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Employees’ silence – Aggressive negotiation or blackmail?

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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 or negotiation 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.

Background of Negotiation Tactics

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.

Nevertheless 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”.

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.

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 the unfair dismissal case of 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 unfair dismissal 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 Fair work 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


[1]

[2] [2018] FWC 956.

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