Misusing Company Accounts – Fair work Commission Rules Theft is Theft and You Can be Dismissed

The definition of serious misconduct, under Fair Work Regulation 1.07, includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract. Thus, stealing from your employer or engaging in theft, may constitute a valid reason for dismissal. But what if the value of the theft is relatively small or insignificant? Should I be honest and admit to the theft if I am guilty?

Untruthful Employee Rendered Dismissal Fair

In the unfair dismissal case at the Fair work Commission Lynelle Ajax v Credit Union Australia Ltd,[1] an employee was accused of “financial misconduct” after she had misused the employer’s coffee account to pay for 24 coffees for her personal consumption. The employer is a member-owned credit union and had a coffee account set up for their members. If a member wanted a tea, coffee or other beverage, the employee was required to go nearby to the local café and place and order for the member, which would be charged to the employer’s account. The use of the account was limited to these ‘business situations’ and it was not in place for staff to utilize for themselves.

In June 2020, the employer was provided with an invoice from the café and it appeared high considering all of Australia was in some form of lockdown due to COVID-19. Upon further inquiry, the employer alleged that the employee had misused the account to purchase 24 coffees for her personal consumption, valued at $101.70.

The employee denied using the Employer account for anything other than business purposes, except for one instance where she admitted to charging the account because the barista made the incorrect coffee and she gave it to a colleague. Further, the employee disputed the allegations and provided in response that the transactions were not for her personal coffee as she preferred to drink piccolo lattes (which was distinct to the regular coffees charged to the account), that the members continued to visit the branch during the COVID-19 shutdown and that she would offer coffees to the members being served and those waiting outside due to capacity limits.

Despite the employee’s response and defence, the employer found that based on the investigation, the allegations were substantiated and the employee was terminated for serious misconduct, specifically theft.

Fair work Commissioner Hunt held that the employee provided untruthful evidence in an attempt to clear her name in the financial industry and therefore she was not a credible witness. The employee was found to have had a “cavalier attitude to the coffee account” and that on the balance of probabilities, she had jointly misused the account and this justified dismissal.

Commissioner Hunt also indicated that the employee’s conduct struck “at the heart of her duties” to the Employer to be honest in all transactions involving the use of company funds. Working in the financial industry required a high level of integrity and that the industry cannot afford to have an employee be untruthful over transactions. Accordingly, Commissioner Hunt was satisfied that there was a valid reason for dismissal given the conduct of the employee, the employee’s untruthful statements and the nature of the financial industry requiring a high level of honesty.

This case demonstrates that there is a high level of trust and integrity required from employees in positions which require them to handle money. Nevertheless, being untruthful about potential misconduct will inevitable cause a loss of trust and confidence in the employment relationship. This is evinced in the case of David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia,[2] where Virgin ground grew were accused of stealing two packets of cigarettes. The cigarettes were stolen from a cargo shipment which was damaged and partially open after a flight. Both staff members involved denied stealing the cigarettes and continued to deny doing so.

Fair work Deputy President Sams subsequently held that the employees had stolen the cigarettes and pointed to their deception and dishonesty specifically in the following findings:

“[116] In my view, Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted. Obviously, neither applicant pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than ~$50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight. Whether it was a relatively small value theft or something more substantial, is really not the point. Theft is theft – no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission and in Mr Thomas’ case, his self-serving concoction of invention, I might have put their conduct, particularly in Mr Faamausili Ailua’s case, down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’. I am satisfied the allegations against the applicants have been proven. I turn now to the matters the Commission is required to take into account under s 387 of the Act.”[3]

Where there is no dishonesty on the part of the employee whom is accused of theft, the Fair Work Commission may look at their conduct favourably. Nevertheless, the value of the theft is not the point.

Employee Admits to Stealing – Dismissal Rendered Harsh and Unfair

In the unfair dismissal case of Adam Jolley v Cannon Hill Services Pty Ltd,[4] an employee was dismissed for theft after he stole a can of Coke from the vending machine located on site. When confronted about his actions, there was no deception or dishonesty on the part of the employee and he admitted to taking a can of coke with a likely value of $2 or $3. The employee did indicate that he had lost money many times to the same vending machine over a period of time without recompense.

Ultimately, Fair work Commissioner Simpson held that there was a valid reason for dismissal for theft but overall, the dismissal was harsh given the mitigating circumstances. The employee was honest, forthcoming, expressed remorse immediately and had a long and unblemished period of employment with the employer.

It is clear that there is no minimum threshold for conduct to constitute theft – theft is theft no matter the value of the theft. The important lesson for employees is to remember to be honest, forthcoming, transparent and cooperative with their employer when such allegations arise. Being dishonest or untruthful will inevitable destroy the trust and confidence between an employee and their employer.

[1] [2021] FWC 3165.

[2] [2019] FWC 4464.

[3] Ibid at [116].

[4] [2020] FWC 2404.

40+ Ways to be Fairly Dismissed and How To Avoid It

  • Serious misconduct

Serious misconduct is defined by Regulation 1.07 of the Fair Work Regulations 2009 (Cth) as wilful or deliberate behaviour by an employee that is inconsistent with the contract of employment, or as conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer’s business. Serious misconduct is a valid reason for dismissal. Its becoming the employers dismissal option of choice, they then don’t have to pay notice or Long Service Leave, saving lots of money terminating you, be careful. (there is a blog below specifically on this)

  • Poor performance

Employees may be dismissed for poor performance, as they are unable to perform the inherent requirements of their role, you must be subject to a process that is fair, A lot of employers have adopted the approach of “3 strikes and your out”, but not necessarily so, its got to be applicable to your workplace, employment contact, and award (if your covered)

  • Health and safety breach

For example, not complying with safety procedures or wearing personal protective equipment. The latter was deemed a valid reason for dismissal in Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski [2011] FWAFB 1436. Isolation breaches, not following shut down protocols in mines and industrial settings, is very common reason for dismissal, follow the rules, better off with a performance issue that can be argued or sorted out, than out the door for a serious breach

  • Constantly late to work

Consistent lateness may be a valid reason for dismissal on the basis of misconduct, as this willful behaviour may be inconsistent with the continuation of the contract of employment. I understand why employees don’t turn up on time, can be a myriad of justified reasons. Being on time or not on time is habit forming, just get in early, relax, instead of eventually being dismissed, when really you don’t have to.

  • Fighting or aggressive behaviour

If an employee was fighting another employee or exhibited aggressive behaviour, this is likely a valid reason for dismissal. However, the Fair Work Commission considers all circumstances surrounding the incident, and may find the dismissal harsh, unjust or unreasonable in certain situations. Don’t start the fight, walk away, keep your job, i understand the “spur of the moment” stuff, someone’s in your face, etc., but protect your job is more important. What Employer wants to give a job to someone who lost their previous job for fighting

  • Poor behaviour

Poor behaviour or a negative attitude impacting colleagues, customers and supervisors was a valid reason for dismissal based on conduct in Kolodka v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2012] FWA 7828. Try and be positive, smile, some days its not easy, life can be a struggle. There is a connection between negative attitude and poor physical and mental health outcomes, you don’t need this outcome, yet alone lose your job for it.

  • Excessive swearing

If an employee repeatedly uses inappropriate language or swears in the workplace, this may be a valid reason for dismissal in some circumstances. However, if the workplace culture is rife with swearing (and is tolerated by the employer), it may not be a valid reason for an employee to be dismissed on that basis. Moreover, it may also depend on the language that was used and to whom it was directed.

  • Frequently returning late from lunch or other breaks

Repeatedly returning late from lunch or other breaks, without valid reason, may be a valid reason for dismissal. Get back on time, let your Employer know if your running late, don’t come back smelling of alcohol, if you’ve out for someone birthday etc. Employment relationships can be like a marriage , the breakdown is usually over little things, avoid them in the workplace

  • Failing to meet the inherent requirements of the role

If employees fail to meet the inherent requirements of their role, they may be dismissed on the basis of their capacity. This is particularly relevant around physical injury. The Employer must reasonably adjust / facilitate for your injury, if they are able to. Employees go off on sick leave for months, even years and assume their job will be there when they want to come back, this is not always the case, Employers are entitled to run their business, staff their business. Mental Health is another difficult area in relationships to the workplace.

  • Theft and Fraud of company property

Theft and Fraud is a form of serious misconduct, which is a valid reason for dismissal. The Fair work Commission has zero tolerance of the excuses, “i only stole a little bit”, “I was going to bring it back”, “i only borrowed it”, “i forgot to take the money out of my pocket because i was busy”. Now cases are not always that straight forward, “keep yourself tidy”, the saying goes

  • Time theft

Time theft is when employees receive pay for hours that they did not actually work (or for tasks they did not complete). It may occur where an employee clocks on that they started work earlier or finished later than they actually did. Time theft is likely a form of serious misconduct, and therefore may be a valid reason for dismissal. Many employees don’t see it as theft or serious, however Employers and the Fair work Commission do

  • Bullying

If an employee has bullied another employee, the company may find that they behaviour does not comply with the company code of conduct, and this may be sufficient to warrant dismissal. You cannot bully anybody these days, be careful how you act around and what you say to fellow employees.

  • Discrimination towards another employee

Employees may not discriminate against another employee. This means that employees must not subject colleagues to different or less favourable treatment on the basis of a particular personal attribute, such as age, gender, religion, ethnicity, disability or pregnancy. For example, in Anderson v Thiess Pty Ltd [2015] FWCFB 478, an employee was found to have been validly dismissed for having sent an email that vilified persons of the Muslim faith, which caused offence.

  • Sexual harassment

Sexual harassment involves any unwelcome sexual advance, unwelcome request for sexual favours, or any other unwelcome conduct of a sexual nature, where a reasonable person in the circumstances would anticipate that other person would be offended, humiliated, or intimidated. If an employee sexually harasses another employee, this constitutes serious misconduct and is valid reason for dismissal.

  • Sexual assault

Sexual assault consists of non-consensual sexual contact, and the contact can be on any part of the body through clothes. If an employee sexually assaults another employee or a customer, this would constitute serious misconduct and would be a valid reason for dismissal.

  • Physical assault

For example, in Dewson v Boom Logistics Ltd [2012] FWA 9027, an employee was validly dismissed for serious misconduct for physically assaulting a colleague. Do not invade a co employees space, don’t get emotional, walk away, be the better person.

Drinking At Work

If company policy prohibits the consumption of alcohol during work hours, including on a lunch break, if an employee does so, it is likely there is a valid reason for their dismissal. See Selak v Woolworths Limited [2008] AIRCFB 81; Agnew v Nationwide News, PR927597.  

Following Reaonable and Lawful Directions

Employees can be dismissed for failing to follow a reasonable and lawful direction of management. What this means can be in “the eyes of the beholder”, what’s reasonable to one, is not to the other. Seek clarity, give us a call to discuss (1800 333 666)

  • Unauthorised absence from work

Repeated unauthorized absences from work was deemed to be a valid reason for dismissal in Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski [2011] FWAFB 1436.

  • Excessive time off work

If an employee has taken excessive leave, either consecutively or routinely, the employer may validly dismiss them if they believe the employee is no longer able to perform the inherent requirements of their role.

  • More than three months’ sick leave

If an employee is on sick leave for under three months, they are protected from dismissal. However, if an employee has been on sick leave for over three months, partially or fully unpaid, they are no longer protected from being dismissed, even if they provide evidence that they require continued leave. Three months is calculated as either three consecutive months or a total of more than three months over a twelve month period.

  • Attending work under the influence of alcohol or drugs

Attending work under the influence of alcohol or drugs would likely constitute serious misconduct, as it is a risk to the workplace, and would therefore likely be a valid reason for dismissal.

  • Recklessly operating machinery

In IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070, an employee who was dismissed for recklessly causing a forklift accident (where one forklift collided with another) was found to have been dismissed for a valid reason.

  • Distributing pornography

For example, in Flanagan v Thales Australia Ltd t/a Thales Australia [2012] FWA 6291, employees who accessed pornographic material on work email accounts were found to have been dismissed for a valid reason. Don’t access risky

  • Inappropriate use of social media

Making disparaging or threatening comments about the company or colleagues on social media, regardless of whether the account is private, may constitute a valid reason for dismissal. In O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311, an employee was validly dismissed for serious misconduct in making threatening colleagues towards a colleague on Facebook. My saying is is this “if you don’t have something to say nice about somebody, don’t do it, but if you have to, don’t put it in writing”

  • Threatening colleagues

Threatening colleagues would constitute serious misconduct (and thus be a valid reason for dismissal), because such conduct causes serious and imminent risk to the health or safety of a person.

  • Threatening company reputation

Conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business is deemed serious misconduct, and therefore is a valid reason for dismissal. I see this with some employees threatening their employer that they will go to the press. Both sides have a mutual obligation to be good and considerate to each other”

  • Sabotaging client relationships

Sabotaging client relationships would likely cause serious and imminent risk to the reputation, viability or profitability of the employer’s business, and would therefore be deemed serious misconduct.

  • Deliberate damage to company property

Deliberately damaging company property would be serious misconduct because it is wilful or deliberate behaviour that would be inconsistent with the continuation of the contract of employment, but may also affect the viability or profitability of the employer’s business.

  • Repeatedly not complying with the company dress code

If an employee has been instructed to comply with the dress code but refuses to, this may be a valid reason for dismissal on the basis that they refused to comply with a lawful direction of their employer. For example, in Woolworths Limited (t/as Safeway) v Brown, PR963023, a butcher was found to have been validly dismissed for refusing to remove his eyebrow ring at work. Another example is wear safety boots, they can be uncomfortable, however it becomes a OH&S issue

  • Blackmail or extortion

Blackmail and extortion are indictable criminal offences, and therefore would constitute serious misconduct warranting dismissal.

  • Breach of privacy

In some industries, breaching privacy may constitute serious misconduct warranting dismissal. Reading Emails or accessing emails that are not yours. A more controversial area, is access employees social media, private settings, etc

  • Breach of a confidentiality agreement or employment contract

Breaching a legal document like a confidentiality agreement or employment contract may mean the employee cannot be trusted or amount to serious misconduct.

  • Giving company information to a competitor

Giving company information to a competitor would likely not only damage the employer’s business, but also lead to a loss of trust in the employee. Therefore, this would be a valid reason for dismissal.

  • Falsifying or manipulating business records

For example, if an employee falsified accounting or disciplinary records, or email correspondence, this dishonest conduct would likely be a valid reason for dismissal on the basis of serious misconduct. Falsifying your resume to get the job to begin with.

  • Falsifying personal information or credentials

If an employee falsified personal information about themselves, such as their credentials, qualifications or work experience, this dishonest conduct could lead to a loss of trust in the employee and therefore a valid reason for dismissal.

  • Failing to disclose recent criminal record

If an employer asked about an employee’s criminal record during the recruitment process, but that employee was dishonest, this could constitute serious misconduct. Moreover, some criminal convictions or offences may be relevant to the employee’s ability to perform the inherent requirements of their position, such as if they are working with children.

  • Coercion

Coercion involves taking or threatening action that would be unlawful or unconscionable, intending to deprive someone of their choice to do or not do something. As coercion is against the law, this would constitute serious misconduct and would therefore be a valid reason for dismissal.

  • Deliberately billing clients incorrectly

Deliberately billing clients incorrectly could lead to reputational or financial damage for the employer to rectify the employee’s behaviour, and because the conduct is dishonest it would likely constitute serious misconduct, warranting dismissal.

  • Repeated deceptive or dishonest conduct

Employee dishonesty may constitute misconduct, and may therefore be a valid reason for dismissal – APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230.

  • Constantly refusing to perform overtime hours, when it is expected of the role

Some jobs may expect that its employees complete work on overtime hours, and a constant refusal to do so may mean the employee is failing to meet the inherent requirements of their role.

  • Mismanagement of staff

If a manager is inept at managing its staff, causing damage to the business, this may be a valid reason for dismissal, provided that the issue is serious enough and causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business.

  • Loss of trust in employment relationship

If an employee has been dishonest or there has otherwise been a loss of trust in the employment relationship, the employer may have reason to dismiss the employee if unrecoverable.

  • Inappropriate out-of-hours conduct relating to employment

For example, inappropriate conduct at a work function or messaging colleagues inappropriate content out-of-hours would likely constitute serious misconduct.

  • Negligence

If an employee has been negligent in carrying out their employment duties, this may be a valid reason for dismissal.

  • Causing significant financial loss to the company

Causing significant financial loss to the company would be serious misconduct because it is conduct that would cause serious and imminent risk to the reputation, viability or profitability of the employer’s business.

  • Dishonesty in a disciplinary interview

For example, in Streeter v Telstra Corporation Limited [2008] AIRCFB 15, an employee engaged in sexual intercourse in a hotel room in front of other employees. The other employees complained to the company and an investigation was commenced. The employee was dismissed for having been dishonest in the disciplinary interview and investigation, meaning that the employer felt that they could no longer trust the employee to be honest in the future. This was found to be a valid reason for dismissal.

  • Gambling

It may be against the company policy for its employees to gamble, such as if the employees work at a casino or other betting agency. Such a breach of policy would therefore be a valid reason for dismissal. For example, in Atfield v Jupiters Limited trading as Conrad Jupiters Gold Coast, PR925334, a manager of a casino was validly dismissed for serious misconduct for placing a TAB bet within the casino complex while working.

  • Improper use of work information

An employee cannot improperly use information or resources through their employment. For example, in Applicant v Australian Federal Police [2012] FWA 1352, an employee was found to have been validly dismissed for requesting a colleague investigate her ex-husband’s finances, which was in breach of the company code of conduct.

The list is not extensive, i hope this helps, we publish allot of blogs about unfair dismissals, general protections, constructive dismissals, but its far more fun / less stressful to keep a job, than to lose it and the stress of losing money and finding a new one, you are always welcome to call us and discuss your situation, and get representation. 1800 333 666

The Fair work Commission Award an Employee Maximum Compensation For Flawed Investigation Process

Procedural fairness is one of the factors that the Fair Work Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable under the Fair Work Act 2009 (Cth). Procedural fairness is concerned with the decision making process followed by a decision maker when deciding whether to take disciplinary action against an employee. Thus, the way in which a workplace investigation is conducted, forms part of the procedural elements that are assessed. The term “procedural fairness” is often used interchangeably with “natural justice” and generally means that an employee is given the opportunity to defend themselves and raise any mitigating circumstances before a decision is made.

In order to conduct a successful workplace investigation, which is procedurally fair, the employer must ensure they have followed their own procedures when deciding to dismiss an employee, they must allow the employee an opportunity to explain their side of the story and they cannot refuse an employee seeking advice or having a support person available at any meetings. The employer must not skip or rush any part of the process or workplace investigation and they must not form an early view about the employee’s guilt or innocence.

Severely Flawed Workplace Investigation

In the recent decision of unfair dismissal in New South Wales, the Fair Work Commission (FWC) was critical of an employer who adopted an “entirely unjust and unreasonable” disciplinary process after a flawed workplace investigation. In Robertson v Imperial Mushrooms Pty Ltd,[1] the Sydney employee was terminated for serious misconduct after a knife went missing. A Senior Supervisor on duty conducted an inventory check after the conclusion of work for the day. The Supervisor then called the employee and enquired about the missing knife. The employee suggested she may have mistakenly placed it in a tub where the knives were washed and despite their efforts, the knife could not be located.

On the following day, the employee was contacted by her manager regarding the missing knife but as she was off work for the day, she did not respond. The employee presented for work the next day and she found the missing knife, which had been placed in the wrong spot. The employee notified her manager that she located the knife and resumed her duties.

Later that day, the employee was called into a meeting where she was questioned about the knife and its subsequent discovery. The employee was stood down and provided with a letter to attend a meeting two days later. The employee attended this meeting and shortly after commencement, the employee was handed a pre-prepared letter of dismissal. The employer argued the incident caused a serious and imminent risk to the health and safety of a person, it caused serious and imminent risk to the reputation, viability, or profitability of the employer’s Sydney business, and it also represented the employee’s failure to carry out a lawful and reasonable instruction.

Fair work Commissioner Cambridge held that the employer had mischaracterized the employee’s unintentional, negligent actions as serious misconduct, which could not represent a valid reason for dismissal.

In regards to the procedural fairness, it was held that the employer did not provide the employee with an opportunity to respond, please her care or show cause as to why her employment should not be terminated, before making the decision to terminate her employment. The final meeting was merely a perfunctory, mechanical event in which the employee was being told of her dismissal and then provided with the pre-prepared termination letter. Even if there had been some opportunity for the employee to have been heard at the meeting, there was no purpose served in hearing from the employee because the decision to terminate her employment had already been made. This was held not to constitute an opportunity to respond. The entire workplace investigation was held to be flawed and unfair.

Given the employer is a Sydney business of some significant size, with a dedicated human resources management team, Commissioner Cambridge indicated it was somewhat surprising that the employer implemented an erroneous workplace investigation that avoided any proper show cause process. Further, it was unfortunate that the employer conducted a severely flawed workplace investigation upon which it drew hasty conclusions which involved the predetermined dismissal of the employee.

Commissioner Cambridge ultimately decided that the employer gave little or no consideration to disciplinary measures other than dismissal of the employee. The employee made an unintended but serious mistake, and her unintentional, negligent action could have appropriately resulted in some form of disciplinary action other than dismissal.

The dismissal, which was mischaracterised as serious misconduct, meant that as a disciplinary measure, dismissal was grossly disproportionate to the level and nature of the alleged misconduct. The dismissal was held to be harsh, unjust and unreasonable. The employee was awarded six months’ compensation, the maximum amount available under the Fair Work Act 2009 (Cth).

Gravity of Misconduct – Rendered Flawed Workplace Investigation Insignificant

The notion of procedural fairness becomes increasingly important in cases where there is clearly a valid reason to terminate an employee, but the workplace investigative procedure is flawed and unfair. A flawed investigative procedure may result in a finding by the Fair Work Commission that although there was a valid reason for the termination, it was still harsh, unjust and unreasonable because of the lack of procedural fairness. In some instances, however, procedural flaws may be rendered insignificant in comparison to the gravity of the misconduct and the reason for dismissal. This was held by the Fair Work Commission in a Queensland unfair dismissal case.

In the unfair dismissal case of Kevin Boyle v BHP Coal Pty Ltd,[2] an 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 the employer’s workplace investigation, including a meeting with management to discuss the allegations, they decided to terminate the employee for “unacceptable conduct”. The employer 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 employer’s well-established policies and procedures.

The employee argued that the procedure in which he was dismissed, namely the workplace investigation, was greatly flawed as he was not notified of all the reasons for his dismissal, he was not given an opportunity to respond to all the concerns, the employer failed to consider alternative disciplinary action and did not consider his remorse.

Fair work 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”. The employer 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. Nevertheless, the Commissioner ultimately found that Boyle should not be reinstated to his former role because of his “repetitious slur” against the two female employees and his attempts to “downplay his misconduct”. These falsified allegations were sufficient to warrant a dismissal which was ultimately fair in all the circumstances, despite the procedural deficiencies and flawed workplace investigation.

Have concerns how your workplace investigation or pending investigation is being or will be conducted?, give us a call we are here to help, its complex, everybody’s circumstances are different, the goal is to either keep your job, lodge a dispute or get packaged out and avoid the Fair work Commission where possible. 1800 333 666

[1] [2021] FWC 1332.

[2] [2020] FWC 1080.

No Consultation Renders Redundancy Unfair Dismissal in Victoria

The COVID-19 pandemic has continued to have a significant detrimental effect on many Australian businesses. Consequently, employers are looking to cut costs wherever possible and thus, there has been an increasing number of redundancies this last year. Although most redundancy cases are for a genuine reason, a recent decision before the Fair Work Commission in Victoria has found that an employer’s failure to comply with their consultation obligations, rendered an employee’s dismissal unfair. This case has demonstrated the importance of proper procedure for redundancy and unfair dismissal claims in Victoria.

What is a case of Genuine Redundancy?

A dismissal is a case of genuine redundancy, where the employer has satisfied the three elements under s.389 of the Fair Work Act 2009 (Cth).

The first requirement under this section is determining whether the job is still available. If your job no longer exists or is no longer required by the employer, your redundancy is likely to be genuine. If your job is still available but there has been a restructure or downsizing, the Fair Work Commission will look to the remaining two factors in determining whether the redundancy is genuine.

The second requirement under this section is the employer’s obligation to consult with employees about the redundancy. The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements (which they often do) to consult about redundancy.

The third element that the employer must satisfy is whether it would have been reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise, or the enterprise of an associated entity of the employer. If the employer does not consult with an employee, then it is arguably that the reasonable steps have not been taken to redeploy the employee as no discussion took place and so no alternatives were assessed.

If the employer fails to satisfy all three of these requirements, the Fair Work Commission must then determine whether the dismissal was unfair.

COVID-19 Restrictions in Victoria No Excuse for Not Consulting

In Sposito v Maori Chief Hotel,[1] a Victorian employee was made redundant but argued it was in fact an unfair dismissal because she was misled into believing that the employer was permanently ceasing its operations. Instead, the employee alleged the employer had since hired two casual staff members to perform her duties.

In response to the first element under s.389 of the Fair Work Act 2009 (Cth), Commissioner Cirkovic of the Fair Work Commission held that the employee’s job was no longer required because of changes in the operational requirements of the employer’s enterprise. Whilst two former casual employees have since been re-engaged by the Respondent, it was found that these employees perform other duties and not those the employee completed.

In response to the second element under s.389 of the Fair Work Act 2009 (Cth), Commissioner Cirkovic of the Fair Work Commission held that the employer failed to satisfy their consultation obligations and thus, the dismissal was not a case of genuine redundancy.

In reaching this conclusion, Commissioner Cirkovic acknowledged the employee was award-covered and there was a requirement to notify the employee of major changes in the organisation that are likely to effect her employment. During the hearing, the employer admitted that they did not engage in any such discussions. The employer simply sent her the letter advising her of her redundancy, effective on the expiry of five weeks’ notice. The employer argued it was a “stressful period”, “unusual circumstances” and his belief that any conversation with the employee regarding her termination would be “emotionally charged”. Further, the employer argued that due to the restrictions associated with the lockdown, the employer was reluctant to contact the employee as they could not meet “face to face”.

Commissioner Cirkovic did not accept these submissions and held there was nothing preventing the employer from contacting the employee via telephone or arranging to speak to her via other means.

In response to the third element under s.389 of the Fair Work Act 2009 (Cth), Commissioner Cirkovic held that it would not have been reasonable for the employee to be redeployed, given the directors reasonably believed that at the time of the employee’s dismissal, they would be closed for the foreseeable future.

Commissioner Cirkovic then addressed the criteria under s.387 of the Fair Work Act 2009 (Cth), to determine whether the dismissal was harsh, unjust or unreasonable. It was acknowledged that determining a dismissal was not a case of genuine redundancy does not necessarily lead to a conclusion that the dismissal was unfair. Rather, the Commission proceeds to consider the unfair dismissal application on its merits.

As the reason for the employee’s dismissal was redundancy, there was no valid reason in relation to capacity or conduct. Consequently, opportunity to respond and previous warnings are not relevant. Commissioner Cirkovic did acknowledge the employer is a small business with no internal human resources expertise, which likely affected their approach to dismissing the employee.

Ultimately, Commissioner Cirkovic held that if the employer had complied with their consultation obligations, and engaged in discussions with the employee about their decision and potential measures to reduce its impact on her, the employee could have had further notice of the impending termination of her employment. It was held that the dismissal was not unreasonable or unjust however, the employer’s failure to comply with the consultation provision in the Award renders the dismissal unfair.

This case demonstrates the importance of not cutting corners in the dismissal or redundancy process. Utilising COVID-19 restrictions in Victoria as an excuse for why procedural fairness wasn’t afforded, is not an acceptable argument. If you have been made redundant by your employer, ensure that all the requirements have been satisfied otherwise, your redundancy may not be genuine and may constitute an unfair dismissal instead.

[1] [2021] FWC 700.

Employee Threatens to Stab Supervisor – Wins Unfair Dismissal Case in NSW

Threats of physical violence or actual physical assault, have also been considered serious misconduct and grounds for instant summary dismissal. Despite employers adopting a zero-tolerance to violence and aggression in the workplace, a New South Wales employee was found to be unfairly dismissed after a myriad of violent behaviour, including threatening to stab her supervisor.

Fair Work Regulation 1.07 defines serious misconduct as conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. This conduct may also be conduct that causes a serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business. Examples of serious misconduct include theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions. Given this definition, an employer can reasonably assume that a threat to stab a co-worker, falls under conduct that causes a serious and imminent risk to the health and safety of a person and warrants summary dismissal.

Aggressive Behaviour and Serious Misconduct

In Michelle Rawson v Mudgee Golf Club Ltd,[1] the employer summarily dismissed an employee, Ms Michelle Rawson, for serious misconduct after she threatened to stab her supervisor, behaved disrespectfully towards fellow employees and attempted to delete the employer’s Facebook page. The Fair Work Commission in Sydney determined that there was a valid reason to dismiss the employee for serious misconduct but due to the flawed workplace investigation, the dismissal was held to be unfair.

On 16 January 2020, a supervisor of the employer, Mr Rhys George, raised allegations against Ms Rawson that upon engaging in a conversation with her about food orders earlier that day, she became angry and threatened to stab him. Mr George and Ms Rawson had a strained and tense relationship and so a meeting was arranged between all parties on the following day. The discussions during this meeting were disputed by both employer and employee but the most significant aspect of contested evidence was whether, after initially denying that she had threatened to stab Mr George, Ms Rawson admitted to making such a threat, but that she downplayed the comments by stating that she had frequently used remarks of this nature. Nevertheless, no formalised disciplinary action was taken or documented by the employer after this meeting.

On 19 January 2020, a staff member had complained that Ms Rawson had treated her in a very disrespectful manner and had humiliated her. The employer made a written record of the detail of events. On the afternoon of 20 January 2020, Ms Rawson received an email that confirmed the earlier verbal advice of her suspension from duty and set out three allegations of misconduct. The allegations of misconduct related to inter alia, the stab threat incident of 16 January and the incident of 19 January. The suspension from the employment letter also advised that Ms Rawson was required to attend a meeting at 10 am on Friday, 24 January, at which time she would be provided with an opportunity to respond to the allegations of misconduct.

Ms Rawson responded to this email, denying the allegations in their entirety and submitting that she had been unfairly suspended. Ms Rawson obtained a medical certificate and provided this to the employer.

Ms Rawson remained on paid suspension/sick leave when on 5 February 2020, she received a letter via email which requested her attendance at the employer’s premises for a formal disciplinary meeting scheduled. The letter set out six numbered issues that were considered to represent allegations of misconduct that Ms Rawson would be provided with an opportunity to respond to. Relevantly, the six allegations of misconduct included the stab threat incident of 16 January, the incident of 19 January, and additional allegations including that Ms Rawson had attempted to delete the club’s Facebook account on 21 January 2020.

Ms Rawson and her support person attended this meeting and denied all six allegations of misconduct. Nevertheless, Ms Rawson received a show-cause letter on 10 February 2020 which stated three allegations of misconduct including, the threat to stab her supervisor, the Facebook incident of 21 January 2021 and the alleged breach of confidentiality. Ms Rawson was given until 5 pm on 11 February 2020 to respond but she did not receive this email and did not respond in the required timeframe.

Consequently, Ms Rawson received a termination letter at 5:33 pm on 11 February 2020 via email, confirming she had been summarily dismissed with immediate effect and without notice. The termination of employment letter relevantly stated that the applicant had been dismissed for serious and wilful misconduct involving “threatening to stab a fellow employee and attempting to shut down the Facebook site of the Golf Club.” Ms Rawson alleged she did not receive this email communication either.

Valid Reason Found – Still Unfair Due to Flawed Procedure

Commissioner Cambridge of the Fair Work Commission in Sydney held that the misconduct of the employee, which involved her unreasonable and aggressive workplace behaviour combined with conduct that intentionally sought to damage the business operation of the employer, was held to be serious misconduct that was plainly inconsistent with the continuation of employment and it established valid reason for the dismissal of the employee.[2]

However, the valid reason for dismissal was evaluated against significant procedural errors in the workplace investigation which were evident in the manner that the employer determined and implemented the dismissal of the employee.[3] The Fair Work Commission, as currently constituted, has frequently stated that communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided.[4] Thus, the Fair Work Commission held that in this case, the employee was not notified of the reason for her dismissal and was not given a proper opportunity to respond because of the email communication, which was arguably not received.[5] In any event, Commissioner Cambridge held that the proposition that the employee should respond to the show cause notice within 24 hours was inappropriate and unnecessarily onerous.[6]

Although the employer did not have management specialists or other expertise, human resource specialists or other experts should not be required to ensure that fundamental fairness is observed and the employer should have adopted an approach that provided the employee with natural justice.[7]

Ultimately, Commissioner Cambridge of the Fair Work Commission in Sydney held that although the employee was dismissed for a valid reason involving her serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the employee have rendered the summary dismissal to have been harsh and unreasonable. The employee’s dismissal had been found to have been unfair in this instance.[8]

Importance of Procedure in Serious Misconduct Dismissal

The case of Michelle Rawson v Mudgee Golf Club Ltd[9] before the Fair Work Commission in Sydney, demonstrates that despite having a valid reason for dismissal, deficiencies in the process and a flawed workplace investigation may still render the dismissal unfair. Even in the absence of a special human resources team, an employer will still be required to have basic common sense in regards to what is fundamentally fair. This includes putting forward the allegations to the employee, ideally in person or via phone/Zoom, allowing the employee to respond within a reasonable timeframe and a show-cause process that ensures fundamental fairness and natural justice.

If you wish to discuss your unfair dismissal or a flawed investigation, please contact 1800 333 666 and we can assist you in assessing your eligibility to lodge a claim.

[1] [2021] FWC 1171.

[2] Ibid at [87].

[3] Michelle Rawson v Mudgee Golf Club Ltd [2021] FWC 1171 at [87].

[4] Ibid at [74].

[5] Ibid at [75].

[6] Ibid.

[7] Ibid at [83].

[8] Ibid at [89].

[9] [2021] FWC 1171.

Freedom of Opinion in the Workplace – Can I express my offensive opinions? Should I be Dismissed For them?

In a recent decision before the UK Employment Appeal Tribunal (EAT), gender-critical beliefs were held to be protected philosophical beliefs under UK law. In Forstater v CGD Europe and Others,[1] the Applicant held gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. Thus, she believes that it is impossible for a person to change their sex, irrespective of any change that the person may make (whether by surgery, accident or illness, force of will, declaration, or otherwise). The Applicant considers that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not transphobic.

The Applicant engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and “transphobic”. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. The Applicant complained that she was discriminated against because of her gender-critical belief.

Under UK equal opportunity laws, religion or belief is a protected characteristic and defined as “any religious or philosophical belief” including “a reference to a lack of belief“. Initially, the employment tribunal found that the Applicant’s belief would “refer to a person by the sex she considered appropriate even if it violates their dignity and/ or creates an intimidating, hostile, degrading, humiliating or offensive environment.” The employment tribunal concluded that this approach was “not worthy of respect in a democratic society“.

The Applicant appealed this decision and the EAT overturned this initial decision.[2] The EAT held that the interpretation of the relevant sections of the UK equal opportunity laws, should be informed by Article 9 (the right to freedom of thought, conscience and religion) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights (“ECHR”). Thus, the EAT found that “a person is free in a democratic society to hold any belief they wish, subject only to some modest, objective minimum requirements“. The EAT acknowledged that beliefs akin to totalitarianism or Nazism, or espousing violence and hatred in the gravest of forms will fail the ‘worthy of respect’ test, because they have the effect of destroying the rights of others. Such beliefs are therefore excluded from protection under the ECHR.

While the Applicant’s gender-critical beliefs are offensive to some, and have the potential to result in harassment of trans people in some circumstances, they are still worthy of respect in a democratic society as they did not seek to destroy the rights of trans people.

This notion that philosophical beliefs are protected has been rejected in Australia. Nevertheless, these comments are unlikely to contravene Australian Federal or State anti-discrimination law.

Philosophical Beliefs Not Protected in Australia

Under Australian laws, gender-critical beliefs are only protected if they fall within the definition of “political opinion/belief”. Political opinion/belief discrimination is not unlawful under federal law however, it could be unlawful in the Australian Capital Territory, Northern Territory, Queensland, Tasmania and Victoria in some circumstances.

In order to establish gender-critical opinions as a political opinion protected under discrimination laws, a person would need to demonstrate that gender-critical opinions are more of a ‘political’ standpoint rather than a ‘personal’ matter and/or this opinion forms part of a religious belief which may extend to a philosophical belief as well. Philosophical beliefs on their own are not protected and thus it is unlikely that these gender-critical comments will fall under a protected attribute under Australian discrimination laws. Further, it is unlikely that these comments will amount to discrimination against those who found them offensive.

Although there is no Federal legislation or section in Australia’s Constitution enshrining a general right to freedom of expression, but it is well established and implied through common law. Further, such comments will only be considered discriminatory if they contravene the Federal or State anti-discrimination laws. The Sex Discrimination Act 1984 (Cth) makes it unlawful to treat people less favourably than another person in a similar situation because of their gender identity. Gender identity discrimination happens when a person is treated less favourably than another person in a similar situation because of that person’s gender-related identity, appearance, mannerisms or other gender-related characteristics of the person. It does not matter what sex a person was assigned at birth or whether the person has undergone any medical intervention.

As per the UK case above, a person would need to consider comments such as “woman means adult human female” or “trans women are male” as statements of neutral fact which are not transphobic. However, such comments highlight the potential clash of rights between sex and gender identity discrimination. Thus, the manner in which employees manifest their gender-critical beliefs is an important consideration but in some cases, the employee may be simply exercising their freedom of opinion or expression.

Religious Freedom or Homophobia?

Under Australian discrimination laws, religious beliefs are a protected attribute. Further, the Fair Work Act 2009 (Cth) provides employees with protections from termination, if they exercise their religious freedom.

In May 2019, Rugby player and former Wallabies star, Israel Folau, posted a screenshot of a meme on his personal instagram, quoting 1 Corinthians 6:9-10 “WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators HELL AWAITS YOU. REPENT! ONLY JESUS SAVES”. Mr Folau was subsequently terminated from his contract with Rugby Australia over the alleged discriminatory social media post. Rugby Australia and NSW Rugby stated that they do not in any way agree with the content of the post and inclusiveness is one of their core values. Rugby Australia and NSW Rugby “welcome all people to the game, including all members of the LGBTI community”.

Following his dismissal, Mr Folau launched legal action against the decision, claiming the social media messages were his religious beliefs and the termination was unlawful. While Rugby Australia stressed that Mr Folau’s dismissal was not because of his religious beliefs, Mr Folau has recently made a claim for unfair dismissal under section 772 of the Fair Work Act 2009 (Cth) alleging that the termination was because of his religion, and therefore, unlawful. Under this section, Mr Folau would have needed to prove that his Instagram post constituted an exercise of religious freedom.

Prior to the Fair Work Commission issuing a decision and properly discussing these issues raised, the parties reached an out-of-court confidential settlement. The details of the settlement have not been disclosed due to confidentiality obligations.

Freedom of Political Opinion – Employee Supporting ISIS

The Fair work Commission has explored the implied freedom of opinion and an employee’s right to political opinions, no matter how controversial the opinion may be.

In Fair work Commission unfair dismissal application Nirmal Singh v Aerocare Flight Support Pty Ltd,[3] the Applicant was a casual employee in the role of Airline Service Agent for approximately 14 months. The Applicant had created a Facebook proving using an alia, but his own photograph. On this Facebook account, the Applicant shared and made posts regarding his political opinions and supporting ISIS. 

Upon seeing the Applicant’s post about supporting ISIS, an employee of the Respondent reported the Applicant’s behaviour as he felt “unsafe”. The Applicant was subsequently terminated as he would not be offered any further shifts because he had breached the Respondent’s policies in relation to social media, he had breached his conditions of the employment manual, and his social media comments had jeopardised the Respondent’s relationship with its client and its brand.

Although the Respondent does not deny the Applicant’s right to have political opinions, the publishing of a post saying, ‘We all support ISIS’, and similar posts caused the Respondent’s employees to be alarmed by his political motivations and possible actions within a highly security-conscious environment. In determining whether the Applicant’s conduct amounted to a valid reason for dismissal, Commissioner Hunt gave regard to the fact that the Applicant worked within a secure airport environment. It was held that the bare fact that an employee with responsibility of and access to baggage facilities near aircraft would be a sufficient and valid reason to warrant the dismissal of a declared ISIS supporter. However, the Respondent failed to consider the Applicant’s response and that the comment was made in sarcasm.

Fair work Commissioner Hunt held that reliance only on the ISIS post made the Applicant does not constitute a valid reason for dismissal. Upon further and adequate inquiry, and proper deliberation of the Applicant’s response (certainly greater than just the 10-minute meeting), it should have been accepted that the Applicant had made a grave error of judgment in making the sarcastic ISIS post. Whilst accepting that the ISIS post did breach the Respondent’s social media policy, and the Applicant had been afforded relevant training in relation to the policy and required standards of employees in a high security-risk environment, Commissioner Hunt held there was no valid reason for the dismissal, in light of the Applicant’s response and explanation. 

Nevertheless, Commissioner Hunt highlighted that her finding should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Commissioner Hunt described the Applicant’s conduct as “stupid” and indicated, “It is not witty. It is not funny. It is a ridiculous post”. Notwithstanding her distaste regarding the ISIS post, Commissioner Hunt held the Applicant’s dismissal was found to be harsh, unjust and unreasonable.

Key Lessons for Employees

These cases illustrate the challenges faced by employers to get the balance right between protecting fundamental rights and freedoms, ensuring compliance with discrimination laws and protecting the reputation of their organisation. Although an employee’s comments may offend or scare fellow employees, the employer must be mindful of every employee’s right to exercise freedom of opinion and their right to political opinions. Aforementioned, gender-critical opinions constitute “any religious or philosophical belief” and are protected under UK equal opportunity laws.[4] These opinions are not discriminatory in nature as they were asserted as mere neutral statements of fact and were not intended to destroy the rights of any person who possess this protected attribute.[5]

Although philosophical beliefs on their own are not protected in Australia, employees are still entitled to their fundamental rights and freedoms to express their opinion, as long as it does not discriminate against protected classes. Despite the potential controversy or offense, these opinions are still worthy of respect in a democratic society.[6]

[1] [2019] ET 2200909/2019.

[2] Forstater v CGD Europe and Others [2021] UKEAT/0105/20/JOJ.

[3] [2016] FWC 6186.

[4] Forstater v CGD Europe and Others [2021] UKEAT/0105/20/JOJ.

[5] Ibid.

[6] Ibid.

Resignation Letter Do’s and Don’ts

Are you contemplating resigning or quitting your job? Have you drafted your resignation letter and debating whether to send it off or not? Before you press send, please ensure you are covering all necessary bases to preserve your legal rights.

Many people resign under normal circumstances, they often draft a heartfelt resignation letter to their employer. They thank the employer for all the opportunities and wish them well for the future. Nothing wrong with that, if that’s how you feel and want to leave on good terms as they say. You may want to rely on this Employer for a reference.

However, many employees resign when they might not necessarily want to but instead they feel as though they have no other choice. Even when your employment relationship is no longer viable, you should still never resign under any circumstances. In workplace or industrial relations terms this a constructive dismissal by way of being forced to resign.

When an employee resigns, they resign a lot of their rights away and it makes it difficult for lodging a claim against their employer. Although an employee may argue forced resignation or constructive dismissal, this is a very high bar to meet. If you no longer want to work for your employer, you can try and approach your employer about a mutual separation with an exit or severance package.

Alternatively, you may lodge a dispute (if you qualify under the general protections provisions of the Fair work Act) (read our general protections page or blogs) with the Fair work Commission and seek an exit or severance package, which includes resignation, potential compensation and a deed of release with obligations of confidentiality, and importantly non disparagement clause so you cannot be criticized in the work community or in the industry you seek future work. You should explore all your options prior to resigning. If you are unsure about what you can do prior to resigning, please give us a call on 1800 333 666 for a free and confidential consultation.

If you still decide you want to resign, please bear in mind what you write in your resignation letter. Your resignation letter is an official document that gives your employer notice of your departure from the company, effective immediately or on a date in the future. If you are departing your employment on good terms, you may write a heartfelt and kind letter to your employer. However, if you are resigning because of a toxic or unhappy work environment, it is important to word your letter strategically. This is critical if you are going to lodge unfair dismissal or general protections claim.

If you are trying to argue your resignation is forced, it does not work in your favour to thank your employer for the opportunity and express that it has been a “pleasure” working for them. If you include this in your resignation letter, it is increasingly difficult to argue you were forced to resign. In order to demonstrate forced resignation or constructive dismissal in an unfair dismissal claim or general protections claim, the onus is on the employee to prove that they did not resign voluntarily. The employee must prove that the employer forced their resignation. It is the Employee who ended the employment relationship, the legal onus lays with the employee.

In the words of the full bench of the Fair work Commission in O’Meara v Stanley Works Pty Ltd, adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli, the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2), states that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.

Resignation letters which make statements such as “I’ve really enjoyed working with the company”, and “thank you for everything you have done for me” is arguably not in the spirit of someone who considers that they have been forced out and are wishing to bring a claim. When lodging an unfair dismissal claim or general protections claim, arguing forced resignation or constructive dismissal, your employer will inevitably rely on your resignation letter to demonstrate your resignation was voluntary. Whilst it is your application, the onus is on you to prove the resignation was forced as it was you who ended the employment relationship.

Instead, when writing your resignation letter, you should mention why you are resigning and reiterate that you feel forced to do so. Complain about the issues you have been experiencing and express your disappointment with the company’s actions or inactions. Use this letter as a final attempt to raise your concerns with the company and make it clear that your resignation is a direct result of their behaviour. Reiterate the words “forced” and “I have no other choice but to resign” as these will strengthen your claim of forced resignation or constructive dismissal. You must take all necessary steps to demonstrate that your resignation was not voluntary and make it very clear that the employer is in the wrong. If you don’t intend on pursuing a claim of forced resignation or constructive dismissal in the Fair Work Commission and just want to leave, the wording is not as pertinent.

In some cases, employees want to resign and move on with their lives and so writing a neutral or positive resignation letter may encourage your employer to give you a good reference and put your differences aside. 

If you are not comfortable with raising your issues in your resignation letter and indicating you are forced to resign because of what has occurred, keep your resignation letter simple and neutral. This is particularly important if you do intend on making a complaint against them. You are not obligated to provide a reason for your departure but keep in mind whether you are obligated to give your employer a specific notice period. Nevertheless, do not thank them or indicate you are grateful for the opportunities they have provided you because this contradicts any argument of a forced resignation. All you need to say is date and sign a letter that states “I hereby resign from my position at [the Company] effective [insert date]”. This is all you are obligated to do.

To discuss your eligibility of lodging a claim of forced resignation or constructive dismissal, please give us a call on 1800 333 666 for a free and confidential consultation.

Paying for an employees’ silence – Aggressive negotiation or blackmail?

In Jason Richardston v Aaction Traffic Pty Ltd,[1] the Fair Work Commission has upheld the sacking of a traffic management supervisor who allegedly asked his employer for $50,000 to “go away quietly”. This bargaining attempt occurred after the employment relationship had soured after the employees’ refusal to be on-call on weekends. Subsequently, the employee was terminated and the unfair dismissal matter was heard by Deputy President Lake in the Fair Work Commission.

The Applicant commenced his employment with the Respondent on 6 August 2018 as an Operations Supervisor with a salary of $52,000. At that time, the Applicant states that there was no mention of a requirement to be on call outside of hours. The Respondent’s business underwent a restructure in 2018 and the Applicant was appointed to the position of Regional Supervisor of the Sunshine Coast and Gympie Region on 10 December 2018, with an increased salary of $75,000. The Applicant asserts that again no mention was made of the need to be on call until shortly before Christmas in 2018, when he was informed that he would be included in the on-call roster. He claims that he did this work unpaid, out of loyalty to Mr Kelly, on the basis that it would be short term.

On 11 May 2020, the Applicant asked Mr Kelly to remove him from the on-call roster because of the negative effect it was having on his family and his mental wellbeing. The Applicant stated that his continued participation in the on-call roster would result in his divorce. Mr Kelly responded to that remark with words to the effect of “don’t put that on me”. Nevertheless, Mr Kelly did remove the Applicant from the roster from late March 2020 even though that decision placed an additional burden on the other staff, who began complaining to Mr Kelly that the Applicant was receiving special treatment.

On 30 July 2020, whilst in the vehicle with the Applicant, the Respondent agrees that he told the Applicant that his current position was at risk if he did not return to the on-call roster. He also agrees that the Applicant had indicated he would not return to that roster due to the pressure his wife was putting on him.

On the morning of 3 August 2020, Mr Kelly emailed the Applicant giving him until close of business that day to inform him whether he had reconsidered his position over the weekend. It was accepted that email referred to whether he would return to the on-call roster or accept an alternative position.

The Applicant engaged Paul Cradden of the Australian Workers Union to have discussions with the business on his behalf. Those discussions took place on 4 August 2020, between Mr Kelly and Mr Cradden. At that meeting, the only options put forward by Mr Cradden to resolve the matter was either reinstate the Applicant in his previous position, without requiring him to participate in the on call roster or pay him $50,000 “to go away quietly”.

The Respondent viewed this demand as “emotional blackmail boarding [sic] on extortion” and a betrayal. Later that day, Mr Kelly contacted the Applicant to inform him that his employment was terminated effective immediately and that he would receive three weeks’ pay in lieu of notice. Deputy President lake held that there was a valid reason for dismissal and that it was not harsh, unjust or unreasonable in the circumstances, regarding the refusal to participate in an on call roster.

Nevertheless, this case demonstrates that when an employment relationship encounters turbulence and it may not longer be viable for an employee to remain employed, the manner in which employees negotiate their exit or severance packages, may be considered blackmail or extortion.

In Heydon v The Highgate Group Pty Limited,[2] an employee’s summary dismissal was upheld after he tried to extort money from his employer and then deliberately withheld information about work health and safety (WHS) issues, forcing his employer to shut down a site for 1.5 days.

Since approximately March 2017, the employee complained about the employer’s compliance with its WHS obligations. About two months after his initial WHS complaint, the employee wrote to the CEO stating that he had lodged a general protections application with the FWC and intended to file an application for prosecution with SafeWork.

The employee went on to write that he was “prepared to engage in without prejudice discussions to negotiate a mutual separation” before lodging the SafeWork application. The employee stated that if an agreement could be reached, he would also withdraw his general protections application. The employee subsequently provided the general manager with his proposal for a separation amount, which totalled more than $85,000. This was rejected by the employer.

It was held that the employee sought to bring pressure to bear on the Company to secure a separation agreement that involved a large payment, with the intention of harming the Company had it not been fulfilled. As serious misconduct includes harm to the reputation of the employer, Deputy President Booth held that this blackmail or extortion was sufficiently serious to justify immediate dismissal.

Lessons for employees

If your relationship with your employer has been turbulent and you are considering a separation or severance package, be mindful when attempting to negotiate your exit on your own. Utilizing sensitive information to blackmail, extort or compel your employer to pay you out, will not be highly regarded should the matter be heard before the Fair Work Commission. Instead, engaging a representative may assist an employee in negotiating a settlement or exit package with their employer. We can help. We consistently get employees stating “tell the Employer if i don’t get i want i will go to the TV stations” Is this blackmail?, or legalized extortion? or just tough negotiation tactics by an aggrieved employee who believes the Employer has done the wrong thing ?

A Whole New Approach, an independent body of workplace advisors and paid agents, can assist you in drafting your claim or application to a Federal Court standard, run the conciliation conferences, run arbitrations and negotiate on your behalf. Although we would act as your advocate, we provide even handed advice in regards to the prospects of your case.

By drafting your claim properly from the beginning, it demonstrates that you understand the legislation, how the Respondent has contravened these provisions and thus when negotiating a settlement or remedy, the Commission and the opposing party will take you more seriously and be more inclined to settle.  Nevertheless, we are experienced negotiators and we know what tactics or approach is acceptable in every circumstance to ensure we achieve the best possible settlement for our clients.

Give us a call on 1800 333 666 to discuss, its cost you nothing to make the call


[2] [2018] FWC 956.

Blowing a number at work, Should you be dismissed? How to avoid dismissal

Many companies have a clear policy on alcohol and drugs in the workplace. It goes without saying that employees under the influence of drugs or alcohol, in a work setting, will have an impaired judgement. Consequently, an employees’ impaired judgement may place their co-workers or themselves in danger. Zero tolerance drug and alcohol policies are paramount for companies who are in a high risk or safety critical work environment. Thus, more often than not employees can be dismissed for blowing a number or testing positive for an illicit substance, regardless of their excuse or justification.

In Marshall Rushton v Giacci Bro Pty Ltd,[1] the Fair Work Commission upheld the sacking of a truck driver who blew a number but blamed it on throat lozenges. The employee worked as a full-time truck driver carting lithium ore and hence, the Company set out the lawful and reasonable instruction that employees were to attend work and perform work free from any potentially performance impairing drug or alcohol influence. To enforce this policy, all transport workers are required to complete a breath test before they start every shift.

On 17 December 2020, the employee failed to comply with the requirement to undergo a pre-shift blood alcohol test (BAC) and when he did, some two hours later, he returned a BAC reading of 0.013. The Applicant was subsequently terminated on 18 December 2020, following a disciplinary meeting.

The employee argued that he had consumed three-quarters of a 10-pack of Anticol cough lozenges to counter his dry throat and smoked a cigarette, which may have affected the breathalyser reading. Nevertheless, the employee later admitted that he had been drinking alcohol the night before but he “went to bed early enough to sleep it off”. In response to not undertaking a pre-shift BAC test, the employee argued he had concerns about the hygiene of using the hand-held breathalyser at the port, due to COVID-19. Furthermore, the employee argued that he had received inconsistent treatment as in his 20 years of service, he could only recall the dismissal of one driver for a positive breathalyser reading.

The Fair Work Commission held that there was a valid reason to dismiss the employee as his misconduct was manifestly serious and in clear breach of the lawful and reasonable instructions that had been provided to him regarding BAC testing. In regards to the employees’ defenses, the Fair Work Commission was not satisfied that the lozenges or cigarettes invalidated the test as there was “insufficient evidence” to support this. In regards to the employees concerns about the hygiene of the breathalyzer during COVID-19, Deputy President Beaumont noted that the employee had not complained about this prior, had it been a genuine concern of his.

In addition, Deputy President Beaumont was not satisfied that there had been inconsistent treatment as the Company does issue warnings when employees return their first or second non-negative BAC test result, and that subsequent non-negative BAC test results can, and do, lead to the termination of employment. Furthermore, the employee had received other warnings relating to breath testing. Thus, in addition to there being a valid reason for dismissal, the Fair Work Commission held the dismissal was not harsh, not unjust and not unreasonable in the circumstances.

Although the Commission held that there was a valid reason due to the breach of the lawful and reasonable instructions that had been provided to the employee regarding the Company’s BAC testing policy, as with any policy, they need to be consistently applied throughout the organisation. If the policy contains procedural steps that an employer must follow before terminating an employee, it must do so strictly, otherwise the employee’s termination may be found to be harsh, unjust or unreasonable despite the employer having a valid reason to terminate.

Although this is not the case in Marshall Rushton v Giacci Bro Pty Ltd,[2] this is what the Commission found in Morcos v Serco Australia Pty Ltd [2019].[3]

On 16 March 2019, Mr Morcos was on his day off, not due back to work until 21 March 2019. At approximately 4:45 pm, Serco’s Operation Service Centre contacted him to offer a shift commencing that evening, which he accepted. Mr Morcos stated that he was often contacted to work shifts on his days off, which he normally accepted.

On the day in question, he had consumed two beers during the afternoon and was mistakenly of the belief that he would be at the required level of 0.00 by the commencement of the shift. Clocking in at around 5.40pm, Mr Morcos underwent a random alcohol breath test. His first reading was 0.037 and the second, 10 minutes later, was 0.032. He was then told to go home. He left the work site and drove home. Mr Morcos stated that there was no discussion about his ability to drive home.

On Sunday 17 March 2019, Mr Morcos was contacted by the call centre and was asked to work a night shift, which he accepted. He worked from 6:00 pm to 6:00 am the following morning. He was not asked about his fitness to work, nor did he undertake any alcohol testing prior to commencing the shift on 17 March 2019.

On 20 March 2019 he was stood down from work pending an investigation. On 26 March 2019, Mr Morcos received a letter notifying him of a disciplinary meeting on 28 March 2019, which he attended. On 1 April 2019, he provided a written response to the allegations regarding his conduct.

On 17 April 2019, he received a letter advising him of a meeting to be held on 18 April 2019. He attended this meeting, where he was told he was summarily dismissed. Deputy President Bull held that there was a valid reason for the dismissal related to the Applicant’s conduct being that Mr Morcos agreed to attend work despite knowing.

Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in ss.387(b)-(h) of the Act. As stated by the Full Bench in Container Terminals Australia Limited v Toby:[4]

“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”

Deputy President Bull also found that the Policy that accepts employees may test positive to alcohol between 0.01 and 0.05 and receive a written warning rather than be dismissed unless other serious misconduct is involved. The applicant has provided examples of such employees. In addition, Mr Morcos consumed alcohol on his rostered day off, as opposed to doing so knowing he was rostered to work the same or following day and Serco invited Mr Morcos to return to work the following day and commence another 12-hour shift, despite having tested positive the previous day.

The fact that Serco had still invited him to work an additional 12-hour shift commencing the following day, despite being aware of Mr Morcos’ positive reading was particularly telling in the Deputy President’s rejection of Serco’s argument’s that Mr Morcos should not be reinstated. The details of the additional shift were sent to Mr Taylor at 9:10 am on the morning after the incident. Serco failed to explain why it had asked Mr Morcos to work an additional shift. Mr Morcos was reinstated with an order to maintain continuity of employment and his period of continuous service.

This case demonstrates the importance for employers, including staff with the power to dismiss, to understand what they are required to do in disciplinary proceedings and in particular to be familiar with the ins and outs of relevant policies, particularly for drugs and alcohol. A “zero tolerance” policy will not necessarily mean dismissal in the context of an employees’ impeccable record and a relatively minor “infringement”.

If you find yourself in difficult circumstances, give us a call, as you can see from the above cases, its not straight forward

phone 1800 333 666, 7 days a week, all unfair dismissals, general protections claims

[1] [2021] FWC 3634.

[2] [2021] FWC 3634.

[3] [2019] FWC 7675.

[4] [2000] Print S8434 at [15].

Disagreeing with Your Boss Without Getting Dismissed, 6 Tips to get what you want, and keep your Job

In Ridd v James Cook University (JCU),[1] an academic challenged his termination in the Federal Circuit Court of Australia, based on his own beliefs regarding climate change. In 2015, Professor Ridd told a journalist that JCU needed to “check their facts before they spin their story” as “bad science” and misleading photos were being circulated about climate change and its effect on the Great Barrier Reef. Professor Ridd was sacked as he was found to have breached JCU’s code of conduct.

Justice Vasta found that JCU’s code of conduct (which stipulates that staff are not to jeopardise the integrity or standing of the university or its reputation) was “subordinate” to an intellectual freedom clause in its 2013 Enterprise Agreement. Professor Ridd was awarded more than $1.2 million for multiple agreement breaches under the Fair Work Act.

This case raises the issue of where and when is it acceptable to disagree with your boss and how there may be no place for “courtesy” in the workplace. Employees are in a tricky situation when they do not see eye-to-eye with their boss. How do you disagree with a person who most likely hired you—and has the power to potentially dismiss you? If an employee speaks up, they run the risk of being seen as “difficult” or “argumentative”. If an employee stays silent, they could seem “ambivalent” or “complacent”.

It is important to convey your point of view in the workplace, but it must be done so strategically.

Time it Right

Firstly, it is important to carefully consider the time and place for where and when you want to raise a contrary opinion. If your manager tends to prefer group or team meetings to share ideas, then this may be the perfect opportunity to speak up. It is important to remember not to seem aggressive or condescending. If you feel your boss may be embarrassed by having that conversation in front of an audience, pull him aside and have a one-on-one chat to talk it out. Ensuring you pick the right time will make a great deal of difference in how your boss reacts to your disagreement.

Keep it Professional

Disagreements should not be personal nor should they be expressed when a person is angry, emotional or upset. You should not let your emotions take over but instead endeavour to remain calm at all times during a disagreement. If you address a disagreement in a way that is perceived as an attack, your boss may not take this well. It is important to approach the situation in a respectful manner as this is the most effective way to discuss your differences, without the need for conflict.

Listen to their point of view

In a successful disagreement setting, the employee should approach the discussion by clearly stating his boss’s position on the issue. By acknowledging and validating your boss’s opinion, you are showing him that you respect his opinion and authority. You are helping your boss feel as if he is being heard and understood. Thus, by building this rapport with your boss, he will hopefully extend this same respect towards you and hear you out, despite your differing opinion.

Bond over the end result

If you and your boss are working towards a common goal, it may be helpful to exhibit a commitment to achieving this goal or to the overall success of the business. If your boss can sense that your differing opinion or disagreement stems from your commitment to see the business succeed, it will demonstrate to your boss that you are not disagreeing with him due to a personal vendetta. Further, it is best to demonstrate to your boss that this disagreement is not you attacking him or merely being a pest, but the purpose is to provide constructive criticism and an alternative opinion on how the end goal can be achieved. This will ensure you and your boss have built a rapport and are on the same team with the same end result, despite your disagreement or differing views.

Respect the Final Decision

In the end, your boss will have the final say. If he or she has considered your point of view but does not decide to take on board your suggestion or alternative view, you need to respect that.  Although you may feel as though this is unfair, you need to know when it is time to respect your manager’s decision, let it go and move on.

Can I complain about the final decision or the disagreement? Are my complaints protected?

If you decide to escalate the matter and complain to your boss’s superior or an external third party, such as making statements to a journalist as in Ridd v James Cook University (JCU),[2] you may be subject to disciplinary action.

Although the General Protections provisions prohibit employer’s from taking adverse action against an employee because they have exercised their workplace right and made a complaint or enquiry in relation to their employment, this protection is only available if your complaint falls within the parameters of “complaint or inquiry”. Unfortunately, the Fair Work Act 2009 (Cth) does not define complaint or inquiry, so we must rely on relevant case law to determine whether a complaint is protected.

It has been held that the complaint or inquiry must originate from or be an incident of the contractual arrangements or statutory framework surrounding the employment.[3] Further, it has also been held that a complaint or inquiry made by an employee must be based on a genuine objection or grievance and should not be made for any ulterior purposes.[4]

In CFMEU v Pilbara Iron Company (No 3),[5] the fact that the employee had raised concerns or complaints about safety issues within the workplace was found to be the exercise of workplace right. The complaints did not relate to his own personal working conditions, safety or environment, but were complaints made out of concern for the safety of employees at that workplace generally.

In Walsh v Greater Metropolitan Cemeteries Trust (No. 2),[6]  the Federal Court observed that an employee could make a complaint about misconduct that had an effect on another employee, but not on the employee making the complaint directly. That may be sufficient to demonstrate the exercise of a “workplace right” by that employee. Thus, the Court found that the complaint did not need to be directly related to the employment; an indirect relationship was enough. Based on the relevant case law, it is unlikely that complaining about any general disagreement with your boss, will be protected under the General Protections provisions. The actual disagreement would need to be explored and assessed. For instance, complaining about the boss having a different view about how a project goal is to be reached, may not constitute a complaint or inquiry under the Fair Work Act 2009 (Cth). Instead, this complaint may be perceived as a retaliation and for the ulterior purpose of challenging the boss’s authority.

Want any help with workplace matters, investigations, general protections, any related matters, give us a call, free advice is here for you 1800 333 666

[1] [2019] FCCA 997.

[2] [2019] FCCA 997.

[3] Harrison v in Control Pty Ltd (2013) 273 FLR 190.

[4] Shea v TRUenergy Services Pty Ltd (No. 6) [2014] FCA 271.

[5] [2012] FCA 697.

[6] [2014] FCA 456.

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