Employee Rights

Employee Rights

Negotiating Hard Bargaining or Extortion: Using Threats.

Negotiating-Hard-Bargaining-or-Extortion-Using-Threats.

Negotiating Hard Bargaining or Extortion: Using Threats.

Always negotiate from a position of strength, your entitled to put your best foot forward. However don’t go too far, sometimes frustrations boil over and people say things they don’t mean, gets them into various degrees of trouble, or it sounds like a threat, and matters that should settle don’t. You end up dismissed or worse end up as a police matter or in a trial.

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. 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 negotiating, argued that the employer sought to coerce her to abandon her claim under the Fair Work Act 2009 (Cth). This was 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-negotiation
Tough negotiating, don’t over play your hand, many employees think “they will never get rid of me”, well they did, employers will only put up with so much. Or some employers will give ground in the short term then make plans to get rid of you. ie, redundancy, set you up with a dismissal, frustrate you into a resignation when its more convenient for them. The way I put it to clients negotiating is a black art, some have the skill, most don’t.

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. 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-from-a position-of-strength
Negotiate with a smile on your face, be confident, self assured, you have lots to say that’s for the benefit of both side. Its got to appear both sides are winners, then both side are grinners, it doesn’t always work out that way, however its better than going into a negotiation appearing to be whiner, negative.

“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. 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. Therefor 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.

Determining “without prejudice” is privileged

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]

unfair-dismissal-evidence
Be careful of the detail, “the devil is in the detail” as the saying goes. Sometimes your very happy with the outcome and forget the finer details. Give us a call, it cost nothing, we have negotiated some 16000 outcomes, take advantage of that experience.

When Privilege does not apply to negotiating

Thus, privilege does not apply where one party exerts unfair pressure upon the other during negotiations. 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. 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.

reaching-out-for-help
Always get advice. We are not all equal in negotiations

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. Negotiating properly is a considerable skill. At A Whole New Approach Pty Ltd we are not lawyers but extremely skilled and experienced negotiators.

Want help in resolving your workplace dispute?, discuss your employment rights, give us a call. We can also represent you in lodging a unfair dismissals claim or general protections claim. All matters relating to Fair work Australia (FWC), give us a call. Your welcome to get free advice on 1800 333 666 We work in all states. Victoria, NSW, QLD, SA, WA, Tas, NT

Articles similar to Negotiating, Hard Bargaining or Extortion: Using Threats.

An article that you may be interested in, “negotiating with your employer” click here

Find out how much is your case worth, click here

Maybe consider representation, think about it, for more information, click here

Employees silence-aggressive negotiation or blackmail, click here

Negotiating with your employer, get what you want, click here

Citations


[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

support-person
Support persons cannot advocate on behalf of the employee, be careful the support person doesn’t get you into more trouble, their too aggressive, swear, get emotional, inappropriately challenge the employer

Support Person the Rights and Role

Many employees ring us enquiring about should they have a support person. I generally say yes, its the best opportunity to try and save your job. To save you from the consequences you face from being dismissed. However in some cases the employer has already made up their mind to dismiss the employee. The Employer is merely going through the veneer of the procedural process to avoid a successful unfair dismissal claim. Always build your case. Protect your rights, think of the comes you want and work towards that. A support person is part of your game plan. Support Person the Rights and Role is important reading.

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
Support-Person-the-Rights-and-Role
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.

Unfair dismissal under s387 of the Fair work act

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. However 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.

Explanatory Memorandum to the Fair Work Act

A support person is not an advocate

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.

workers-rights-in-the-workplace
Don’t be “ganged up on”, if the employer wants to bring the whole HR team, just to intimidate you, a large retailer is very good at this ploy. If need be slow the process down, your entitled to representation, a support person and the time to be able to do this. Getting confused where all this going in the workplace, give us a call, you need to know your rights.

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.

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.

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

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. 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. 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. 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.

Support Person the Rights and Role

If you have been dismissed or your facing dismissal 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.

unfair-dismissal-justice
We understand its stressful times, pressures from the workplace, your family, that’s what we are here for. Keep your self respect, you want fair outcomes, justice and compensation.

Conclusion to Support Person the Rights and Role

If you have any questions regarding the “role of a support person”, call us for a chat. If you have been dismissed. Subjected 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. AWNA is the nations leading workplace advisors, we have our “finger on the pulse” for you. Any Fair work Australia issues, any diversity in the workplace issues, termination of employment, been sacked, whatever, call us, workplace advice is prompt and confidential.

Informative article, Support Person the Rights and Role

An article on workplace investigations that may interest you click here

Workplace or criminal investigation, click here

Workplace investigation, can I go no comment, click here

Unfair dismissal cases, click here


Workers Rights In 2022, What does this mean?

Workers-Rights-In-2022-What-does-this-mean?

Workers Rights In 2022, What does this mean?

Rights are changing all the time. Read on, get the latest updates. Know your rights, protect yourself.

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 give us purpose

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.

employee-silencing-have-rights
Don’t be silent about your rights

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

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?

Or are workers rights stuck in the past and only concern themselves about award wages, the national wage case, unfair dismissal type issues is the question. Has the paradigm shifted from just worrying about wages, to more holistic workers rights and conditions of more what effects the planet and worrying about what’s left behind for their children, the next generation? What’s the answer?. Its a very individualistic thing, will it end up like most elections where at the end of the day self interest prevails.

Workers Rights laws

Workers-Rights-In-2022-What-does-this-mean?
You do not have to put up with stress, you have workers rights, don’t be forced to resign, dismissed unfairly
  • Not be harassed or discriminated against (treated less favorably) because of race, color, religion, sex (including pregnancy, sexual orientation, or gender identification ), national origin, disability, age political beliefs.
  • Receive equal pay for equal work.
  • Receive reasonable accommodations (changes to the way things are normally done at work) that are needed because of their disability or religious beliefs, if required by law.
  • Expect that any medical information or criminal history that they share with their employer will be kept confidential.
  • Report discrimination, participate in a discrimination investigation or lawsuit, or oppose discrimination (for example, threaten to file a discrimination complaint), without being retaliated against (punished) for doing so.

Not covered by legislation that I believe requires urgent attention is domestic violence, social origin (where you live, some companies will not employ you if your from a poor area etc). Being a Vegan (it is a belief) is become a area of increased focus

Conclusion

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 Australia and 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.

Have a questions, have a concern, give us a call, its free 1800 333 666, its confidential

An article on small business rights and dismissal code, click here

Workers rights and redundancy, click here

Workers rights, what are they?, click here

Your employment rights in the pandemic, click here

Workplace whistleblowing, click here

Procedural Fairness is needed in Dismissals

Procedural-Fairness-is-needed-in-Dismissals
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

Fairness and process Have You Had Yours?

Procedural Fairness is needed in Dismissals, what does this mean? Process and 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 it decides if a dismissal has been harsh, unjust or unreasonable.

The 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.

Valid reason

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.

Procedural-Fairness-is-needed-in- Dismissals
There is zero tolerance of this behaviour in the workplace. Its not considered funny. And the defense is everybody’s taken it out of context, you say it, you weir it.

Theft and Fraud – Valid Reason but Dismissal Unreasonable and Unjust

In the unfair dismissal case of Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd. 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.

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 misdemeanor’s, has meant that there was not proper basis to justify the summary dismissal of the employee.

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. 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). 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”.

workplace-harassment
Some behaviour is down played to its only harassment. However this is unacceptable in the workplace regardless. There are many dismissals ending up as claims in the Fair work Commission, arguing over what is harassment.

Sexual Harassment – Not Unfair Dismissal Despite Flawed Procedure

In Kevin Boyle v BHP Coal Pty Ltd. 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”. His comments were 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.

Procedural Fairness is needed in Dismissals

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.

Humor and larrikinism is ok, as long it does effect others

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 humor 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. His attempts to “downplay his misconduct” by making unsubstantiated allegations against the two female employees that they were engaging in sexualized 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”.

Unfair v dismissal claim had procedural deficiencies

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.

burnout-avoid-it
If you workplace is getting difficult to deal with. Your burnout is due to harassment, inappropriate behaviour, call us to discuss your options. We are here for you.

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). Procedural deficiencies may still render the dismissal harsh, unjust or unreasonable.

Reinstatement

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 Australia and Fair work Commission matters, including unfair dismissals. We work in all states, Victoria, NSW, QLD, Tas, SA, WA, NT. Call us first, explore your options.

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

An article that is interesting reading, on warning processes. click here

How much is your unfair dismissal claim worth, click here


Workplace-or-Criminal-Investigation?
If your workplace makes you feel like a criminal, give us a call. Processes and warnings are supposed to be fair for all concerned.

Sick Leave A Workplace Guide

sick-leave-a-workplace-guide
If, your sick, your sick, dispute what your employer says, don’t be bullied. Listen to your doctor, not the employer. Dismissed, lodge a claim immediately.

Sick leave, a workplace guide

What does sick leave mean? This article is an important tool, in understanding your workplace rights. Now what is it? Sick and Carer’s leave (also known as personal leave or personal / Carer’s leave) lets an employee take time off. To help them deal with personal illness, caring responsibilities and family emergencies. Sick leave can be used when an employee is ill or injured. This illness could be physical or mental (i.e. stress leave). You cannot be dismissed for being ill or injured.

Time off to care for an immediate family

An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer’s leave but it comes out of the employee’s personal leave balance.

An immediate family member is:

  • a spouse or former spouse
  • de facto partner or former de facto partner
  • child
  • parent
  • grandparent
  • grandchild
  • sibling, or
  • child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner).

This definition includes step-relations (eg. step-parents and step-children) as well as adoptive relations. A household member is any person who lives with the employee.

How much sick leave should I have?

Under the Fair Work Act 2009 national system, permanent full-time employees are entitled to 10 days of paid personal/carer’s leave per year. Permanent part-time employees and permanent employees with variable hours are entitled to 1/26th of their ordinary hours in paid personal/carer’s leave. Employees roll over any unused time but will not ordinarily receive a payout for unused sick leave once they retire or leave the company (unless the employee’s Modern Award or enterprise agreement provides for differently).

Full-time and part-time employees accumulate sick and carer’s leave during each year of employment. It starts accumulating from an employee’s first day of work and is based on their ordinary hours of work. The balance at the end of each year carries over to the next year.

To calculate your sick and carer’s leave entitlements, use the Leave Calculator on the Fair Work Ombudsman website.

injured-and-ill
It is unlawful to be dismissed if your sick or injured. If your employer challenges you, send the doctors certificate immediately. Don’t have one?, get one. Send a photo of you injured if you can. Make it personal. Being dismissed is as personal as it gets.

What do I do if I need to take sick/personal/carer’s leave?

It is important to note that every employer has different policies and procedures regarding calling in sick. If you are unsure about your employer’s specific rules, there are a number of important tips that employees should be aware of when calling in sick or using their sick leave entitlements.

Ensure you call your employer as soon as possible.

This is an important step as it ensures your employer has sufficient time to either cover your shift (if applicable) or allows them to plan ahead in organising themselves and potentially allocating your duties and responsibilities to be carried out by other employees, where possible. For example, if you are unwell on the night before you are due to go to work, it may be wise to message/email your boss that evening and inform him that you are unwell and cannot attend work the following day. Alternatively, contact your employer first thing in the morning. The sooner they know, the better.

Let your team/colleagues know.

If you work in a team or as part of a team, it may be courteous for you to inform your team that you are unwell and will not be attending work. This is particularly important if you have a deadline coming up or you are in charge of completing particular tasks that may be time-sensitive. Nevertheless, it is important to keep your colleagues in the loop so they do not think that you are just leaving them stranded.

Explain your availability, if any.

Due to COVID-19 and working remotely, it is not uncommon for employees to be checking their emails or completing work from home. If you are too sick to go into work (i.e. exhibiting cold or flu symptoms) but you still feel that you could potentially complete some work at home, inform your employer accordingly.

Follow up if your able to, or as soon as you can

Once you are ready to return to work, ensure you follow up with your employer to ask them whether you need to provide any documentation, i.e. a medical certificate for your sick leave or to claim your entitlements. Keep in touch with your Employer, sometimes this is not easy, don’t end up with dismissal for abandonment of employment, or a resignation by the employer because they cannot find you or haven’t heard from you. Sometimes Employers seize on these sort of issues to justify your dismissal, they just want to get you “off the books” for taking to much sick leave, your seen as an inconvenience to them.

sick-leave-don't-be-bullied
Don’t be bullied or harassed into working from home. You may want to help out of your feeling ok, its up to you.

What can my employer do? Can they punish me?

If an employee is sick, there is not much an employer can do. However, if an employer has reason to suspect that an employee is abusing their personal/carer’s leave, it’s important you document their behaviour.

Keep a record of when the employee calls in sick including dates, times, and reasons for the absence. As an employer, you can request evidence from an employee to support their reason for calling in sick – for example, a medical certificate. Generally, a doctor’s certificate has to be taken at face value. That is, if a doctor says the employee is too ill to work, then they’re too sick to work. Although an employer can challenge a medical certificate, the circumstances for doing so are rare.

For instance, an employer may be able to challenge a certificate because it appears fraudulent. If an employee fails to provide requested evidence to support their time off work, they are not entitled to be paid for the absence. However, employers should treat lightly when poking and proving employees for further detail regarding their sick leave or their illness. An employer can discuss their concerns with the employee and potentially take disciplinary action. (It’s important to note that the employer must also give the employee a reasonable timeframe to produce evidence).

Serious Misconduct

Some employers will dismiss you for serious misconduct. While you are away they go looking for past incidents, issues to justify not getting you back. You have been a bully, you were inappropriate towards female staff. You say well why hasn’t anybody previously come forward? The employer responds that’s because they have all been too scared while you were here to come forward. Be careful, its logical the longer your off work the more it becomes a problem. Particularly in small business where they want/ see it as they have to move on.

getting-the-vaccine-and-flu-shot
Keep the employer informed, try and maintain the relationship. Don’t end up dismissed through miscommunication.

Can I be dismissed or receive a warning for calling in sick?

An employee is no longer protected from being dismissed (even if they provide evidence) if: the total length of their absence due to illness or injury is more than 3 consecutive months or a total of more than 3 months over a 12-month period over that period they’ve only taken unpaid leave, or they’ve taken a combination of paid and unpaid leave.

Employees who take a period of sick leave that is paid the whole time are protected from dismissal regardless of how long they’re on leave. However, employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by:

  • making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
  • making a general protections claim if the reason for the dismissal is another protected reason, or
  • Lodging a claim under a state or federal anti-discrimination law.

In short, an employer may have grounds to terminate / dismiss an employee for calling in sick. A dismissal involving absence from work and whether this is justified, can be risky and it is best to seek professional advice on such cases. You cannot stay away from your workplace for ever, be aware of this. You may be eligible to lodge a unfair dismissal claim, or a general protections claim. If your employer has terminated/ sacked/ dismissed, bullied, harassed you, in your employment because of your sick leave or personal leave, please call us on 1800 333 666 for a free and confidential discussion.

Sick Leave A Workplace Guide

I hope this article was helpful to you. We are A Whole New Approach P/L, we are not lawyers but the nations leading workplace advisors. Give us a call, we are here to help, we keep it real, honest, prompt. We are bases in Victoria, but we work on a national basis.

Anything to do with Fair work Australia, workers rights, abandonment of employment, casual employees call us now.

Call 1800 333 666

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Are You Dismissed When You Are Not Given Shifts?

Are-You-Dismissed-When-You-Are-Not- Given-Shifts?
If the employer withdraws your hours, take you off rosters, ability to work, you may be dismissed.

Are You Dismissed When You Are Not Given Shifts?

Termination of employment means that you have either been dismissed / fired or have resigned. However, approximately 19% of the Australian workforce does not have that clarity as they are casuals.[1] Tasmania, South Australia, Queensland and Western Australia have the highest percentage of casual workers. This may be attributed to tourism being a dominant industry.[2] Therefore, this question is not easy to answer. In fact, the Fair Work Commission does not even have a straight forward answer for this on their website and benchbook

If dismissed, do I qualify for a claim?

By definition a casual worker is one who is employed with no set hours or roster. However, the Fair work Commission distinguishes casuals into two categories. A regular casual employee (one who works on a regular and systematic basis with a clear pattern or roster of hours) A casual employee who works on an irregular basis.

If you are casual who works on an irregular basis then you have to consider how often your shifts are and whether this period of time between shifts is out of the ordinary or not. As an irregular casual employee, you are not eligible for an unfair dismissal claim. Even if you have worked the minimum period of service (12 months for a small business, 6 months for a business with more than 15 employees).

casual-employment-opportunities
Most casuals are looking for more work. Be flexible, don’t be dismissed for not fitting in. Although some casuals its really about life style choice. This is particularly the case in the gig economy.

Regular and systematic

If you are a casual employee who has a pattern of regular and systematic hours, and have not been given shifts. You are entitled to know why this is occurring. The first step is to figure out why you have not been given any shifts, have you been given a warning?, Or have they run out of work?

The term “regular” does not mean, you have had to have worked every day of the week. As long as it implies a regular pattern. Furthermore, “systematic”, is drawn from how the hours of work are allocated. Whether they are done with a roster or some kind of system, method or plan.

The Full Bench of the Fair work Commission, Vice President Lawler, Deputy President Drake and Commissioner Lewin in the unfair dismissal case of Shortland v Smiths Snackfood Co Ltd, defined the periods of service for casual employees as the following[3]:

“Each occasion a casual employee is engaged is a separate contract of employment. These contracts may be week to week, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement.

For the purpose of unfair dismissal, it is the period of service rather than the period of employment that is relevant. If the conditions of s.384(2)(a) are satisfied, then a period of service by a casual employee will count towards the period of continuous service.

Once continuous service is established, the employer or employee may only break continuous service by making it clear to the other party that there will be no further engagements.

For casual employees it is possible that some periods of service will meet the conditions of s.384(2)(a) and others will not.

Absence for illness or injury does not break a period of continuous service.”[4]

Vice President Lawler, Deputy President Drake and Commissioner Lewin

Reasonable expectation of continuing employment

The final aspect of whether a casual is to be considered eligible for an unfair dismissal is through the concept of “reasonable expectation of continuing employment. This is dependent on an individual’s circumstances, and is primarily an unsettled area of law. In unfair dismissal claim of Tilbrook v Willall Industries Pty Ltd,  a casual was employed for 2 years and 8 months.[5]

During this period of time, the casual had an 11 week period of unavailability. This was deemed by the courts as an interruption to the continuous service. However, they also found that the casual employment since that time, which had weeks without work for the employee, and this was held to be regular and systematic, as there was a reasonable expectation for the employee to have continued employment.

work-at-home
A lot of employees now want to work from home. There is no automatic right to this. Careful you don’t find the employee just starts to reduce your hours. Your not in the office so you don’t know what’s really going on.

Unfair dismissal eligibility test

The first question we ask our clients is “how long were you employed for?”. The Fair Work Commission is stringent with length of service when it comes to an unfair dismissal claim. If you were working for a business with less than 15 employees, it is considered to be a small business and you must have worked there for at least 12 months to be eligible to lodge an unfair dismissal application. If there are more than 15 employees, you have to have completed a minimum of 6 months service to lodge an unfair dismissal application.

You have been employed for 6 months or more (business with more than 15 employees) or 12 months (for a small business) on a regular and systematic basis. You have the same eligibility for an unfair dismissal claim as a part-time or full-time employee. You must have been dismissed at the employer’s initiative as per the Fair Work Act 2009.

As long as the hours have been regular and systematic, there is no minimum number of hours needed to work a week. This was demonstrated in the unfair dismissal case of Matthews v San Remo Fisherman’s Co-Operative. Where an employee who worked one hour a week, one day a week, satisfied the criteria of regular and systematic.[6]

Unfair dismissal rights

If your dismissed, you may not be eligible for an unfair dismissal claim. However you could have certain rights available to you in the form of a general protections claim. If you believe that you have exercised a workplace right (s 340 of the Fair Work Act 2009). Such as asking to have a shift swapped because you are unwell. Or have been discriminated against based on an accepted category such as sex, gender, race, family duties or nationality, and then lost shifts. This may constitute adverse action ( s 342 of the Fair Work Act 2009).

Unlike the criteria for an unfair dismissal application. A general protections application does not have a minimum period of service, nor do they distinguish between full-time, part-time and casual employees. The only category exempt from general protection claims are volunteers.

Remember: The Fair work Commission has a strict 21-day deadline from the last day of work for lodging claims. This includes weekends and public holidays.

Conclusion to “Are You Dismissed When You Are Not Given Shifts?”

If you feel that you have been dismissed because you are no longer receiving shifts from your employer. Give us a call. We are A Whole New Approach P/L, we are not lawyers, we are leading workplace advisors and representatives. Anything to do with the workplace, give us a call. Workers rights, employment rights, casual rights, probation issues, abandonment of employment, whatever.

Based in Victoria, we work on a national basis, NSW, QLD, WA, everywhere.

Call 1800 333 666

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Citations

[1] Australian Bureau of Statistics (2020), Insights into casual employment, occupation and industry, https://www.abs.gov.au/articles/insights-casual-employment-occupation-and-industry.

[2]Geoff Gilfillan (2020) ‘COVID-19: Impacts on casual workers in Australia- a statistical snapshot’, Department of Parliamentary Services, p. 5, https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1920/StatisticalSnapshotCasualWorkersAustralia

[3] [2010] FWAFB 5709

[4] Ibid.

[5] [2011] FWA 6300

[6] [2019] FWC 4877

Should your Employer say sorry? Apologize?

Should-your-Employer-say-sorry?
The word sorry, can be a powerful message. It can heal a lot of wounds

Should your Employer say sorry?

This raises the questions of “should you apologize at work?” and “how do you apologize professionally?” Lets work our way through these questions as well as the employers situation. If your going to apologize it has to be from the heart, it has to mean something to the other side. Be careful you don’t make a difficult situation worse by the lack of meaning in your apology. I do counsel you not to create a all or nothing scenario. You don’t want to end up dismissed or what may be essentially a battle of wills. I’m not down playing the value of the apology, but look at the bigger picture. Is the potential for dismissal worth it.

Apologize? Sorry, sorry, sorry, when should we say it?

You make a mistake in a civilized society, it is expected that you will apologise (sorry) to the wronged person. Everyone makes mistakes – even your employer or your boss. However, many employers steer clear of an apology. Refuse to apologise in any context as it implies fault and may expose them to some form of liability. However, this issue has been combated in many legal setting and enables employers to apologise to their employees without fear.

Apologies (sorry) and Admission of Liability

For instance, full apologies (including admissions of liability) given in relation to civil liability of any kind are protected from use in court in NSW, Queensland and ACT. Apologies in any civil proceedings are protected in South Australia. In Victoria, only partial apologies in proceedings involving death or injury of a person are protected (s14J Wrongs Act 1958).

These legislative schemes operate to allow employers to apologize or express their regret following an employee suffering a workplace injury. However these statements are inadmissible as evidence in proceedings. They are excluded from being considered in determining an employers’ liability for common law damages.

Legislative amendments serve as encouragement for employers to maintain their ongoing relationship with their employees. An employer can reach out to an employee and apologise for what they have suffered in an attempt to provide support. To show compassion. Without fear that they are compromising their position in relation to their liability for any potential claims.

tempers-are-rising-avoid-dismissal
Tempers are rising, avoid it, then you don’t have to apologise, don’t end up dismissed. Always the possibility of everybody goes down in flames. Avoid it. In my life I have hated apologizing, but once its done, I’m over it. I’ve moved on. No regrets, no sulking, no carrying a grudge, I know I’m the better person.

Apologizing in Employment Law Settlements

Many unfair dismissal and general protection cases, an apology (sorry) can play a major part in the settlement of a case. (be aware of the legislation that doesn’t not allow for an apology as part of the remedy) Almost invariably in such cases, the applicant or complainant believe that s/he is entitled to an apology because of misconduct of some kind by the employer. Dismissal from your employment is a stressful event, even when it is anticipated and/or warranted.

Whether you deem your dismissal unfair, possibly discriminatory or otherwise unlawful. The disruption, embarrassment, and injured self-esteem that result from employment dismissal. This possibly will produce anger that may stand in the way of settlement. An applicant or complainant may believe that no amount of money would suffice to undo the damage to their self-esteem.

Or that a settlement must be commercial large enough to punish the employer. On the other hand, an employer made often feel defensive and angry about the allegations of discrimination. The unlawful or unfair treatment. Employers are often of the belief that an employee’s termination is justified and the idea of an apology may be repugnant.

Difficult to overcome these emotional aspects

In either case, it is difficult to overcome these emotional aspects of employment disputes and dismissals. Thus, if a dispute is to be successfully resolved in the interests of both parties. We must consider ways of overcoming these emotional barriers. This could be through an apology. Maybe a statement of regret. Everybody has to save face, a win win situation. Not a win lose, because you might be the one losing, avoid it.

Benefits of an Apology

Apologies don’t work in every case, and in some cases, they may be necessary but not sufficient to resolve the unfair dismissal or general protections case. In some cases, an apology may not be appropriate at all. Many cases in which an apology might be useful, it is worth considering how an apology can help the parties overcome the emotional barriers to settlement.

Aforementioned, employers should not fear that apologizing to their employees admits any sort of fault or liability in lieu of any claim they may initiate. Nevertheless, it is important that employers and employees understand what an apology is and how it may benefit an employment relationship or even dispute.

The main benefit of an apology is that it encourages some moral introspection on the part of the person giving it. It requires them to internalize, to look at their behaviour and how they have treated the other person. Even if they do not admit fault. The very acknowledgement of the other person’s hurt or injury and showing regret that they feel that way, is valuable.

to-be-treated-fairly-and-not-be-dismissed
To be treated fairly, be the better person. Sometimes apologies are about ego, having the last say, avoid this. Careful how you push / box your employer into a corner.

Should your Employer say sorry? Apologize?

This shared acknowledgment can help heal the relationship and create a more positive dynamic. In addition, if the parties involved are going to continue working together, it can set the tone for their relationship in the future. Even if an apology is not the sole resolution on the table, it can ease the path to settlement of the dispute. There can also be a financial benefit as an apology can reduce ongoing animosity which in turn may lessen the time taken to resolve the issue.

Conclusion to “Should your Employer say sorry? Apologize?”

“Should your Employer say sorry? Apologize?”. I hope this article has been of some benefit for you, and moves the conversation along for you. Talk to us, at A Whole New Approach P/L if we can assist. If your facing dismissal because your won’t apologize when its not your fault. Or you have to apologize is completely over the top, a form of humiliation or your deserve an apology, give us a call. You do not have to put up with being bullied or harassed, explore your options, it cost nothing to make the call. 1800 333 666. We work in all states including TAS, SA, ACT

AWNA are not lawyers, but leading workplace advisors, give us a call. We keep it real, confidential, honest, prompt. AWNA are leaders in workplace commentary, justice in the workplace, diversity in the workplace. All Fair work Australia matters. Probation concerns, workers rights, constructive dismissal issues, serious misconduct, general protection claims call immediately.

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Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

deal-or-no-deal

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement. Has in recent cases (unfair dismissal and general protections) before the Fair Work Commission have explored the notion of “buyer’s remorse”, in regards to undoing settlement agreements reached during conciliation. People settling stressed, not thinking normally, or assume the Fair work Commission is simply there for them.

Unfair dismissal or general protections claim lodged

Once a claim is lodged with the Fair work Commission – e.g. an unfair dismissal claim (F2 Application). Or a general protections claim (F8 or F8C Application). The FWC will hold a conciliation conference, if the parties agree. During this conciliation conference. Each party can negotiate in an informal but in a rigorous manner and explore the possibility of reaching an agreed settlement. Now the question stands. If a settlement agreement is reached at conciliation, does either party have the right to challenge and undo the settlement agreed upon?

Challenging the settlement

There have been three recent cases in the Fair work Commission. Where the employee has challenged the settlement reached at conciliation. In one, the deal was undone and in the other two, the employee was held to the terms of the settlement that he had signed.

In the unfair dismissal case of Tao (Tara) Zhang v Spring FG Accounting Pty Limited,[1]  the employee and employer reached an “in principle” settlement on the day of the conciliation conference. The conciliator sent both parties an email confirming settlement had been reached. Further reminded the parties to finalize, sign and exchange a settlement agreement.

The employee’s solicitor then sent a proposed “Deed of Release” (the document recording the terms of the deal) to the employer’s solicitor. This version for the deed contained a broad “mutual release” clause. Which would have operated so that both parties released the other from all claims relating to the employment and the termination (i.e. a full release).

The employer sent back some amendments to the deed including one limiting the release only to claims relating to the unfair dismissal allegations. The employer did not want to release the employee from her post-employment contractual obligations. The employee argued that the employer’s one-sided release had not been discussed. Or agreed upon during the conciliation and the employee insisted on a “customary full release”. It is importantly noted that standard Fair work Commission Deeds of Release (i.e. Terms of Settlement) contain standard mutual terms such as mutual confidentiality, mutual non-disparagement and a mutual non-release.

deal-or-no-deal
Employee under pressure to settle

The matter erupted into a dispute

The matter erupted into a dispute about what was said by whom at the conciliation conference. The employee’s lawyer asked the FWC to set the matter down for arbitration on the basis no agreement had been reached. Commissioner Bissett then had to decide whether the settlement stood or the matter should be referred for arbitration.

The decision Commissioner Bissett looked at the notes made by the lawyers during the conciliation conference. She found that there was no evidence that the scope of the mutual release (one way or the other) had been discussed or agreed. The Commissioner held that there had not been a “meeting of the minds”, so there could not be a binding agreement. This meant the unfair dismissal application remained unsettled and so it was referred to arbitration.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

In the unfair dismissal claim of Michael Souter-Robertson v Achieve Corporate Services Pty Ltd.[2] The parties had not reached an agreement in the initial conciliation conference. In turn the parties were directed to file materials for a listed arbitration. The matter was listed for arbitration by Deputy President Asbury. Additionally it was listed the matter for a secondary conference on 14 June 2016, prior to proceeding with arbitration. This was done in hopes of allowing the parties another opportunity to explore options for resolution to resolve the matter. The parties reached an in-principle agreement at this secondary conference and Deputy President Asbury sent out the terms of settlement to both parties.

On 1 July 2021, the Applicant’s representative wrote to Deputy President Asbury indicating,

Upon careful consideration of his position, the Terms and the evidence, the Applicant has decided that he is unwilling to accept the Respondent’s offer of settlement and would like the matter set down for hearing. While we have not previously encountered a similar situation and are therefore uncertain of procedure, in the circumstances of Deputy President Asbury presiding over the Conciliation Conference, the Applicant has instructed that we make application to the Registrar for the hearing to be conducted by a different Commissioner.”

everybody-for-themselves
You should be respected in your unfair dismissal conciliation. In reality its everybody for themselves

The Applicant’s representative did not inform the Respondent’s representative of their position.

Given the dispute between the parties, the matter was referred to Deputy President Gooley to determine whether there was a binding agreement to settle the unfair dismissal claim Thus, the Commission has the power to dismiss the application as it has no reasonable prospects of success.

Deputy President Gooley found that there was in fact a binding agreement to settle the unfair dismissal claim and upheld that the Applicant should not be permitted to resile from the agreement made because he had “buyer’s remorse.”. Deputy President Gooley also highlighted that both parties were represented at all times. Indicating the importance of legal representatives advising their clients regarding the binding nature of settlement agreements.

In general protections claim of Chris AKA Christopher Lawless v Australasian Association of Philosophy.[3] The employee had signed the settlement document and applied to the Fair work Commission to undo his settlement and for a certificate to be issued in order to pursue his general protections claim.

The reasons the employee gave as to why the settlement should be undone included that he was suffering from post-traumatic stress disorder. The employer was represented while he was not, he was not properly prepared for the conciliation conference. The Commissioner overseeing the matter had provided misleading information about the cost of taking his matter to the Federal Court and there was insufficient time for him to consider his position.

The employee had lodged his general protections claim with the FWC and then the employer raised jurisdictional objections which were heard by Commissioner Platt. After the jurisdictional hearing on 4 March 2021 and before the Commissioner decided those issued, he invited the parties to participate in an “off the record” conciliation conference with him.

In principal agreement was reached

An “in principal” agreement was reached on 4 March 2021 and the matter adjourned until the next day. On 5 March 2021, the employee confirmed to Commissioner Platt that he had received a copy of the deed that the employer’s lawyer had prepared overnight. He summarized it and advised that he was of sound mind and agreed to settle his claim on the terms in the deed. He provided his ex-employer with a signed copy on 8 March 2021. However, the employee failed to lodge the paperwork to discontinue his claim. When the Commissioner’s associate prompted him to do so on 21 April 2021. He argued the settlement was not binding and he wanted to proceed with his claim.

Commissioner Platt made a decision responding to the employee’s arguments and concluded that the employee had not been pressured or rushed during the Commission proceedings. He was of sound mind. He had indicated that he correctly understood the terms of the settlement he was entering into. Commissioner Platt said that “buyer’s remorse” was not an appropriate basis to undo a properly founded settlement. Commissioner Platt refused to issue a certificate for the Federal Court and closed the Commission’s file.

conciliation-conference-for-unfair-dismissal
Some conciliation conferences feel like this. You’ve been unfairly dismissed now this

Agreements in conciliation are binding

These cases serve as a caution to parties that any in-principle agreement reached during conciliation conferences at the Fair work Commission (and in other tribunals, commissions or courts), may be held to be binding and they cannot be undone.

Nevertheless, it is important to utilize the conciliation conference and address all necessary issues. Such as specific terms of settlement which pertain to the agreement. Aforementioned, the parties should discuss the Deed of Release in the conciliation conference. Ensure there is an agreement in regards to any non-standard terms. That either party may wish to incorporate (i.e. one-sided release, any post-employment obligations or restraints of trade).

If you are participating in a conciliation conference at the Fair work Commission, make sure that you are prepared. That you understand the terms that you will accept and can communicate these clearly. These cases demonstrate the importance of obtaining proper legal advice. Review potential representation through the aid of lawyers/paid agents/representatives before making a decision and accepting a deal. You may ask permission from the Fair work Commission (and in other tribunals, commissions or courts) to hold the file open for a few days. While you obtain the necessary legal advice regarding the offer put forward. Taking these steps will ensure that parties are making the most informed decision as undoing settlement agreements is evidently challenging.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

I hope the article was helpful to you. Negotiation is not a game, particularly when it involves your future. Employees say “oh I can do that myself”. I think to myself, its not working out to well for you so far. Your dismissed, the employer is lying to you, well good luck. We are A Whole New Approach P/L, we are not lawyers, we are based in Victoria. However we work on a national basis. We are considered the nations leading workplace advisors. You should get advice, Be professionally represented, be smart about what your options are.

Your welcome to get free advice from us call 1800 333 666 . All unfair dismissals, general protections issues. Anything to do with the workplace we are happy to give you advice or suggestions on what to do next. Workers rights, employment rights. Looking for a lawyer, call us first. You can see from reading the article we know what we are talking about.

reaching-out-for-help
Get help, get advice.

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Serious Misconduct in 2022 Workplaces

serious-misconduct-in 2022-workplaces
Serious misconduct is the worst type of dismissal. It causing reputational damage, it restricts your ability to obtain further work.

Serious Misconduct in 2022 Workplaces,

The term ‘serious misconduct’ is something that is thrown around by employers way too much in the employment sphere. You may have heard it during a dismissal or when your employer is threatening your employment. ‘Serious misconduct’ is actually a legal term that will allow for employers to terminate you. It’s on that basis and bars you from receiving your normal entitlements when you exit your employment. Serious Misconduct in 2022 Workplaces is important reading.

For example, when you are correctly dismissed for this reason, you will be stripped from your entitlements to annual leave, long service leave, notice period and in the case a company is going through a downsizing or restructuring, any redundancy pay you might have been owed but for the alleged serious misconduct. In many cases this can be allot of money.

Reduce cost by saying it was serious misconduct

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

This is particularly relevant with the economy in recession at the moment, caused by the COVID 19 situation. Many employers are turning performance related situations into serious misconduct scenario’s, to avoid the proper payouts. At the moment one of the major words searched on our web site relates to situations around serious misconduct. Its actually quite disturbing. Employees are getting now dismissed for issues employers couldn’t have careless about or maybe told don’t do that again.

Thus, it is very important for you to know and determine whether your dismissal was likely for ‘serious misconduct’ or for mere misconduct. Serious Misconduct in 2022 Workplaces is more relevant than ever before.

office-violence-is unacceptable
One act, or brief meltdown is enough to be dismissed, be careful. Go to HR, go for a walk, go home if you have to. Its not about who wins the fight. Its about your ability to continue to pay the bills. Take care of your family. Protecting your reputation.

How does gross misconduct differ from misconduct?

How does misconduct differ from ‘gross’ misconduct? The difference lies in the severity of the act and its effect or the potential on the business. Now you understand there is a crucial difference. The Fair Work Commission decisions are very clear on the very high bar employers must meet to satisfy ‘serious misconduct’ of an employee. Some examples are provided, but are not limited to these:

Misconduct may include acts such as taking sick leave when you’re actually well. Additionally altering a doctors certificate to include additional time off, or having continually bad timekeeping. While misconduct is considered to be unacceptable and can result in disciplinary action, it is not sufficiently serious to justify instant dismissal. Length of service, or other mitigating factors come into account. ( for more information on unfair dismissal process, click here)

Examples of gross misconduct

Examining general areas of gross misconduct at work, could include:

Fraud, theft, dishonesty, inappropriate gains

  • stealing petty cash, unauthorized borrowing, false claims
  • taking office supplies for personal use outside of work. Taking stationary home for your kids, large amounts of photocopying. (school books, manuals for partner, running own business)
  • stealing from colleagues, going through their lockers, access their locked desk.
  • fraudulently claiming expenses
  • making gain from industrial espionage, selling or passing on customer leads, manuals, price list.
  • falsifying work documents, implying you’ve done all the work. Coping a colleagues work and claiming it as your own
  • using work premises for fraudulent or personal use. Maintenance of your car in their workshop. private parties in work premises.

Physical violence and offensive behaviour

  • fighting and physical assault. Including threats or implied of physical harm.
  • bullying to the extreme. Or bullying and you knew it was deliberate.
  • harassment, sexual or otherwise. Sex discrimination, racism and mistreating employees with disabilities or are more vulnerable.
  • rape, sexual assault, sexualized social media activities
  • intimidating and threatening behaviour
  • acting in an overly aggressive manner
  • horseplay that may lead to injury or damage of items in the workplace. Sexual type comments with double meanings.
serious-misconduct-threats-should-lead-to dismissal
Threats to harm employees is unacceptable. Everybody is entitled to feel safe in the workplace.

Gross negligence and breaching OH&S laws and policies

  • not wearing the required safety and protection clothing
  • not handling dangerous chemicals with sufficient care
  • removing safeguards from equipment
  • not safeguarding pregnant employees or those at greater risk in the workplace. (employees with disabilities). Deliberate non consideration of older employees, or young employees who are inexperienced or lack training. and it was known. (particularly if it was lead to a injury or physiological damage.
  • Isolation breaches of machinery (very common)

Willful damage to the workplace or items in the workplace

  • acts of gross negligence that lead to damage, such as stacking crates in an unsafe, unchecked manner, and
  • acts of willful damage, such as arson, driving trucks dangerously.
  • Forcing employees to undertake tasks knowing they were unsafe or will cause harm.
  • being incapable to work due to intoxication or being under the influence of drugs, but still turned up
  • taking drugs at work
  • buying or selling drugs at work.
  • Have strangers turning up at work to buy or you suppling drugs. (transactions in carparks, out the front). More commoin than most people realize. This in itself creates dangerous circumstances of criminal behaviour. With criminals now coming to the workplace.

Being drunk or under the influence of drugs at work could also lead to other categories of gross misconduct such as physical violence or negligence of health and safety.

serious-misconduct-when-you-lose-it-there-is-no-going-back
Employees do this stuff, they just lose it. Since the pandemic, employees are more fragile than before. They are jumping to conclusions, make implied threats. We know this we get the calls. Equally employers are the same, lose it, sack employees and then slowly realize what they have done. The amount of employees through unfair dismissal claims, seeking their jobs back has increased. Everybody involved has the realization, they should not have lost their job to begin with.

Damage to the business

Any of these acts of gross misconduct could cost the business money, damage its reputation as a good employer and honest business, and lead to legal action. The employer is entitled to protect their business. all of the above can lead to instant dismissal, misconduct dismissal or serious / gross misconduct dismissal.

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

Fair Work Regulation 1.07 defines serious misconduct

Fair Work Regulation 1.07 defines serious misconduct. Serious misconduct is conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. It is also conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.

Serious misconduct includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract.

Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’. A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment.

Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.

Fair work Commission Benchbook

No misunderstanding what serious misconduct means

I have published the regulation so there is no misunderstanding of what it all means. Of course every workplace is different. What’s considered serious misconduct in one place may not apply in another. Serious Misconduct in 2022 Workplaces more relevant than ever before.

workplace-practices-are-important
I want to finish the article on a positive note. Be the employee striving to be the best you can be. Look for the positives. Stay away from the negatives. There is something in the universe where positive things happen to positive people. Negative things happen to negative people. We all know the employees who always have a drama in their lives. Get with a company that strives to do their best, look after its people. forget the rest. I know its not that easy, but it can be done.

Conclusion; Serious Misconduct in 2022 Workplaces

I hope this posting of Serious Misconduct in 2022 Workplaces has been informative for you. Call us at 1800 333 666 to receive a free consultation on whether we think your dismissal may not have been fair or unfair. We are A Whole New Approach P/L. We are not employment lawyers, but Australia’s leading workplace representatives. Get honest, prompt advice that is free. All states, NSW, Victoria, Qld, SA, WA, Tas, ACT Any Fair work Commission matters, including unfair dismissals, workplace investigations, bullying, probation, redundancy, constructive dismissal. Whatever call us, everything is confidential.

Articles similar to serious misconduct in 2022 workplaces

Another article on serious misconduct and entitlements that may assist you, click here

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(this case demonstrates, serious misconduct is not straight forward)

Negotiating With Your Employer, Get What You Want

Negotiating-With-Your-Employer-Get- What-You-Want
Arguing with your employer usually ends in tears, ie dismissal, resigning, abandonment of employment. Be smarter than that. Read on, see what you can do.

Negotiating With Your Employer, Get What You Want

Negotiating With Your Employer, What You Want, its a skill, worth obtaining. When there is more than one person involved, actions are almost always preceded by negotiations, whether that’s with friends, family or colleagues, your managers, human resources. The question isn’t whether you negotiate, but how well do you negotiate? But still avoiding dismissal or being forced to resign

Pay rises, terms and conditions of employment, dismissals, resignations, relocations, promotions, holidays, warnings, the list is endless Negotiation is critical for any group venture or project, be it a company outing or an email campaign, but in the workplace your ability to negotiate is equal to your success and happiness on the job. It’s a skill and an art, involving some practical tips and methodologies, but also a great deal of psychological insight.

Avoid “All or Nothing Scenarios”

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

Negotiation Skills in Negotiating With Your Employer

Having the right set of skills will help you in any endeavor, and the same is true with negotiating. If you are armed with the following skill sets, then negotiating will be more fruitful. There are “different ways of skinning the cat”, as the saying goes

Be prepared

Never go into a negotiation blind. Without context, no level of negotiation skills will help you. Therefore, know the product, service or whatever the subject of the negotiation may be. Don’t ever assume the other side will do the right thing.

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

negotiating-is-not-a-contest
Negotiating is not a contest, avoid being dismissed through the process

Listen

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

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

Be Dispassionate

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

Commutate

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

Collaboration

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

trying-to-figure-out-what's-going-on
trying-to-figure-out-what’s-going-on.-in the negotiations

Be a decision maker

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

Negotiating tactics in Negotiating With Your Employer

Having the skills to negotiate is only the beginning. Now comes the act of negotiating where you must put those skills to work. Here are some tactics to employ. Be unreadable, uncertainty in a professional sense could bring better outcomes.

Don’t think in terms of winning

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

Think of the other person

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

Don’t assume clarify

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

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

disputes-end-up-a-tug-of-war
Negotiations can be tough, know your case / claim well

Don’t make threats

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

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

What you need to remember

1. Be clear about the issue.

2. Know your objective.

3. Adopt a mindset of inquiry.

4. Manage the emotions.

5. Be comfortable with silence.

6. Preserve the relationship.

7. Be consistent.

8. Develop your conflict resolution skills.

9. Watch your reaction to thwarting ploys.


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

dismissal-and-stress
In negotiations don’t get distracted. Dismissal and stress play a role where you end up

Know how to begin.


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

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

Negotiating With Your Employer, Get What You Want.

We are A Whole New Approach P/L, we are not lawyers, but the nations No 1, workplace advisors. Unfair dismissal, general protections, workers rights, probation period issues, anything to do with the workplace. The Fair work Commission, FWC, Fair work Australia ring us for free advice. We are honest, prompt, confidential, all states, NSW, Vic, Qld, Tas, SA, WA

Call 1800 333 666

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What is your general protections claim worth, click here

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