Employee Rights

Employee Rights

What is considered sick leave abuse

What is considered sick leave abuse has become a real issue in the last few months. Of course employers are never happy when you take sick leave, they never have been. They think you have to be committed like they are, which is seven days a week of course. However with the current issues of employees being off on sick leave due to enforced isolation through the COVID-19 rule sand enforcement, having COVID-19 itself and the mental effects of isolation and stress caused by two years of the pandemic and heading into year three. The calls to us have tripled regarding the way employees have been unfair treated and abused regarding absenteeism and sick leave related issues.

sick leave

Sick Leave abuse by employees

Abuse of sick leave refers to employees who, over a period of time, have “gamed” the employers attendance policy. Exploitation of sick leave policy may range from employees not calling in or not showing up for their shifts, exhausting their available leave every month, and requesting extra time off when well.

Every time there is extra work to be done, knowing its going to be a busy day tomorrow, surprisingly employees are then sick, this places an extra burden on existing staff to carry the extra work. Also in these days of austerity, company’s do not have any spare labor and it falls to existing staff to do the work. Doctors certificates, particularly around the issues of mental health, bullying are more common than 20 years ago.

sick leave rights

Sick leave abuse by employers

This occurs obviously when the employee in the view of the employer is gaming, lying, taking advantage of the the employer, the following are examples.

  1. Insist on doctors certificates every time the employee is away, even for part days to attend appointments.
  2. The employer insist they accompany the employee to the doctor’s, want to meeting with the doctor to discus the illness or injury.
  3. Want to conduct their own assessment in the workplace regarding your injury and ability to perform your duties.
  4. Employers want to get their doctors to examine you, they want access to your medical records.
  5. Constantly tell you your not injured, your just lazy, just get over it, its all in your head, your letting the team down, your not loyal to the company
  6. Encourages co workers to bully you, say there’s nothing wrong with you, we are stuck with doing your work while your away, probably have a good time or rest.
  7. Start giving you menial tasks, stripping away your substantive role, setting triggers to make you resign.
  8. Isolate you from others, indicate to you there is no future, no promotion, we don’t know why your still here.

The list is not exhaustive, but given the amount of calls and emails we receive, daily, weekly, its got some sameness about it, as to how some employers react to sick leave. There are allot of good employers out there who clearly go to exhaustive lengths, far exceeding any legal obligations, our world at A Whole New Approach is the bad employers where its all about them, staff are numbers, its profits that matter. This is despite the evidence showing if you allow a workforce to be healthy, to recover, to get fit, who have EAP (Employee assistance programs) in place, productivity will increase.

Thankfully, programs to increase the wellbeing of workers have been found to provide significant returns. The Australian Government states that for every dollar invested in the health of workers, on average $5.81 for will be returned in savings.

 Eoghan Mackenna exercise physiologist and director of occupational health specialists, Logic Health,

Sick leave abuse, where to from here

Absenteeism and poor performance are without a doubt two of the most challenging employment management issues that employers struggle with on a continuous basis. Employers become despondent about the impact on productivity and service levels, and increasingly frustrated with employees who are unreliable and cannot be trusted to deliver. Looking for a quick fix when reaching the point where frustration levels become intolerable, is not the answer.   

Judith Griessel Labour Law Specialist, Legal Consultant and Accredited Mediator

You can see from the above statement the appalling stance employers are taking and their advisors are stating. So you can see now why employees Google “what is considered sick leave abuse” Researching sick leave abuse employers are advised by their representatives to:

A) Look for the lies the employees are giving for the reasons for being ill.

B) Look for the patterns of the days employees are off.

C) Closely monitor the employee.

D) Consider mentioning to the employee that your thinking about hiring a replacement

E) Longer term ill or injured employees considering terminating them.

F) Document missing days

G) Monitor the employees social media, see that their doing after hours

H) Closely examine the medical certificates, have been tampered with, dates changes, different doctors used.

Its not just the advice, its the tenor of the advise, not a caring bone in the employers body, why not find out what’s really wrong before commencing these bullying, heavy handed actions. Is there anything wrong with finding out that the employee of 20 years service? Who may have cancer, heart complaints, their partner has dementia and need care or be taken to appointment. Is the workplace culture that toxic that nobody can take 10 minutes out of their day and find out what’s wrong and the status of the other.

Equally though employees have to give a bit, participate, give the employer required feedback, many employee indicate its their right not to inform the employer what’s wrong with them. That its a matter of privacy, they worry what colleagues will think (I see this particularly around mental health issues) There’s that old saying “sometimes you have to give a little bit, to get allot”

Medical certificate, Dismissed for not having one

If you get abused, you can lodge what’s referred to as a general protections F8C application, where the issues go before a member of the Fair work Commission to sort out in the first instance. If your terminated you can lodge a unlawful dismissal claim F8. or a unfair dismissal claim F2, there are strict timelines around lodgments. You welcome to call us and get advice on these processes. Being injured or illness is tough enough without the tactics and carrying on of the employer, do not suffer in silence, you do have rights.


“what is considered sick leave abuse”, I hope you have found the article informative, we are A Whole New Approach, workplace representatives and advisors. We are at the cutting edge of commentary (look at the blogs, we have written), Fair work Commission decision analysis and debate. Any thing to do with the workplace, we are here for you, unfair dismissal, general protections, workplace investigations. We work in all states, Victoria, NSW, QLD, SA, Tas, WA, NT

Call us for free, prompt, honest advice 1800 333 666

Toxic workplace

What is toxic workplace culture

The way I put it is this, think of a tree in a toxic environment; the tree will fail to thrive, become wilted, and will ultimately die. That’s basically the metaphor for a toxic corporate culture. It prevents employees from thriving and while it (probably) won’t kill them literally, it won’t bring out their best and will eventually drive them to look for a job elsewhere. Toxic workplace culture on one level is institutional-centric; policies and procedures are designed with the company, not its workforce, in mind.

It means outdated work policies, for example a requirement to work from the office, that are mistakenly thought to squeeze the most productivity from an employee. It means benefits and perks that are easy on the company budget, but tough on employees’ lives. We see this in the pandemic, where real wages and hours are falling for employees, yet company proficts continue to increase, and high wealth company owners are worth more than ever before. It means regarding employees as objects that fulfill the company’s needs, not as people who have their own lives and families. 

A toxic work culture results in workplace “illnesses,” such as lack of cohesion among teams, increased absences and tardiness, lower productivity and high turnover. The illness once it establishes itself with the company is extraordinarily difficult to eradicate

Employee Categories

Employees fall into four groups who allow themselves to be subjected to this behaviour, because if you examine the list below you would think why in earth would anybody continue to work for organizations that have and engage in this type of behaviour, it makes no sense.

First group are employees who feel / think they have no choice, I have bills, kids to put through school, pressure from the family, friends to stay for career purposes etc. That “things” somehow will get better

Second group, though the demeaning processes as described, the employee feels worthless, that they are not capable of getting another job. (how convenient is that for the current employer). They have been that appressed they cannot and will not pick themselves up.

Third group are employees who do not realize what’s happening to them, the culture they find themselves in, is the way companies conduct themselves. They do not realize its not normal, its not how best practice companies conduct themselves. That there is a better way. Examples of this, you joined the company after leaving school, university and that’s the way I just thought things were. The company makes a profit, so it must be ok. Some women who are subjected to domestic violence, unfortunately think that this behaviour is not that bad compared to their after work life.

Fourth group are the employees who like this behaviour, who appear to thrive on it, they are part of it, but once again usually think its normal, or suits their lifestyle away from a myriad of issues with their home life, who just want to get ahead and will “do what it takes”, and have an element of sociopathic behaviour in them. Surprisingly the percentage is higher than you think.

Signs of a toxic workplace and what the toxic culture looks like.

  1. Fear-based management, feel constantly securitized, micro managed
  2. Non producing and demoralized employees
  3. An atmosphere of gossip and rumors, back stabbing, dramas
  4. A lack of transparency from the management, don’t know what’s going on
  5. Stress and uncertainty about the future, an unstable work environment
  6. A sense of “it’s us against them” or “it’s everyone for themselves”
  7. Significant instances of absenteeism or employees calling in sick at the last moment
  8. Workaholic behavior, a fear of not working hard enough. and a lack of healthy work/life balance
  9. Unclear employer expectations across all levels of management
  10. Favoritism, wage gaps, or discriminatory policies. “your not part of the click”, or the gang
  11. You don’t have a list of core values, no mission or vision statement, lacking a sense of purpose.
  12. There’s the obsession gossip in the office, social media, groups on Facebook, etc being critical.
  13. Unfriendly employee competition, management play one employee against another.
  14. Employees are often tardy or absent, simply don’t care if they are on time, take long lunch breaks
  15. Employees often work late or don’t take lunches, and when you go home or have a lunch made to feel guilty
  16. Still hiring for culture fit, no diversity or new ideas or skills. (boss doesn’t want employees smarter than they are)
  17. No workplace giving initiatives, no visual reward, no appreciation
  18. Little or no promoting from within, no increased opportunity for additional training
  19. Public criticism of employees, verbally within meetings or when your not there.
  20. Obvious favoritism towards specific employees, boss’s favorites are obvious.
  21. A mindset that regards employees as the company’s property, rather than as contributors to the business
  22. An underlying belief that employees are inherently under-motivated or easily dispensed with
  23. A lack of accountability at the highest levels of the organization, management have “they are born to rule syndrome”

The list is not extensive but I think you get the idea.

What do i do next?, you have 3 choices, read below
What one employee will put up with in a toxic workplace, another won’t, you have to decide what’s in your best interest.

Three Choices

I get many calls from employees, telling me me their story and particular situation, some events that’s occur in the workplace are horrific. I don’t mind hearing their stories, troubles, about the bullying the harassment, I add to the conversation and suggestions, etc. However I stop them there and say “are you going to do anything about this”, and the response in many instances is “oh no, I just need to tell someone”. I’ll respond somewhat harshly, “if you need a friend, buy a dog, if you need psychological assistance, that’s what your doctors for”. Nobody has to continue to suffer, be that tree in the nature strip starved of water, oxygen, fertilizer. Every night when you come home and see that tree, if looks sad, this doesn’t not have to be you. I tell anybody who listens you have three choices.

What Are They?

One; Leave, resign, this companies “BS”, its effecting me, you organize another job, and your out of there.

Two: You put up with it, as mentioned you might have financial commitments, career goals (finishing a apprenticeship, traineeship, gaining valuable experience.

Three: You do something about it, start pushing back, making suggestions, going to human resources, putting your concerns, your complaints in writing. Try and put a positive bias towards your comments, your actions. Lets be honest, no one likes a perceived whinger. Particularly organisations who have the culture mindset outlined above. If you have time research “Maslow’s hierarchy of needs“. How to change people, it can be done.

But what do I do if this doesn’t work?, or the organisations behaviour gets worst? Or what is more common, because you have excised your right to complain to the company, it has commenced adverse action again you, i.e. the employer wants to get rid of you, demote you, cut your pay. You do have the ability to lodge a claim with the Fair work Commission, referred to as a general protections application (F8C) or a anti bullying complaint (F72). Our general protections page has allot of details click here.


We have a great page up on how to cope with Toxic workplaces, it will improve your coping skills click here

I hope the blog toxic workplace was helpful to you, do not suffer in silence, allot of employees have the sense of “don’t make me go back to work there”. We we don’t have slavery in this country, you do not have to suffer this behaviour, I do understand people have bills, mortgages to pay, the key is to have a plan, were you want to be in 3 months, 6 months whatever, and work to that plan. We are A Whole New Approach P/L, for all Fair work Commission matters, bullying, harassment, being forced to resign, dismissals, your welcome to give us a call, its free, confidential, prompt.

Call now, 1800 333 666, we work in all states, Victoria, NST, QLD, SA, WA, TAS, NT

Looking to work out how much compensation your particular situation is worth,

Unfair dismissal click here,

General protections click here

Diversity and Equity in the workplace

What does diversity and Equity look like in the workplace

What does diversity and equity look like in the workplace, is a subject I haven’t seen much written about, so here goes. There are many examples of diversity (and lack of) in the workplace. We all become comfortable with our own groupings. (you see this with religious groups, same beliefs, same ideals) Variety in many cases can be in the eye of the beholder.

Definition of Variety

the quality or state of being different or diverse; the absence of uniformity or monotony. it’s the variety that makes my job so enjoyable


It’s worth taking a moment and asking: what does diversity and equity mean to you in a particular workplace environment? The concern is people become comfortable, accept the status quo. Not everybody wants to get up in the morning and challenge themselves to do better, make the company, the world a better place. Now this is not being overly critical of people, its just the way it is.

People often fall into an unconscious habit of thinking of diversity and equity in only one or two dimensions. It can be race, age, gender, amongst others, and employees usually only see diversity though their own circumstances and views. Allot of employees see diversity and equity as tolerance of others. Employees think well I work with other races, genders, religions, so we are a inclusive group here. Diversity and equity is ensuring there is deliberate policy and culture of avoidance of the stereotyping of the groups of employees. A deliberate approach to employing people that are individuals outside of the “group” , but based on skills, experience, not because of the sole basis they are different.

But this can intended consequences, in striving for diversity in the workplace, you employ people form a particular nationality, and the experience works out well for the company, then they ask can their friend have a job, they’ve just arrived from overseas. You think why not, its work out well so far, its still diversity. But the concern is diversity is here, but no equity, the particular nationality speak in their native language, hence the exclusion to others, Is this fair?, there is not simple answer, the last thing you want to be seen is to be perceived as a racist.

general protections and adverse action
Everybody should be welcome, how do we get there?

Definition of diversity

he state of being diverse; variety. “there was considerable diversity in the style of the reports”

the practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations, etc. “equality and diversity should be supported for their own sake”


Is Diversity Easy?

But depending on the situation, you can almost always find a way to increase the level of diversity in a group of employees, or a team, factory, office, whatever on a decision, in planning, or in a conversation, or in a change of policies, but it must not look like or suggest discrimination in itself. Or a action just to say we are politically correct, to satisfy others outside the company (shareholders, media, legal, etc).

Diversity and equity in the workplace, faces many challenges

Here are a few examples: 

Diversity and Equity in the workplace can be in the delivery or development of a new product or service. 

The more employers are trying to serve and create value for a diverse set of customers and customer needs, the more they need multidimensional diversity in their teams. 

  • The first level of diversity (that we almost take for granted now) is cross-functional representation. If you look around and only see scientist you know that is a problem. 
  • The team is given the job of developing a product for a national market. It’s easy to look around and see whether a team is dominated by one gender or one race. Unless the product really only aspires to serve that homogenous market, that’s a problem. 
  • What about socio-economic status? In most professional situations, everyone has achieved a similar band of income and economic security that can lead to a loss of perspective on value, pricing, and relevance. How about educational background? Does everyone come from one or two schools? Has anyone worked their way up through a community college or other means? 
  • Do they share the same work experience? This is particularly an issue in large firms that have very structured career tracks.
  • Is everyone currently in the same city? Did they all grow up in similar environments despite coming from across the globe? 
  • to break down this grouping is extremely difficult, and can take years to achieve, but you have to start, cultural change is a challenge, we all know that, but the quicker its acknowledged, the quicker it can be dealt with.

Groupthink. First documented in 1971, groupthink is a phenomenon that occurs when individuals avoid disagreeing with a group or expressing doubt. The larger and more similar the group, the less likely individuals are to dissent. 

In this multi-faith commune, there is harmony in celebrating difference

Sunday Age, 19/12/2021

I think the headline in the age has some relevance, be proud of the difference, even if it comes pain and cost. The Australian way of putting “groupthink'”, is to refer to the group as “yes men”, there are numerous studies out, indicating the longer the CEO is in charge of a company, the higher the percentage employees around him or her that have like minded views. Why? On one hand, individuals may feel such a strong group identification that it feels uncomfortable or threatening to disrupt the group consensus. Group norms and behaviors form and solidify quickly because they seem to share so much in common.  On the other hand, all of the individuals in the group might share such a similar set of experiences that they share the same blind spots and the same lack of awareness of their blind spots. 

Even groups with the best intentions can fall prey to groupthink. Irving Janis, the psychologist who first researched group decision-making, found that behavior such as bullying, rationalizing, and lapses in moral judgment were more likely under these circumstances. You compromise your principals, standards to fit in, not “rock the boat”.

Having a diverse team provides access to a wider range of skill sets and experiences and different ways of thinking, behaving and communicating. This facilitates the growth of new ideas and reduces groupthink.

We all need to get along

Diversity and Equity in the workplace, how do we do this? Changing the culture of a workplace is challenging but rewarding work.

Many shy away from it because they don’t know where to start or aren’t sure that they’re doing it right. If an organization has previously tried — and failed — to implement a diversity initiative, they may decide that such initiatives don’t work or that the benefits are no longer worth the effort, and maintain the status quo, after all it has worked previously for a long time.

However, there won’t ever not be a demand for inclusive and diverse workplaces, 40 percent of all people in Australia are foreign born and will be entering the workforce in the future. Now is always a good time to start, but if previous efforts failed, the company needs to take a different approach. 

Here are eight ways to start reviewing, challenging — and shifting — your employer to a more inclusive environment, one to be proud of.

1. Recruitment processes

Ensure diversity and equity in your recruitment practices by making sure that you are looking at talent from all backgrounds. Don’t needlessly apply barriers to entry in the hiring process, like advanced degrees, expensive certifications, or experience with certain firms. poor English should not been seen as a barrier, wee have to knowledge 40% of all Australians are foreign born. The skills, training, experience that these migrants and refugees bring is fantastic and over the last 200 years its what Australia has been build on.

You have to insist that your Employer restate your companies commitment to inclusive recruitment, regardless of background and disability, in the job description. Make sure that when conducting interviews, you represent diversity amongst existing employees as well as in potential employees. There is a whole level of prejudice towards employees who have filed and or been on Workcover, that they are lazy, complainers or may just get injured again and be a liability to the company. We have to move away from this subconscious approach of “only fit, white, young males may apply”.

2. Employee groups

Your employees are whole people, and they bring their entire selves to work everyday. Its not uncommon to spend more time at work than with you own husband, wife or partner. It is hard to separate your work life, away from your home life, phones, laptops, social media going 24 hours a day doesn’t help, your expected to be accessible all the time. Providing spaces where employees can gather with other people of their background, ethnicity, and/or who share certain interests are a way to make sure that people feel included and represented at work. A prayer room, a area for women to breast feed, share their national food, these adjustment don’t really cost anything and it shows inclusiveness and respect.

3. Lead by Example

Leaders set the pace for their companies in more ways than one. Inclusive leadership groups make better decisions, and are a powerful reminder to the rest of the company of the values the organization embodies. Many people from under-represented backgrounds are concerned about their ability to progress in their career (that ever-present glass ceiling), so seeing someone they can relate to reassures them that the company is a place where they can thrive. There is a chance they can get ahead, not a felling of hopelessness.

4. Be upfront, honest in the approach 

Don’t try to build diversity on your own. Be transparent about your efforts and ask your teams for help. One person can’t see or fix everything by themselves. Consider implementing regular meetings and feedback devices where your team can report on what they see, what needs to be improved, and discuss in a neutral space any concerns they may have. Be sure you follow up by acknowledging their concerns and implementing meaningful changes.

5. Community Engagement (Both in and outside the Company)

Social justice issues are prevalent, and companies can’t be quite like they used to be, you see this with climate change. There’s possibly no faster way to lose the trust of your people than by putting out a statement that isn’t reflected in their day-to-day experience. Take an zero tolerance stance against racism, discrimination, sexism, prejudice, and harassment. These are human rights issues, not limited to special interest groups. (this special interest groups seems to have in through lobbying groups) Building an environment where people feel safe and valued means standing up for their rights. 

6. Be open, let it be seen

Diversity and groups means diversity of thought. Ask employees to contribute to the discussion, especially if they haven’t spoken up before. Remember, when a conversation becomes too homogeneous (in other words, when there is groupthink) it becomes harder for people to speak up with dissenting opinions. Play your own devil’s advocate and discuss the pros and cons of your own ideas. This will demonstrate that you are interested in the best idea, not just the most popular one. you are listening to all, with no fear as to who you are or background.

7. Do the research

Share the benefits of diversity with your fellow employees, share little stories, put the benefits forward, in a succinct way. Try and ensure where you can that it being evidence based. Looking at the positives is no bad thing, instead we are always, if we are not careful, of wanting to tear people, ideas down. Research continues to be done on the benefits of a diverse workplace. Across the board, employees are happier, healthier, stay longer, and produce more when they feel respected, valued, and included. Inclusivity builds trust within an organization.

8. Diversity and Equity Stories

Diversity and Equity in the workplace. I’ll tell a story (stories mentioned in 7) of my own, one Friday night (18 years ago) I was going out, of course I don’t drink drive, so I got an Taxi. I asked the driver to stop at a bottle shop, he wouldn’t, three times I asked, and he kept driving past bottle shops. It was obvious because of his religious beliefs. I was getting frustrated, I said to him, how many Christian friends do you have?, no answer. I said to him, ask me how many Muslim friends do I have, I said none. I said neither of us have crossed the divide. I tell this story to others in the work place over time, its shows the great divide, the lack of diversity in my friends. I took a conscious decision this is to never happen again, we at A Whole New Approach have a very diversified work force. See, its not that hard, it fits in with the “a fair go mate”, that we as Australian’s are proud of. The taxi drive and I are still friends to this day.

Be the one that’s different, be the stand out!

Conclusion: Diversity and Equity in the workplace

Diversity and equity in the workplace, isn’t just a conversation or whoever. Everyone has something that makes them different, its what’s makes us who we are and makes the world more interesting. Lets be honest it would be boring if we were all the same. The challenge for management is to play to employees strengths, get the best out of people, Employers should be doing this anyway, so its not like employers have to spend huge amounts of money introducing this change. Whether it’s a unique upbringing, educational background, way of thinking, or perspective on the world, whether its nature or nurture, we all bring our own strengths to the workplace. A diverse and inclusive employer is one that is on the forefront of innovation, social change, community and employee engagement.

I hope you enjoyed the article “Diversity and Equity in the workplace”. We are A Whole New Approach, leading workplace advisors, we are leaders in Fair work Commission matters, including unfair dismissals, discrimination, sexual harassment. We constantly lodge general protections claims relating to matters of diversity.

We contribute to the development of workplace diversity through assistance, advice, commentary, basically being vocal and standing up for employees. Have a concern, want to contribute to the debate, suggestions, give us a call 1800 333 666 or email us at mediate@awna.com.au. Fair work Commission stop sexual harassment order, forced to resign due to sexual harassment. Find out “what is my case worth?” for unfair dismissal “how much is my case worth

Workplace horror stories That’ll Make You “WTF”

workplace harassment
Issues in the workplace are sometimes not straight forward, and sometimes bizarre

Workplace Horror Stories That’ll Make You Say, “WTF”, what a great topic, it lets you know what others are going through! These workplace enquires were made via the NBC web site, however at A Whole New Approach P/L we get similar statements as enquires relating to anything and everything. The enquires regarding COVID-19, and vaccinations frankly in many cases are bizarre, have stated that, these are trying and unprecedented times. Unfair dismissals, particularly in Victoria and NSW, are on the increase, certainly since the ending of the lockdowns were announced.

Here are a selection of the most jaw-dropping enquiries :

“A colleague stole my spicy food, got sick, and is blaming me, I’m worried I will get the sack””

“Low performers in my office are parade around and forced to wear dunce caps.”

“Is the work atmosphere I’ve created on my team too exclusive?”

“I walked in on my employees having sex and now I think there’s an office sex club.”

“My coworker wants us to call her boyfriend her ‘master, and I will be dismissed if I don’t”

“I racked up $20,000 in personal debt on a company credit card.”

“Employee won’t come back unless her coworker is fired.”

“Employee got her colleague arrested for smoking pot at a conference and now wants a transfer.”

“My best employee quit on the spot because I wouldn’t let her go to her college graduation.”

“My manager shows up while I’m having chemotherapy to talk about work.”

“Our boss will fire us if we don’t sign up to be a liver donor for his brother.”

“My boss wants me to paint his house in the holidays”

“My supervisor stole a family heirloom from me and gave it as a gift to someone else.”

“I’m in trouble for what I wore when my boss made me pick him up from the airport in the middle of the night.”

“My coworker tickled another coworker, and now there is chaos”

“My anxiety is causing problems at work, I think I’m being stalked now.”

“My Employer made me leave a work noted at the grave of my bereaved coworker’s relative.”

“My coworker responds to everything I ask him to do with profanity and ‘your dad’ jokes.”

“I emailed my girlfriend’s boss to complain that he encroached on our relationship.”

“My employees refuse to call their coworker by her real name.”

“Employee drew genitalia on an trainees cast.”

“My boss enlists me in hiding his multiple affairs from his wife.”

“CEO’s wife ruined my job prospects.”

“I accidently insulted my boss’s daughter. “I have to look after my employer’s dog and cat while he is on holidays, I have to buy the food.”, “if I get terminated, can I get the dog food money back”

“I donated a kidney to my boss, I was sick for a long time as a consequence and now he has sacked me for not turning up”

(this is not made up, google it)

Workplace horror stories That’ll Make You “WTF” indicates life in the workplace can be difficult for both the employee and the employer from time to time, human beings are social animals, we like to mix, usually in like minded groups, hence religions, sporting clubs, hobby groups, the list is endless.

Workplaces are different, in it throws, individual together in groups from various backgrounds, social originals, etc. And no not everybody gets on. It certainly requires a degree of flexibility and understanding towards each other, but how far to you go in putting up with weird, strange behaviors from co workers or your employer is the question.

People in many workplaces are recruited for their skill sets, their problem solving abilities, the ability’s to work hard, not necessarily their social skills, yet workplaces demand we all put up with each other for up to 10 hours a day. We all have to learn coping skills, we don’t want to end up dismissed over some fool of a fellow employee. Not sure what to do?, how to react?, give us a call, 120,000 enquires to our web sites each month, thousands of phone calls we take, happy to help, we keep the conversations, real, we keep them honest, we keep them confidential.

Have a horror story, your welcome to send it though, it may assist other employees that they are not alone.

I hope Workplace horror stories That’ll Make You “WTF”, held some interest for you. We are A Whole New Approach P/L, we are not lawyers but one of Australia’s leading workplace advisory and representative companies. Fair work Commission matters, including unfair dismissals, general protections, workplace investigations, forced to resign issues amongst the topics that we specialize in. If its in the workplace, we will help you. Advice is free, take advantage of this, give is a call, 1800 333 666 All states: NSW, Vic, Qld, Tas, SA, WA

Workplace life, is what you make it

Serious Health Issue (MS) Do I have to tell my employer?

We constantly get calls from employees who have the onset of a serious health issue, they worry about being dismissed, loss of income amongst other concerns. I have chosen to discuss Multiple Sclerosis, because in the last year I’ve had several friends or associates who have the onset of MS at a relatively young age. But what happens within MS being discuss here, is transferable to other health events. Your always welcome to call me directly to discuss the matter.

Being diagnosed with multiple sclerosis (MS) or any other serious health illness for that matter, can be a difficult and emotional situation to navigate, and the same can be said for those who you choose to tell. If you have just been diagnosed with MS and are experiencing minimal to no symptoms, then you may not wish to immediately disclose your diagnosis to your employer. (this is an issue with early stages of pregnancy).Ultimately, it is a consideration of what level of privacy you wish to maintain and how this will affect your capacity to work.

I’m afraid of being treated differently, bullied or missing out on opportunities at work…

It is entirely normal and understandable to be concerned about facing discrimination or being treated differently as a result of disclosing your diagnosis. You may not wish to inform your employer of your MS because you do not want to be missed for opportunities or you desire to continue maintaining normalcy in your employment.[1] Deciding not to disclose, or delaying disclosure, may be appropriate for you in these circumstances and it would not be considered lying or cheating. 

If you are undertaking appropriate management plans and abiding by fatigue management strategies, paying close attention to your diet and following a rigorous exercise and rest regime to minimize your symptoms, then you may not find the need to inform your employer of your diagnosis. However, it is crucial that you closely monitor the progress and affect of your symptoms on your ability to work.

There is no requirement for you to disclose your serious health issue (MS) to your employer unless the symptoms and side effects you experience, are likely to affect your ability and capacity to perform the inherent requirements of your role, or are likely to present a risk to yourself or others.[2]

This means that as soon as your symptoms begin affecting your work, you should disclose your MS to your employer immediately. However, if your employer does ask you, in writing, to disclose any pre-existing injuries or illnesses that may reasonably affect you capacity to work, and you do not disclose your diagnosis, then you may not receive workers’ compensation if the symptoms and side effects worsen or are recurrent while working.[3]

How do I know when to disclose my MS

The disclosure of your diagnosis and its impact on your employment, will largely depend on the nature and requirements of your role. For example, if you are a truck driver and you are experiencing visual disturbances or your medication is making you feel drowsy, this poses a substantial risk to your capacity to work, as well as to the health and safety of yourself and others.[4] As a result, you must tell your employer of your MS so that they can make appropriate arrangements for yourself and for those around you.

However, if you are a classroom teacher and you can confidently perform the inherent duties of your role despite suffering from some fatigue, or needing to request some time off yard duty on hot days, then you can determine whether you wish to disclose your MS or not because it is not substantially affecting your capacity to work, or posing a danger to yourself and others.[5]

Essentially, knowing when to disclose your diagnosis requires a consideration of the nature and intensity of your work. In circumstances where you are operating heavy machinery, driving or doing anything that poses a significant risk to yourself and others,  it is always advisable that you inform your employer as soon as possible. However, if your capacity to work remains largely unaffected, then the choice is yours with regards to if, when and how you wish to disclose this matter.

MS can effect you in various ways, it does not automatedly mean you cannot do the inherent functions of your role
and cannot continue to be a productive employee

But what if I am still afraid?

It can be daunting to disclose your diagnosis of MS to your employer, but you should also consider the significant benefits you may experience if you do so. First, you may be able to increase education and awareness of MS by speaking to your employer and your colleagues about how it affects you. It also provides the opportunity to negotiate suitable working arrangements that allow you to perform your role to the best of your abilities, while also making accomodations where necessary.

Disclosure can also reduce any stress or anxiousness you experience from trying to cover up signs and symptoms of MS, trying to provide explanations for medical appointments and absences from work. It can be largely relieving once you tell your employer and it also provides them with the opportunity to speak with you and understand what your needs are. Although you may be reluctant to do so, you consider giving your employer a chance to address your needs.

If your employer is requesting information about your MS, they must ensure they are doing this respectfully, and in a manner that is not fair or intrusive. This means they need to tell you why they are seeking this information, advise you of any consequences if you do not respond to them, allow you to have access to your own information, and provide you with the contact details of those who will receive copies of your information.[6]

The most important thing to remember is that you remain in control of the information you are willing to give. You can choose how much and to whom you wish to share your diagnosis.[7] If certain symptoms or side effects are not particularly relevant to your work and they do not pose a risk to your safety or that of others, you do not need to feel obliged to disclose this information. However, the more information you do communicate to your employer, the better chance they have of being able to provide meaningful support and assistance.

At the same time, it is necessary to note that your employer may not know much about MS and you may have to educate them on what it is, what its symptoms are and how it affects your work. Nevertheless, it is an opportunity to initiate a discussion and you can work with your employer to ensure that appropriate arrangements can be made to allow you to continue fulfilling the requirements of your role.[8] Under federal and state legislation, your employer cannot discriminate against you or harass you if and when you disclose your MS, and they must also endeavor to make reasonable adjustments to support you in your role.[9]

If you are worried about who this information goes to, you can maintain open communication with your employer and ask them about who else will be told about your diagnosis. You can also request the matter be kept as confidential as possible and that it not be disclosed to your colleagues, if you do not want them to know. This may mean you provide them with a specified list of who you do and do not want them to disclose this information toyou’re your employer can then speak to you about how to proceed. Remember that you are in control and in making these requests to your employer, you are simply exercising your workplace rights, and not doing anything unlawful or questionable.

I have disclosed my MS and now I feel as though I am being discriminated against…

As previously mentioned, it is unlawful for your employer to be discriminating against you or harassing you as a result of your disclosure of MS. Discrimination can be both direct and indirect, meaning it can occur when someone is treated less favourably because of a personal characteristics, or where a policy and/or rule treats everyone in the same way but has an unfair effect on certain groups or individuals. It is unlawful for your employer or for any of your colleagues to be treating you less favourably because you have MS and if they are insulting you or making humiliating jokes, then this also constitutes harassment because of disability.

In response to the discrimination you are facing, you may be eligible to lodge a General Protections Application before the Fair work Commission which highlights the adverse action you have faced as a result of your disability. You may also submit a Statement of Complaint to a Equal Opportunity Commission or Anti-Discrimination Board to seek compensation for this discrimination.

Any questions about Serious Health Issue (MS) Do I have to tell my employer? article, call us to discuss. If you are still unsure of whether you need to disclose your MS to your employer, whether you are facing discrimination or what your options are, you can contact our office on 1800 333 666 to receive an obligation-free consultation with one of our workplace representatives who can provide you with advice on your situation. A Whole New Approach are not lawyers, we are the nations leading workplace advisors, if your unfairly dismissed or subject to adverse action in the workplace we can also discuss a general protections application, termination of employment, diversity in the workplace issues.

[1] MS Australia, ‘Employment and MS’ (2011).

[2] ‘Disability Discrimination and Employment’, Victoria Legal Aid, (Web Page) https://www.legalaid.vic.gov.au/find-legal-answers/discrimination-harassment-and-bullying/discrimination-and-victimisation/disability-discrimination-and-employment (‘VLA’).

[3] ‘Disability and the Workplace’, Victorian Equal Opportunity and Human Rights Commission (Web Page) < https://www.humanrights.vic.gov.au/for-individuals/disability-and-the-workplace/>.

[4] ‘To Tell or Not to Tell’, MS Australia (Web Page, 2 August 2017) <https://www.msaustralia.org.au/living-with-ms/expert-blog/tell-or-not-tell>

[5] Ibid

[6] VLA (n 2).

[7] ‘How Much Should I Tell?’, National Multiple Sclerosis Society (Web Page, 2021) < https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment/Disclosure-Decisions/How-Much-Should-I-tell>

[8] ‘Whom Should I Tell?’, National Multiple Sclerosis Society, (Web Page, 2021) <https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment/Disclosure-Decisions/Whom-Should-I-tell”

[9] Equal Opportunity Act 1995 (Vic); Disability Discrimination Act 1992 (Cth).

Flexible Working Arrangements? Entitled?

What are flexible working arrangements?

For many employees, flexible working arrangements can be very valuable and ensure an their work is balanced with their personal commitments. These arrangements may include:

  • Flexible start and finish times
  • Compressed hours
  • Part-time work
  • Casual work
  • Job sharing
  • Flexible rostering
  • Working from home or another location
  • ‘Purchasing’ extra paid leave
  • Unpaid leave
  • Gradual increase or decrease in work hours (e.g. transitioning back to work after parental leave, or transitioning an employee into retirement)

Can I request flexible working arrangements?

Any employee can request flexible working arrangements, though it is not guaranteed whether your employer has to accommodate your request. However, some employees have a legal entitlement to request flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (‘FWA’). There are two requirements that must be met.

Firstly, the employee must either be:

  • A permanent employee for at least 12 months; or
  • A regular casual employee for at least 12 months, with a reasonable expectation of continuing employment on a regular and systematic basis.

Secondly, the employee must be making the request for flexible working arrangements because they are:

  • A parent or guardian for a school-aged child or younger; or
  • A carer; or
  • A person with a disability; or
  • Aged over 55 years old; or
  • Experiencing family violence; or
  • Providing care or support to a family or household member experiencing family violence.

Furthermore, requests for flexible working arrangements must be in writing and set out the details and reasons for the change sought (s 65(3) FWA).

Not sure about your circumstances, give us a call, everybody is different

Can my employer refuse my request?

If an employee makes a request for flexible working arrangements, the employer has 21 days to respond to the request and state whether it has been granted or refused (s 65(4) FWA). Therefore, making a request for flexible working arrangements does not mean you are automatically entitled to receive them. Under s 65(5) FWA, the employer can refuse the request only if they have reasonable business grounds to do so, and must confirm the reasons for refusal in writing. Reasonable business grounds may include, though are not limited to:

  • The new working arrangement requested by the employee would be too costly for the employer;
  • There is no capacity to change the working arrangements of otheremployees to accommodate the request;
  • It would be impractical to change the working arrangements of other employees, or to recruit new employees, to accommodate the request;
  • The new working arrangements would likely result in lost efficiency or productivity;
  • The new working arrangements would likely have a negative impact on customer service.

CASE EXAMPLE: Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994

A case example of where an employer may reasonably refuse a request for flexible working arrangements occurred in the recent Fair work Commission case of Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994, in which Ms Dee Sinclair made an unfair dismissal application following her dismissal on 25 May 2021 from Sunwise Constructions Pty Ltd.

Ms Sinclair was a full-time receptionist and office administrator for Sunwise Constructions for four and a half years. Sunwise Constructions Pty Ltd is a small business, owned and managed by Mr Wayne Elkin and his wife, Ms Elisa Elkin. The business had eight other employees.

While employed at Sunwise Constructions, Ms Sinclair was responsible for caring for her grandson, Blake, who had special needs. Ms Sinclair’s responsibilities as a carer affected her ability to perform the requirements of her role, as she was unable to work the hours required of her. Ms Sinclair was employed to work full-time, between 8-8.30am to 4-4.30pm, though was unable to work these hours throughout most of her employment. Even though there was no formal agreement, Sunwise Constructions allowed Ms Sinclair to work part-time, under 30 hours per week. Moreover, some of the hours were at Ms Sinclair’s choosing and outside of business hours.

Over several years, Sunwise Constructions was very considerate of Ms Sinclair’s personal situation and accommodated flexible working arrangements where needed, including allowing time off, altered work hours, having children in the office, and allowing her to forward office calls to her mobile.

However, Sunwise Constructions financially struggled in 2020 and required maximum work efficiency to ensure the business stayed afloat. In particular, Sunwise Constructions sought to streamline their processes by having all administrative matters go through the office. As noted by Fair work Commissioner O’Neill at paragraph 13 of the decision, “In this context, Ms Sinclair’s irregular attendance and hours for the business was no long sustainable.” Commissioner O’Neill noted that although the company had been accommodating of Ms Sinclair’s personal situation, Ms Sinclair’s work hours, efficiency and reliability and significantly declined over the past few months, which was having a negative impact on the business. In respect of this situation, Ms Sinclair was given a warning that she must meet the onsite presence requirements of her role, which was particularly important given her role as office staff.

Eventually, Ms Sinclair’s employment was terminated when she indicated she was unable to work the hours required of her. Although Ms Sinclair had requested flexible working arrangements due to her carer’s responsibilities, it was not sustainable for the business for her to work reduced and sporadic hours. Commissioner O’Neill decided that there was a valid reason for the dismissal, summarising as follows at paragraph 31:

“Simply put…Ms Sinclair had long struggled to juggle the demands of the position with her significant personal demands, and an impasse had been reached. The business couldn’t sustain having the position held by someone who couldn’t fill it properly as it was affecting the viability of the business and everyone’s employment.”

Commissioner O’Neil

In situations such as this, a refusal to accommodate flexible working arrangements may be justified.

If my request was unreasonably refused, what can I do?

If you have made a request for flexible working arrangements that you believe was unreasonably refused, you may be able to take action in the Fair work Commission. If you were dismissed from your employment in relation to your request, you may be entitled to commence either an Unfair Dismissal claim (F2 Form) or a General Protections claim (F8 Form). If you are still working at the Company but have been subjected to unfair treatment since making the request, you may be able to commence a General Protections Not Involving Dismissal claim (F8C Form). For the purposes of a General Protections claim, requesting flexible working arrangements will likely constitute an exercise of a workplace right, and may also be considered discrimination if the request was in response to a disability, family or Carer’s responsibilities, or age.

A Whole New Approach are not lawyers, we are Australia’s leading workplace advisors, we advise in all states, give us a call the advice is free and confidential 1800 333 666. We are experts in all things to do with the workplace, we are here for you, make the call, prompt, confidential advice today.

Negotiating, Hard Bargaining or Extortion: Using Threats.

The Conflicting Views

At the Fair work Commission negotiating outcomes for your unfair dismissal or general protections claim is a way of life. The conflict is you as an employee of course for justified reasons, want as much as your can get and the employer wants to pay you the least amount possible.

Negotiating is an integral part of dispute resolution and reaching settlement agreements. When negotiation, it is important to acknowledge when conduct could cross the line between aggressive and zealous advocacy and extortion. Utilizing sensitive information to blackmail, extort or compel your employer to pay you out, threatening them the media, or a social media campaign will not be highly regarded should the matter be heard before a Court or Tribunal. Further, parties cannot defend their coercive or threatening behaviour by relying on the privilege attached to “without prejudice” negotiations.

Coercing and Threatening an Employee to Withdraw Their Fair Work Claim

In Bethune v Strategic Lawyers Pty Ltd,[1] the employer sent the employee a letter stating that “… should this matter not settle in accordance with this letter that we intend to refer to the CCTV (and three formal complaints) to the Legal Services Commission concerning whether your client’s conduct … .is fitting conduct for a legal services professional …”.

The employee argued that the employer sought to coerce her to abandon her claim under the Fair Work Act 2009 (Cth), by threatening to refer her conduct to the Legal Services Commission. In order to demonstrate an intent to coerce, the employer must have intended to exert pressure to negate choice and negating choice requires something more than influence or persuasion and implies a high degree of compulsion.[2] Secondly, the coercive act must involve conduct that is unlawful, illegitimate and unconscionable.[3]

Tough negotiating, don’t over play your hand, many employees think “they will never get rid of me”, will they did

Tendency to improperly pressure a party to withdraw

Further, the employee argued that the threat was unlawful in that section 17 of the Federal Circuit Court Act 2001 confers upon the Court the power to punish a person for contempt where their action interferes with the course of justice. The employee argued that contempt includes actions that have a tendency to improperly pressure a party to withdraw from court proceedings and a contempt will still have occurred notwithstanding that the party elects to continue with their claim.[4] Further, an improper threat intended to induce settlement[5] or threatening to report a legal practitioner to a professional disciplinary body, may also constitute a contempt.[6]

With respect to whether coercive conduct can amount to professional misconduct, it has been held that the making of a similar threat to induce settlement was found to be professional misconduct within the meaning of section 419 of the Legal Profession Act 2007 (Qld).[7]

Negotiate with a smile on your face

“Without Prejudice Save as to Costs” – No Automatic Privilege

The employer defended the alleged coercive conduct by claiming privilege with respect to the content of the letter, given that the words “Without Prejudice Save as to Costs” were stated on it. The employer argued they were entitled to make a without prejudice attempt to compromise the dispute and that protection cannot be abrogated by a simple assertion on an interlocutory basis that the offer of compromise somehow contravenes legislation or is conduct giving rise to an offence.

In general, “without prejudice” communications are privileged from disclosure and cannot be shown to the Court or a third party, unless the parties agree to waive the privilege. The purpose of the “without prejudice” rule is to encourage parties to reach settlement and thus to try and avoid court action.

The term “without prejudice save as to costs” rule extends the basic “without prejudice” rule. It maintains the same privilege but, should the matter go to Court, the parties can disclose communications when the Court comes to decide the issue of costs. Nevertheless, these communications remain privileged until after the matter has been settled or decided by the judge.

In Ferster v Ferster & Ors,[8] the Court has highlighted that there can be a fine line between proper and improper leverage in negotiations.  Where the line is overstepped, the “without prejudice” protection of the communication can be lost, leaving the maker of the statement vulnerable to the communication being used as evidence in front of the court.

When determining whether the “without prejudice” communications are privileged, the Court observed that “it may be readily accepted that the mere insertion of the words ‘without prejudice’ does not of itself necessarily clothe correspondence with the character asserted any more than the absence of those words would deny a privilege attaching to correspondence which is truly engaged in for the purpose of effecting a settlement or compromise”.[9]

Further, a “without prejudice” privilege does not apply to cloak improper conduct.[10] A party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.[11]

When Privilege does not apply

Thus, privilege does not apply where one party exerts unfair pressure upon the other during negotiations and the Court will admit evidence of such pressure and the privilege ordinarily attaching to ‘settlement’ negotiations in these circumstances cannot be relied on.[12] Where statements are made in the nature of admissions not with a view to seeking compromise but rather in the nature of an ultimatum to the other side privilege will not attach.[13]

Consequently, Judge Tonkin held that the employer exerted unfair or illegitimate pressure upon the applicant within the context of settlement negotiations to accept an offer and the “without privilege” claim by the Respondents cannot be relied on in that regard.[14] It was held that the letter contains communications that were made in furtherance of the commission of an act rendering a person liable to a civil penalty (such as coercion) or a communication affecting a right of the employee.[15] Thus, the “without prejudice” communications did not attract privilege and were held to be discoverable.

Conclusion: Negotiating, Hard Bargaining or Extortion: Using Threats.

I hope the above has been helpful to you, sometimes little bit of knowledge can be power, sometimes a little bit of knowledge can be dangerous. At A Whole New Approach Pty Ltd we are not lawyers but extremely skilled and experienced negotiators, want help in resolving your workplace dispute?, give us a call. We can also represent you in lodging a unfair dismissals claim or general protections claim. Your welcome to get free advice on 1800 333 666 We work in all states. Victoria, NSW, QLD, SA, WA, Tas, NT

[1] [2021] FedCFamC2G 6.

[2] Ibid at [24].

[3] Ibid.

[4] Harkianakis v Skalkos (1997) 42 NSWLR 22 at [28] and [29].

[5] Y v Z v W [2007] 70 NSWLR 377 per Ipp JA

[6] Harkianakis v Skalkos (1997) 42 NSWLR 22 at [30].

[7] Jensen v Legal Services Commissioner [2017] QCA 189.

[8] [2016] EWCA Civ 717.

[9] Apotex Pty Limited v Les Laboratoires Servier (No 5) [2011] FCA 1282 at [25].

[10] Bethune v Strategic Lawyers Pty Ltd [2021] FedCFamC2G 6 at [49].

[11] Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436 at 2444.

[12] Dataquest (Australia) v Dataquest Inc [1996] FCA 1685.

[13] Dataquest (Australia) v Dataquest Inc [1996] FCA 1685.

[14] Bethune v Strategic Lawyers Pty Ltd [2021] FedCFamC2G 6 at [55].

[15] Ibid [56].

Support Person the Rights and Role

Workplace Investigations, What Are Your Rights?

The rights and role of a support person is not properly understood. A support person is someone that an employee can nominate to provide them emotional support during a meeting, particularly in relation to a workplace investigation or dismissal.

Importantly, a support person is not an advocate or representative. They cannot speak on your behalf, and their role is solely to provide support and reassurance. For example, if you are asked a question during a meeting, your support person cannot answer the question for you.

Nevertheless, a support person may be able to fulfil other roles that do not interfere with the workplace investigation meeting. For example, a support person may be able to take notes on the meeting. A support person may also be able to act as an intermediary between yourself and those presiding over the meeting. If you are feeling too emotionally distraught, your support person may be able to request a short break so you can recover.

Role of A Support Person, the importance

The importance of a support person was recently highlighted by the Fair Work Commission in Goss v Health Generation Pty Ltd.[1] At paragraph 48 of the decision, Deputy President Clancy explained:

Support persons have an important and useful role to play when involved in investigatory and disciplinary matters in the workplace. While a support person is not an advocate per se and should not hijack a lawful and reasonable process or answer for an employee, I do not subscribe to the absolute view that they should only be seen and not heard. This is because there may be circumstances in which an employee might be experiencing difficulty in comprehending aspects of the process or an employer might be misconstruing an explanation and the support person present can help improve the quality of the dialogue. 

Deputy President Clancy

This decision by Clancy DP affirms that although support persons cannot advocate on behalf of the employee, their role is important to maintaining the fairness of workplace investigatory and disciplinary matters. Clancy DP noted that support persons are not expected to be ‘seen and not heard’, meaning that a support person does not completely lack a voice in such meetings, but they can speak to help an employee understand what is being said or clarify miscommunication.

Who can be my support person?

A support person can be anyone chosen by the employee, such as:

  • A work colleague
  • A family member, partner or spouse
  • A friend
  • An industrial or union representative
  • A lawyer or paid agent
Its important your support person acts professionally

Why are support persons allowed in meetings?

Any meeting where an investigation, discipline or termination are discussed can be very stressful. Such meetings often feel like an interrogation, with the employee facing one or multiple managers, supervisors, owners or HR representatives. A support person is present to neutralize this imbalance and make an employee feel that they have someone on their side.

Am I entitled to a support person?

Employees have a right to request a support person in any discussions relating to workplace investigations, potential dismissal or other disputes, including general protection related matters. An employer cannot unreasonably refuse the request.

However, there is no obligation on an employer to inform the employee that they have a right to request a support person. Instead, the employee must positively seek to enforce the right themselves.

Moreover, there is also no obligation on an employer to provide the employee with a support person.

S 387 of the Fair Work Act 2009 (Cth) describes circumstances which point towards an unfair dismissal. One such circumstance, at s 387(d), is whether the employer unreasonably refused an employee’s request for a support person. This means that if you are dismissed and your request for a support person was refused without reason, you may have a case for unfair dismissal. It should be noted factor alone may not be enough to prove a whole unfair dismissal case, but it may certainly be symptomatic of a lack of procedural fairness or a harsh outcome. As described by the Explanatory Memorandum to the Fair Work Act (which explains what the section means):

This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. It will be one factor FWA must consider when determining whether a dismissal was unfair, having regard to all of the circumstances, including the capacity of the employee to respond to the allegations put to him or her without such a support person being present.[2]

Explanatory Memorandum to the Fair Work Act

As aforementioned, a support person is not an advocate. Therefore, if an employee requests an advocate, but this is refused by the employer, this would unlikely amount to procedural unfairness or constitute an unfair dismissal. This was affirmed in Appeal by Victorian Association for the Teaching of English Inc [2014] FWCFB 613.[3]

What if I don’t know what the meeting will be about?

If you don’t know what the meeting is about, but it appears it will be in relation to disciplinary proceedings or allegations of misconduct, then it is worthwhile exercising your right to request a support person just in case. For example, if the notice to attend the meeting states that it is in relation to ‘serious misconduct’ or ‘allegations’, or otherwise appears serious in nature, dismissal may be a possible disciplinary outcome. Even if you are unsure about whether you will be dismissed, it may still be prudent to request a support person anyway, especially considering the employer is not obligated to inform you of your right to a support person.

When might a refusal be reasonable?

Obviously, there will be no refusal where the employee does not request a support person at all.[4]

Other circumstances where the refusal may be reasonable include where the employee requests on extremely short notice for the meeting to be postponed so their support person can attend, even though the employer provided adequate notice of the meeting.[5]

Another example is where an employee’s choice of support person was unavailable, but the employee did not request an adjournment of the meeting.[6]

When might a refusal be unreasonable?

To reiterate, a refusal of the request for a support person is unreasonable, the employee may have a case for unfair dismissal. Such circumstances may include where:

  • The employer denies the employees’ choice of a support person, as occurred in Dewson v Boom Logistics Ltd.[7] In this case, the employee chose a particular union representative as their support person, but the employer refused and nominated a different union representative to be the employee’s support person.
  • The employer refuses a reasonable request to reschedule a meeting so the support person can attend, as occurred in Laker v Bendigo and Adelaide Bank Limited.[8] In this case, it was found that the request to reschedule was not an unreasonable burden on the employer and could have been accommodated.
  • The employer denies the type of support person chosen by the employee, as occurred in Lankam v Federal Express (Australia) Pty Ltd T/A Fed Ex.[9]In this case, the employee requested a union representative as their support person, but the employer refused and limited the employee from choosing a support person from the company’s human resources department.
  • representative as their support person, but the employer refused and nominated a different union representative to be the employee’s support person.

If you have been dismissed and you believe you were unreasonably refused a support person, you may have a case of unfair dismissal. Call 1800 333 666 for an obligation-free consultation about your options.

If you have any questions regarding the “role of a support person”, call us for a chat. If you have been dismissed, subject to a workplace investigation, general protections adverse action or you believe you were unreasonably refused a support person, you may have a case of unfair dismissal. Call 1800 333 666 for an obligation-free consultation about your options. We at A Whole New Approach are here for you, we are not employment lawyers, but the nations leading workplace advisors, we have our “finger on the pulse” for you. Any diversity in the workplace issues, termination of employment, been sacked, whatever, call us, workplace advice is prompt and confidential.

[1] [2010] FWA 5713. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa5713.htm.

[2] [2011] FWA 6230. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa6230.htm.

[1] [2021] FWC 1751, [48] (Clancy DP). Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1751.htm.

[2] Explanatory Memorandum to Fair Work Bill 2008 [1542].

[3] Available at: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2014/613.html

[4] Mabior v Baiada Group Pty Ltd T/A Adelaide Poultry [2011] FWA 5778. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa5778.htm; see also Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa3549.htm.

[5] Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWA 1360. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa1360.htm

[6] Mydlowski v AAA Cleaning, Security Maintenance Pty Ltd [2010] FWA 1810. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa1810.htm.

[7] [2012] FWA 9027. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa9027.htm.

[8] [2010] FWA 5713. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa5713.htm.

[9] [2011] FWA 6230. Available at: https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa6230.htm.

Workers Rights In 2022, What does this mean?

Workers rights are changing.

I reviewed our google statists, looking for trends in workers rights and and noticed that A Whole New Approach have over 550,000 enquires have clicked on our web sites in the last few years, this is the net result of people searching just over 35 million key words that we have advertised. An extraordinary amount of search’s. What are these words?, what does it mean in todays workplace? and what are the trends for the future?. And finally how does it effect your work place?

Its certainly a changing world, we are in, workplace are changing rapidly, you cannot fight it, be part of it, thats the challenge, what do workers rights mean today.

The Universal Declaration of Human Rights tells us this. The UDHR protects our dignity—our inherent value and worth. It commits us to ensuring “just and favorable conditions of work.” Honoring workplace dignity advances that commitment. And with people spending at least one-third of life at work, work then becomes a major source of dignity in our lives—or a place where it is at real risk of violation.

Jeffrey Siminoff is Senior Vice President at RFK Human Rights.

Work is very important to most of us, the enjoyment that this can bring, the benefits are numerous, it give us purpose to our lives more than we realize. Like anything in life you have to work at it, to get the best possible outcome. If its not working for you, give us a call, discuss how you can enjoy your work, work with dignity, we have some pages worth a read to avoid the toxic work culture that you may be subjected to.

The question of employees rights are particularly relevant at the moment over mandatory vaccinations, health orders, the increasing size of state police forces, used to implicate / enforce government programs.

Others issues that have more prominent are wages theft, unpaid hours in the professional services field, (before you would just do this to get ahead) interns working for free, worker exploitation in the supply chains around the world. More people are demanding to know where their goods are made and the conditions of the workers that made them. Gender quotas are back on the agenda, is this fair?, we all want a more diversified work force. Females, older people, people of colour need opportunities, how to implement this is still controversial.

The rights of workers as to the green credentials of the companies they are working for, is now being discussed. Do workers have rights to insist on recycling as a workplace right?. The future is both challenging and bright, how you position yourself as a individual for the future is the challenge. Australians work one the longest work weeks in the world, this needs to change it effects our family life and effects us both mentally and physically. How do we do this and still remain competitive in the world economy?

Want to contribute to the discussion?, the debate?, your welcome, maybe send us a email. (mediate@awna.com.au). We are A Whole New Approach P/L, voted by our clients as leaders in workplace advice and representation at the Fair work Commission for unfair dismissals, general protections, forced resignations, amongst others. Diversity in workplace, equal rights, sex discrimination issues, we would like to hear from you. Looking for a lawyer, try us first. We are leaders in workplace community engagement, research and advocacy. All states, NSW, Qld, Vic, Tas, SA, WA.

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Procedural Fairness is needed in Dismissals

Have You Had Yours?

Procedural Fairness is needed in Dismissals, don’t let the employer bully you out, stand for what’s right

Procedural Fairness is needed in Dismissals, what does this mean? Procedural fairness in unfair dismissal cases is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself. Procedural fairness is one of the factors that the Fair Work Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable.

Procedural Fairness is needed in Dismissals can take many forms, such as whether an employer has followed their own procedures in dismissing an employee, whether the employee had an opportunity to explain their side of whatever happened, being able to seek advice or have a support person available at a meeting and making a decision to dismiss an employee on a suitable disciplinary penalty based on all relevant information, such as warnings and disciplinary action.

Although the Fair work Commission may find that there was a valid reason for dismissal, the dismissal may still be held to be harsh, unjust or unreasonable given any procedural flaws in the dismissal process. The following cases illustrate that dismissal decisions may fall apart without procedural fairness, depending on the gravity of the alleged misconduct, and thus employers need to take active steps to ensure they follow all of their policies and procedures when dismissing an employee and conduct the workplace investigations in a sensitive, confidential and fair manner.

Theft and Fraud – Valid Reason but Dismissal Unreasonable and Unjust

In Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd,[1] Commissioner Cambridge held that the employer’s finding of serious misconduct in respect to the allegation regarding the applicant failing to properly record and receipt the cash provided in respect to the purchase of the New Balance shoes, has established valid reason for the dismissal.[2]

However, Commissioner Cambridge held that the manifestly erroneous approach adopted by the employer when dealing with what has subsequently been established to be both serious misconduct and significantly less serious misdemeanours, has meant that there was not proper basis to justify the summary dismissal of the employee.[3]

The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal.[4] The summary dismissal of the worker was held to be unreasonable and unjust.

Disrespectful and Inappropriate Behaviour – Valid reason but Dismissal Unjust

In Gregory Gibbens v The Commonwealth of Australia (Department of Home Affairs),[5] Commissioner Williams found there was a valid reason for dismissal, observing the employee’s behaviour “was in each of the four instances disrespectful and inappropriate”.

However, the Commissioner found that the dismissal was unjust, because “at no stage did [the employer] specifically warn [the employee] that further instances of disrespectful and inappropriate behaviour when dealing with passengers could result in his employment being terminated”.

Sexual Harassment – Not Unfair Dismissal Despite Flawed Procedure

In Kevin Boyle v BHP Coal Pty Ltd,[6] the employee made a joke at the company in front of three other employees, including two females. The joke was sexual in nature, saying words to the effect of, “if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally”. After BHP’s investigation, including a meeting with management to discuss the allegations, BHP decided to terminate his employment for “unacceptable conduct” in breach of BHP’s policies in place to regulate employee conduct.

The employee sought reinstatement. Although he accepted that his joke was inappropriate, he submitted that his dismissal was in breach of BHP’s ‘Guideline to Fair Play Policy’ (the Fair Play Guide) because:

  • BHP failed to inform him of all the reasons for his dismissal
  • that he should have been given an opportunity to respond to all of the BHP’s concerns
  • that BHP failed to consider alternative disciplinary outcomes to dismissal and failed to consider his positive employment record
  • that he expressed remorse for his conduct

BHP argued that there was valid reason for dismissal, particularly because the employee caused offence to the two female employees, his conduct amounted to “unlawful sexual harassment” and he contravened the BHP’s well-established policies and procedures.

Commissioner Hunt held that “[BHP] expects its employees to abide by [its] numerous policies, but its own senior management have a complete lack of knowledge as to the application of the Fair Play Guidelines, policy of [its own] creation”. BHP was also found to be applying the Fair Play Guidelines in a “flawed and prejudicial” manner and did not make a “holistic evaluation” of the employee’s conduct and subsequent remorse. The Commissioner found that BHP dismissal of Boyle for a one-off joke was unjustified even though the conduct was in breach of BHP’s workplace policies, Business Code of Conduct or Charter Values.

Controversially, the Commissioner further found that while there are steps taken to reduce the risk of sexual harassment in the modern workplace, the Australian values of larrikinism and a sense of humour should still be valued qualities so long as it does not seriously adversely affect others. Following this decision, BHP disagreed with this assertion indicating, “We are of a different view. This behaviour is detrimental to culture, performance and the mental well-being of our broader workforce. Ongoing acceptance of this behaviour would downplay its corrosive effects and would disincentivise active reporting.”

Nevertheless, the Commissioner ultimately found that Boyle should not be reinstated to his former role because of his “repetitious slur” against the two female employees and his attempts to “downplay his misconduct” by making unsubstantiated allegations against the two female employees that they were engaging in sexualised talk, which led to him to making the joke. The Commissioner held that the false assertions against the two female employees, was “reprehensible” as well as “insulting, malicious and humiliating”.

Nevertheless, the Commissioner dismissed the unfair dismissal claim, notwithstanding with procedurally deficiencies. Thus, in the context of unfair dismissal, the gravity of the misconduct (particularly in sexual harassment claims) may render the procedural flaws insignificant in comparison.

Procedural Fairness is needed in Dismissals, what are the Key Takeaways?

What is apparent from the above cases is that the outcome of a matter can turn on the procedures followed by an employer when responding to such behaviour. Numerous cases have shown that despite having a valid reason for dismissal, deficiencies in the process can lead to a remedy being granted – including in some cases reinstatement. Nevertheless, depending on the gravity of the misconduct (particularly in sexual harassment claims), procedurally deficiencies may still render the dismissal harsh, unjust or unreasonable.

With discretion and the option to reinstate at the hand of a Fair work Commission member, it is vitally important for employers to have all their ducks in a row. This includes having up to date policies, procedures and workplace training, and if responding to inappropriate workplace conduct, a thorough investigation and show cause process, including giving due consideration to mitigating factors.

If you haven’t procedural fairness, given “a process that fair” or the aussie acronym “given a fair go”, then you may be able to lodge a unfair dismissal claim or a general protections claim, make the call, 1800 333 666 its incumbent on the Employer to get this process right. You don’t have to explain why you should keep your job, its the Employer has to explain as to why you shouldn’t.

Procedural Fairness is needed in Dismissals

It is all a bit confusing, we know what, it is our task to listen to you, analyze the situation and give you the best possible advice, we will not let you down.

Get Your Procedural Fairness today!, not happy?, concerned? Call A Whole New Approach P/L today, we are not employment lawyers we are the nations leading workplace advisors, we are here for you, free advice, honest advice, prompt advice. all Fair work Commission matters, including unfair dismissals, we work in all states, Victoria, NSW, QLD, Tas, SA, WA, NT. Looking for a lawyer, call us first, explore your options.

Confused?, help is on its way, make the call, its free! 1800 333 666

[1] [2016] FWC 5141.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] [2018] FWC 4150.

[6] [2020] FWC 1080.

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