Workplace & Unfair Dismissal News

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

If you have experienced different or less favourable treatment in your workplace due to your personal circumstances with COVID-19, you may have been subjected to discrimination and certainly should not be dismissed

There are certain personal attributes that are protected by discrimination laws, such as race, disability, gender, pregnancy and family responsibilities. COVID-19 is not a ‘protected attribute’ itself, but discrimination due to COVID-19 is protected by other attributes.

What could the less favorable treatment look like?

• Termination
• Reduced hours
• Not being hired
• Having your job changed to your disadvantage
• Different treatment to colleagues
• Not being given legal entitlements, such as leave or flexible work conditions

I’ve been treated unfairly because I had COVID-19 or was forced to isolate.

This is disability discrimination. ‘Disability’ includes any injuries or medical conditions, such as COVID-19.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because my employer thought I had COVID-19, even though I didn’t.

This is also disability discrimination. ‘Disability’ includes any injuries or suspected medical conditions, such as COVID-19.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I am at high risk from COVID-19.

This is disability discrimination. ‘Disability’ includes any injuries or medical conditions which would make you more susceptible to COVID-19 or place you at greater risk.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I am pregnant and therefore at risk from COVID-19.

 This is pregnancy discrimination. You cannot be treated unfairly due to being pregnant, especially when you have a valid health concern, such as COVID-19.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though my family member is at high risk from COVID-19.

This is family or carer’s responsibilities discrimination. If your working conditions would place a family member at risk, this can be considered family responsibilities.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I have family/caring responsibilities due to COVID-19.

This is family or carer’s responsibilities discrimination. If your working conditions would prevent you from fulfilling your responsibilities to your family (for example, as a parent) or as a carer (for example, looking after old or unwell parents), you may be protected.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I made a complaint about my workplace’s COVID-19 policies and procedures.

This is not discrimination. However, making a complaint is considered ‘exercising a workplace right’ and is hence covered by General Protections laws. You may also be covered by State victimisation laws, depending on the nature of the complaint and to whom it was made.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been unfairly dismissed or unlawfully terminated within the last 21 days, consider a Unfair dismissal claim (F2) General Protections (Involving Dismissal) claim (F8) in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, (if outside this still happy to talk to you about the time line) consider a Discrimination and Victimization Complaint in Federal Human Rights Commission or your State Human Rights or Equal Opportunity body.

I have been treated unfairly because I have a genuine mental health condition and have been very anxious and/or stressed due to COVID-19.

This is mental disability discrimination. ‘Disability’ includes all mental illnesses and conditions. Provided that you have a genuine condition, you may be protected by discrimination laws. For example, unfair treatment may be having your sick leave request turned down, or being criticised or treated differently because of your condition.

•  If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I expressed my political views on COVID-19.

This is political opinion discrimination. You cannot be treated unfairly for expressing your political views, provided that you do not perform any activities breaking the law. For example, if you were terminated or treated differently for expressing your opinions about the current government’s approach to COVID-19, you would be protected.

• If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.

• If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I refused to wear a mask or comply with COVID-19 restrictions.

This is not discrimination. Discrimination does not protect you from activities that would break the law. You are entitled to express your political opinion, which is protected under discrimination laws, but this does not extend to performing unlawful activities.