Workplace & Unfair Dismissal News

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].

I am stating the obvious when I say that employers are downsizing, dismissing staff, making more and more employees redundant.

This has lead to increased enquires with us for unfair dismissals, general protections enquires, redundancy issues, unlawful terminations, the list is almost endless.

But the question a lot of employees asked are why letting me go? I was a really good worker, I’ve been there the longest, my figure are the best, I made budget. Why not someone else. Companies over the last few months now have dismissed their troublesome employees, work cover, complainers, the ill, the injured, Coming back from maternity leave, the higher paid. So who’s next? Is my question.

What companies are now looking for is employees that are flexible, who fit in, fill in, not every time the employer asks for something to be done, the employee wants to look up their employment contact to see if its in it, before they decide to do it or not.

However what’s a reasonable request to one employee is not reasonable to another. Presently I think too many employees are resigning, some 8 weeks out from Xmas without thinking of the ramifications through of their actions. How long will I really be out of work, its tough out there at the moment if you’re in the job market.

An option is to take your dispute to the Fair work Commission as a General protections application not involving dismissal, or a anti bullying complaint. Be aware you cannot just go to the Fair work Commission because you don’t agree with what your employer is doing, you must have grounds under the FWC Act. (check with us)

There is no doubt the pendulum has swung to the employer, but you still have rights, you don’t have to be trampled on. The key is to some how find middle ground, your happy with your job and pay, the employer is satisfied with what they are achiving with your labor, having stated that, its not that easy.

It will be interesting with the lockdowns finishing and the winding back of job keeper, that there will be employees who will refuse to return to work, arguing continued health concerns, equally there will be many cases employees will face coming back to different position from which they had left previously. The effects of the pandemic on the economy means nothing will be same again.

Think about being more flexible, fit in so you keep your job, not being in the next lot of redundancies, don’t resign, call us, get advice, you are entitled to excise your workplace rights and not be subject to adverse action, discrimination, being bullied, as a result. There is no doubt employers want more output for their labor dollar. It’s certainly a fine balance in these difficult times.

Can i have some advice please

Currently we are receiving a lot of phone calls regarding attending disciplinary meetings.

Now that the employer has the upper hand due to the high unemployment rate (increased supply of labor) and many employer’s are taking every advantage to reduce labor cost (read some of my other blog articles). Employees are now being subjected to increased, scrutiny, KPI’s, performance improvement plans, investigations, warning and meetings, which in many cases result in dismissal.

When we receive these calls, the first thing I say to everybody is under no circumstances resign and there is a very strict 21 days from the day you are told of your dismissal, to lodge a claim with the Fair work Commission. (now from when you get paid out or receive your dismissal letter), (a loosely enforced 12 months to lodge a discrimination claim with the relevant body).

Most employees know if they can do their job, are the expectations of the employer is reasonable or not, when they are called in for a meeting. There is a perception in the workplace that’s you get three warnings and you’re out. This is the general approach, adopted by the large supermarket chains.

However it does not necessarily apply in other industries, or as per your employment contact. What the Fair work Commissions through its decisions state it must be a valid reason and a process that is fair, given the individual circumstances.

When your called into a meeting, ask if you need a witness, it the answer is yes, make sure you take one, slow down the process if you cannot get one within the timeline for the meeting. If the answer is no, but you feel that the meeting is important, your job may be at risk, or it all seems a bit odd, insist on a witness.

Make sure your witness behaves themselves, it all about you, not them, some witness like to bully, “showoff”, make out there lawyers. This, instead of helping you, opens the door and give the employer additional ammunition to dismiss or discipline you.

The way I put it is this, “Plan A” of the Employer is to dismiss you (particularly if your suspended, they are looking for reasons so you don’t come back, not for reasons to get you back), in many meetings the employee has the answers, the employer then think Ok, I’m stuck, they then move onto “Plan B”, “you lied to us in the meeting”, “you wouldn’t answer the questions” (surprisingly some employees go into meeting and go no comment like on Law and Order, CSI on TV, Employees are obligated to participate in a genuine and meaningful way to maintain their employment), “your given is different answer today to what you said last week”, “you withheld information”.

Answer all the questions, in a transparent way, be truthful, show contrition if the circumstances require it, do not apologize if you haven’t done anything wrong. Some employees apologize just hoping they keep their job, and the Employer seizes on this to dismiss them.

Its hard for me to give any detailed commentary or specific advice as everybody’s circumstances are different, your welcome to call us, get advice, don’t think they (the employer) cannot survive without you, that your smarter than them, I’ve got that job until I win tattslotto or retire. Companies are dictatorships, they are not democracies, where everybody gets a vote,  even government departments have someone at the top who take the decision.

I’m not saying put up with rubbish from your employer, stand up for yourself, keep yourself respect, its how you do it that matters. I hope this blog helps.

Probationary periods are the non-negotiable loophole for employers to terminate and throw out any agreement you may think you have. Many employment contracts don’t mention that a probation period applies, so new employees automatedly assume it doesn’t apply to them. To some employers dismissing someone in a probation period is all part of a days work.

In some cases families move their entire lives across the country just for work. The failure or the successful completion of this period is crucial to determining the rest of their lives. During this period, the boss thinks they have absolute power. They simply do as they please. Employees live in fear of their workplace overlords and unnecessarily suffer in silence, many are bullied, abused, underpaid and in some cases sexually harassed.

Many employer’s think they can extend a probationary period at any time. In theory you could be stuck in probation for years. They can even be terminating you at any point without a legitimate reason. This is because the employee is under a “trial period” and subject to an undefined and broad criterion. This can include performance of the role, workplace behavior and some arbitrary assessments of workplace culture as well as ‘fitting in’.

Unless the employers ability to extend your probation is clearly set out in your employment contact prior to you starting employment, your probation period cannot be extended without your consent.

Such clauses should be deemed unlawful and subject to stringent review as they give the employer too much power making them judge, jury, and executioner. This dangerous power when left unchecked could dissolve all rights of the employee and lead to paid slavery. Many employers will bully, treat you like a indentured worker, personal slave, seeing what you will put up with before you get out of the probation period and have access to unfair dismissal rights.

What choices does the employee have, these are the non-negotiable terms and conditions that you must/ may submit to. The employer has your fate in their hands.

Completion of the Probationary period is the equivalent to bin day for employers.

 At this point they must consider whether you would be of any further use to them or if you are past  your use by date before being discarded like spoiled milk. The employer would most likely serve you with a letter of termination. Their very own ‘dear john letter’ and this time it is you, not them. A template copied and pasted with all the signs of corporate bureaucracy. An emotionless and generic letter that further patronises you with “we wish you well in your future endeavours”

Termination of employees often occur shortly after they exercise their workplace rights. This can include querying their pay rate, making a complaint, or even taking sick leave. Termination under these circumstances is an unlawful and a gross exploitation of their employees, employers will rely upon this knowledge and your lack-of to steal the advantage. As far as you’re aware you’ve got no chance. (you may be eligible to lodge a unlawful dismissal claim, know as a “General Protections Application”, check our GP page for more details)

The criteria for an ‘Unfair Dismissal’ application is a minimum service period of Six months for businesses with Fifteen or more employees and Twelve months for businesses with less than Fifteen employees. It is likely you will be dismissed before you reach either and for arbitrary reasons such as an alleged complaint by a customer or perhaps your failure to fit in with the culture.

However, you do not need to satisfy the minimum employment periods to be covered just to exercise your rights. Employees are protected under the section 340 of the Fair Work Act 2009. Section 340 allows employees to seek justice against their employers if they can demonstrate a link between their dismissal and their exercising of a workplace right.

The criteria for an ‘Unfair Dismissal’ application is a minimum service period of Six months for businesses with over Fifteen employees and Twelve months for businesses with less than Fifteen employees. It is likely you will be dismissed before you reach either and for arbitrary reasons such as an alleged complaint by a customer or perhaps your failure to fit in with the culture.

However, you do not need to satisfy the minimum employment periods to be covered just to exercise your rights. Employees are protected under the section 340 of the Fair Work Act 2009. Section 340 allows employees to seek justice against their employers if they can demonstrate a link between their dismissal and their exercising of a workplace right. Equally you cannot be dismissed for a discriminatory reason.

Thus becoming the Achilles heel in the employer’s impenetrable defenses. Employers hate this recourse / right that employees have and employer groups constantly lobby the Federal government to abolish this section of the Fair work Act

Employees deserve more respect in the workplace and these power imbalances unfortunately still exist today. Despite considering our society to be modern and forward thinking it is a shame that many employers continue to abuse and exploit many hard-working Australians just trying to earn a living. Such conduct is an affront to the Australian views and values and the fundamental concept of giving everyone a fair go. Probationary periods need further legislation and urgent reviews to stop employers from abusing their powers when deciding if Employees would remain with the business and make it unlawful for businesses to exploit employees without the intention of actual employment.

Its tough out there in Australian workplaces, the pandemic has created workplace / employment mayhem, not sure about your individual circumstances, or what to do, give me a call, I’m happy to help.

In a significant general protections ruling, the Federal Court has today ordered a large public enterprise software company, TechnologyOne to pay more than $5.2 million in compensation, damages and penalties to a senior executive sacked after he made bullying and other complaints.

Justice Duncan Kerr, in a judgment of about 300 pages, found that the employee had established that by dismissing him, took adverse action against him because he exercised a workplace right when he complained multiple times about bullying.

He ordered TechnologyOne Limited to pay the former employee $2,825,000.00 for his future economic loss, $756,410 to compensate his forgone share options, $1,590,000 in damages for breach of contract, $10,000 in general damages and $47,000 in penalties.

The lawyers, which represented the employee, said it believes the payout is a record for such a case in the Fair Work division of the Federal Court. In setting penalties, which included $7000 against the company’s executive chair/chief executive, Justice Kerr said he “twice rejected professional HR advice” that it would be unfair the employee “on the basis of mere allegations”.

“In the end, [the chief executive’s] choice was to stand with the bullies rather than the bullied ” To achieve effective deterrence, CEOs in like positions need to know that such temptations as he faced are to be resisted: and that there will be a not insubstantial price for failing to do so” He found the executive chair accessorily liable.

Finally a decision that sends a strong message to companies and directors that if you do the wrong thing, then you will pay the price. That dismissals that are essentially illegal, by breaching the Fair work Act, cannot be enacted by employer with little consequences, by paying or getting awarded against them a bit of “go away money”.

I keep reading General Protection decisions where employees have been dismissed from their positions in the most horrendous circumstances, lodge a general protections claim and get awarded say $10,000 with a legal bill that would have to be more than this. Finally a decision regarding a termination that set new case precedent as to what can be awarded. But before employees go to the representatives / lawyers regarding their dismissal, what would the legal expense be? In the TechnologyOne decision, some 14 hearing days, a decision of over a 1000 paragraphs, both sides represented by quality law firms, I would put both sides legal bill at over $200,000.

The Fair work Ombudsman does some good work chasing multi national companies who under pay employees, but seems obsessed in chasing coffee shops and farmers, etc and spending inordinate amount of public money doing so, perhaps funding General protection claims by employees would be money better spent, Who’s got $100,000 to fund there dismissal case, not many, but the Ombudsman does. It wouldn’t take too many decisions like the TechologyOne to bring Employers into line, and stop acting unlawfully against Employees.

Roohizadegan v TechnologyOne Limited (No 2) [2020] 1407 (2 October 2020)

This headline is from an article published in the “The Australian” newspaper today (Sept 18, page 6)
I wrote an article on the blog on exactly this topic (16th of Sept) how more females are graduating, entering various professions, how they get less pay than their male equivalents.
Its ironic, the legal industrial that represents people / workers in discrimination and sexism claims doesn’t treat its own workforce equally.
It’s the old adage “do as I say, not what I do”
Still small steps I raised the issue the other day, now “The Australian” is publishing material on it, at least its getting more and more in the conversation.

Its not just about the pay rates, it flows onto promotion, how workers get treated, if you can’t even get equal treatment in the workplace regarding pay, do you seriously think you get equal treatment when comes to performance, discipline issues, dismissals?
It seems common place for male lawyers to take the Friday afternoon, to have a long lunch with their friends (referred to as networking), a female lawyer wants to go home to see her kids in the afternoon after working extraordinary hours for the week and she runs the risk of being laugh at, she is seen as “soft”, “not committed”.

This applies approach applies in a lot of professional workplaces, it is slowly changing, its inevitable, why the wait, act now!! Call us to chat, or do something about it.

“Fortune does favor the brave!”1800 333 666