Workplace & Unfair Dismissal News

James Ashby, a former political staffer to former speaker Peter Slipper, commenced legal action in 2012 against Mr Slipper by alleging he was sexually harassed and that the politician misused parliamentary entitlements. The original case against Mr Slipper was eventually withdrawn but Mr Ashby sought an ‘act of grace’ payment in 2018 from the Commonwealth to cover his legal expenses amounting to $4,537,000, incurred from the withdrawn case. The request was refused by the delegate of the Finance Minister as it was decided there were no special circumstances in Ashby’s case to warrant the payment.

The Australian court system is designed to protect itself against vexatious litigants – very different to the American system where anyone can litigate freely – meaning that litigants who wish to bring proceedings in a Commonwealth court will carry the burden of the risk of legal costs. Generally, if you lose your case in a Commonwealth court, you will not only have to pay your own lawyers’ fees but the other side’s legal fees also. This is designed to maintain the integrity of Australian courts, to save resources, to save time of esteemed justices and more. 

Mr. Ashby commenced court proceedings by choice, when there were more economical and lower risk options available to him, such as entering into settlement discussions or a lower jurisdiction. ie the Fair Work Commission, NCAT, Administrative Tribunal amongst others Thus, Mr. Ashby took on the risk in relation to costs, which resulted in a fee of $4.5m. Did Mr. Ashby expect to incur so much in fees? We do not know, but $4.5m is definitely not an amount that any average Australian can afford. You believe you have been unfairly dismissed, unlawfully terminated by your employer and you are now without a job – excessive and unexpected legal fees is the last thing you want to worry about.

However, the alternative to court proceedings, which may seem daunting to the lay person who cannot afford millions in legal fees, is getting representation from us – A Whole New Approach. (note we are not lawyers) We offer two payment options to all our clients, the ‘No Win No Fee’ option or a fixed fee option. With the help of our clear and certain payment options, you will be able to fight your case confidently and without the fear of not knowing how much legal / representation fees you will rack up by the end. We know that you may feel insignificant and at a significant disadvantage against your employer, who you think has more money than you to cover legal costs, but with our support and work, you will be well and fairly represented – at a respectable cost!

Whether you use our services or anybody else you need to know, the best you can, what your in for, get a fixed fee or success percentage. You need to know that you are going to get something thing out of your claim, or achieve your goal, whatever that may be.

Our ‘No Win No Fee’ option includes an administration fee that will cover the filing fees and any other relevant disbursements and then if and only when we are successful in obtaining a settlement on your behalf, we will be paid a lesser proportion of the settlement than yourself. This payment structure is to ensure that our interests align and so we are fighting for the same goal in the end – to get the best settlement for you as we also have ‘skin in the game’. The other option is the fixed fee option – unlike Mr Ashby who was required to pay $4.5m in fees, you will know exactly how much you have paid to us for the work and know that you will not need to pay a cent more. Upon initial consultation, we will quote you a fixed fee if you wish to weigh the benefits of both options.

Call us on 1800 333 666 for a free consultation and also a quote on which fee option will be the most appropriate for your circumstances.

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.

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