The odds can be stacked against you

Doing all you can to protect your job when faced with a workplace investigation or dismissal is essential. Even when it seems that the odds are stacked against you, you should never think that you can’t save your job. As an Australian worker, you have numerous options available to help ensure you can avoid a dismissal and protect your job. In this article, we detail the best ways you can save your job by taking action through the Fair Work Commission. And we detail a recent court case that shows how fighting to protect your job can really pay off to help you avoid a dismissal.

Government worker has major Federal Court victory in quest to save job

In January 2022, an employee of the federal Department of Climate Change, Energy, the Environment and Water (DCCEEW) claimed a major victory in her quest to avoid a dismissal and save her job.

The employee, Hanan Assi, took her case to the Federal Court claiming that the DCCEEW had violated employment law. This was because it had launched a workplace investigation into allegations that she had breached the conditions of her probation. Also, telling her that she would be dismissed days before the Christmas break. This was just two weeks before the end of her six-month probation period. Ms Assi, however, claimed that the true motivation behind DCCEEW’s intention to dismiss her is that she is a Muslim who wears a veil.

Employee alleged to have lied about workplace investigation in former role

The DCCEEW had claimed that during the recruitment process Ms Assi had lied about the circumstances surrounding her resignation from her previous job. In 2019, her former employer the Department of Agriculture, Water and Environment (DAWE) conducted a workplace investigation into Ms Assi. This was because it alleged that she had been regularly performing work for her private business during her normal work hours for DAWE.

The department alleged that this caused Ms Assi to work less than her contracted 7.5 hours per day. And it estimated that this led to a deficit of up to 500 hours of work in the preceding year. In order to avoid a dismissal, Ms Assi had through her lawyer negotiated for the workplace investigation to end and for her resignation.

Claims workplace investigation into allegations was unwarranted

During the recruitment process, Ms Assi had told the DCCEEW that she had been subject to a workplace investigation while at DAWE. However, she hinted that it was instigated by a rogue manager. Ms Assi also explained that during the workplace investigation she had provided DAWE with “significant evidence and justification.”

She said that the department did not provide a response to her submission. Further that her workplace investigation ended with inconclusive findings. The implication of this was that the workplace investigation didn’t find any evidence of wrongdoing as a result of the evidence that she had proffered. Based on this explanation, Ms Assi was hired by the DCCEEW.

Nearly six months later, the department told Ms Assi that it was contemplating dismissing her for violating the Australian Public Service code of conduct. Namely, for failing to behave with honesty and integrity by providing misleading information and failing to disclose information.

Federal Court orders Employer not to dismiss employee

Justice Collier of the Federal Court handed down her interlocutory decision in January 2023. Finding that the balance of convenience “plainly favour[ed]” Ms Assi. The Justice also stated that she harboured “concerns” about the DCCEEW notifying Ms Assi of its intention to dismiss her at the tail end of her probation period.

Justice Collier ordered the department to not dismiss Ms Assi. She also ordered for her case to be remitted to the national operations registry so it could be “urgently” put before a Federal Court judge.

Taking action through the Fair Work Commission or courts can help save your job

For Ms Assi, taking legal action against her employer has so far allowed her to protect her job and avoid a dismissal. If placed in a similar position, you like many employees may feel like protecting your job would be futile. But it’s important to remember that Australia’s workplace protection laws provide you with the means to save your job and hopefully avoid a dismissal.

It’s worth making an unfair dismissal claim to protect your job

If you feel like you were unfairly dismissed, you have options to save your job. You can contest your dismissal through the Fair Work Commission by making an unfair dismissal claim. But remember, you need to be quick. You must make your unfair dismissal application within 21 days of being dismissed.

The Fair Work Commission will decide whether your dismissal was “harsh, unjust or unreasonable.” The aim of an unfair dismissal claim is to win reinstatement – provided the employee-employer relationship isn’t irreparable. That is the trust and condifence can be restored. Otherwise, the employer may be ordered to pay the employee compensation.

What types of circumstances could deem your dismissal unfair?

There are a variety of reasons why an employee’s dismissal may be deemed unfair by the Fair Work Commission. Below we list the valid types of dismissal and when they can be deemed invalid:

• Misconduct – Other employees have been granted more leniency for the same issue.
  
• Out-of-hours misconduct – There’s no connection between the misconduct and your employment.
  
• Serious misconduct – Your employer didn’t have adequate evidence to support their decision. And/or the decision seems disproportionate to what was alleged.
  
• Fighting or assault – Your employer didn’t take extenuating circumstances into account.
  
• Poor performance – You weren’t adequately warned that you needed to improve your performance or that you were at risk of dismissal.
  
• Incapacity – You were unable to perform the inherent duties of your role because you were ill or injured. Or you were dismissed for incapacity regarding responsibilities you weren’t hired to perform.
  
• Abandonment of employment – Your employer didn’t make a sufficient number of attempts to get into contact with you.
  
• Redundancy – Your employer could have redeployed you within the company, but didn’t. Or they hired another person to fill your role.

Our detailed article provides all you need to know about these different types of dismissals and how they could be seen as unfair by the Fair Work Commission.

Were you denied procedural fairness during your workplace investigation?

In many unfair dismissal cases brought before the Fair Work Commission, an employee’s dismissal is deemed unfair because their employer denied them procedural fairness during a workplace investigation. If your employer has failed to provide you with procedural fairness, it could be used as the basis for an unfair dismissal application that could save your job and help you avoid a dismissal.

Procedural fairness refers to steps taken to ensure fairness during workplace investigations and decision making. Employers must provide an employee with the opportunity to defend themselves during workplace investigations and prior to making any decision to discipline or dismiss them.

How the Fair Work Commission evaluates procedural fairness in workplace investigations

When considering if a workplace investigation was fair or not, the Fair Work Commission evaluates various factors. This includes if the employer followed its established dismissal procedures and allowed the employee to share their version of events.

The Fair Work Commission will also evaluate if during the workplace investigation the employee was provided sufficient time to respond to the allegations made against them. And if the employer adequately considered their response to them. Also, if the employee was given the opportunity to seek advice or have a support person present.   You can learn all about the importance of procedural fairness in workplace investigations by reading our detailed article.

Why it pays to protect your job with an unfair dismissal claim

On this blog, we’ve covered countless examples of employees who have avoided a dismissal by protecting their job via an unfair dismissal claim. One example of a recent unfair dismissal case where an employee truly fought to save his job was Wally Moszko v Simplot Australia Pty Ltd [2021]. The case concerned Wally Moszko, who was a shift feeder at a Tasmanian potato processing plant owned by Simplot Australia. He had worked at the company for over 23 years. Mr Moszko was dismissed in November 2020 in relation to five allegations of improper conduct. This included failing to complete a bunker drain and falsifying his log sheet.

Arguing that the allegations were false, Mr Moszko made an unfair dismissal claim with the Fair Work Commission in a quest to protect his job. And the Fair Work Commission agreed with him. It found that there was insufficient evidence to support the allegations. Also, that Simplot hadn’t conducted an adequate workplace investigation.

The Fair Work Commission ruled that Mr Moszko had been unfairly dismissed. And while he was aiming to gain reinstatement, the Fair Work Commission felt that outcome was inappropriate. This was because it believed Simplot had lost trust and confidence in Mr Moszko. Also, that he would be placed under closer scrutiny by the employer given the allegations made against him. The Fair Work Commission instead ordered Simplot to pay Mr Moszko $9,200 in compensation.

Employee fights to save his job with Fair Work Commission Full Bench

Despite the compensation he received, Mr Moszko was determined to protect his job and gain reinstatement. So he appealed to the Fair Work Commission Full Bench, which overturned the original decision.

The Fair Work Commission Full Bench ruled that reinstatement was in fact viable as the trust and confidence Simplot had lost could be fully restored. It found that there was no evidence that Mr Moszko would be placed under closer scrutiny by Simplot. The Fair Work Commission Full Bench also took into account Mr Moszko’s 23 years of employment at Simplot and his determination to return to his position at the company.

Have you been unfairly dismissed?

The case of Mr Moszko just goes to show that if you really want to save your job and avoid a dismissal, you can be successful. That is, even if the Fair Work Commission originally declines to order a reinstatement.

At A Whole New Approach, we provide exceptional services for workers unfairly dismissed from their employment. With 16,000+ successful cases under our belt as experienced workplace mediators, we aid employees in navigating the complicated process of filing an unfair dismissal claim. We can help you protect your job and avoid a dismissal.

Our team of experts takes a personalized approach and strives to find a mutually beneficial resolution. Plus, there’s no risk for you as our services are offered on a no win, no fee basis. Take advantage of our free initial consultation to learn about your rights and options. Trust us to be by your side every step of the way. Don’t endure the aftermath of an unfair dismissal alone.

Reach out to us at 1800 333 666 for a confidential discussion

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