebook post about a co-worker or the employer, putting the company into disrepute? This would amount to dismissal because there is a clear link. However, if you were to put up a post supporting a political view or belief, you cannot be dismissed unless there is a relevant link to the relationship you have with your employer and has impacted the employer’s interests.

As explained in Byrne v Australian Airlines, there has been a shift in law regarding the relationship of employment. [11] The “shift from status (master and servant) to that of contract (employer and employee)” has meant that in Australia, employers can only terminate employment for out of hours conduct if they can prove that the conduct of the employee has a direct impact or link to the employment. If this cannot be satisfied then the dismissal is unlawful.

Therefore, you can be dismissed for storming parliament house if it is a politically motivated act of violence as you will not be protected under the Fair Work Act. If there is no violence, but there is a relevant link that impairs your relationship with the employer, then you can also be lawfully dismissed.

Before the internet and social media, what you got up to on weekends or in holidays seemed / considered to be your business, now its out there for all to see. Whether that’s for good or bad is in the eyes of the beholder. There is no doubt good jobs are hard to get, employees should think twice before they possibly put it at risk. Principles and ideals are a great thing, beware what you might have to pay for them.

[1] Elizabeth C. Tippett, ‘Fired for Storming the Capitol? Why most workers aren’t protected for what they do on their own time’, The Conversation, (online, 6 January 2021) <https://theconversation.com/fired-for-storming-the-capitol-why-most-workers-arent-protected-for-what-they-do-on-their-own-time-152963>

[2] Dan Trindade & Matt Condello, ‘The implied freedom of political communication does not help an employee who disagrees with their employer’s policies’, Clayton UTZ, (online, 28 September 2017) <https://www.claytonutz.com/knowledge/2017/september/the-implied-freedom-of-political-communication-does-not-help-an-employee-who-disagrees-with-their-employers-policies>

[3] Fair Work Commission (2018), <https://www.fwc.gov.au/general-protections-benchbook/other-protections/discrimination/political-opinion>

[4] Kate Duffy, ‘CEOs are firing employees who stormed the US Capitol after seeing theirphotos and videos on social media’, Business Insider Australia, (online, 9 January 2021) <https://www.businessinsider.com.au/ceo-fire-employees-storm-us-capitol-after-social-media-posts-2021-1?r=US&IR=T>

[5] Elizabeth C. Tippett, ‘Fired for Storming the Capitol? Why most workers aren’t protected for what they do on their own time’, The Conversation, (online, 6 January 2021) <https://theconversation.com/fired-for-storming-the-capitol-why-most-workers-arent-protected-for-what-they-do-on-their-own-time-152963>

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

[7]  Appellant v Respondent, Print R1221 (1999) 89 IR 407

[8] Fair Work Commission (2018) <https://www.fwc.gov.au/unfair-dismissals-benchbook/what-makes-dismissal-unfair/valid-reason/conduct#ftnref25>

[9]Rose v Telstra Corporation Limited, Print Q9292 .

[10] HEF of Australia v Western Hospital, (1991) 33 AILR 249.

[11] Byrne V Australian Airlines Ltd [1995] 185 CLR 410 [27].

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