Unfair dismissal claims are of course a way for Australian workers to stand up for their rights through the Fair Work Commission. But what many don’t realize is that while workers can win reinstatement or a payout through the Fair Work Commission, they can also potentially face jail time if they act inappropriately during the unfair dismissal claim process.

Occasionally employees do not take their claims seriously. Or get another job and just forget about their unfair dismissal or general protections claim. Employees don’t care if they inconvenience the employer as they were inconvenienced and hurt when they lost their job. Some employees don’t turn up for their conference or hearing. They don’t comply with paperwork or directions. Some employees think they can turn up and just have a fight and say or do what they want. The article is on part to point out there can be dire consequences of the employees actions. Employees want respect in the workplace. In turn the same employees have to treat the Fair work system with respect.

Fair work is like a court

In this way the Fair Work Commission is much like a state or federal court, which can hand down jail time to those who hold it in contempt. And an employee can be threatened with jail time even if they win their unfair dismissal case. In this article, we detail the types of misconduct that can see an unfair dismissal applicant facing jail time. And we look into two recent unfair dismissal cases where the applicants were left facing possible jail time for their misconduct toward the Fair Work Commission.

Offences against the Fair Work Commission: What can result in jail time?

Section 674 of the Fair Work Act 2009 states that an individual can face jail time if they act inappropriately in their interactions with the Fair Work Commission. For instance, during or leading up to a formal unfair dismissal hearing. An individual can be penalized with 12 months in jail if they:

• Insult or disturb a Fair Work Commission member. For instance, a President, Deputy President or Commissioner who oversees an unfair dismissal hearing.
  
• Use insulting language towards another person or a Fair Work Commission member.
  
• Interrupts matters before the Fair Work Commission.
  
• Creates a disturbance in or near a place where the Fair Work Commission is dealing with a matter.
  
• Attempts to improperly influence another person or a Fair Work Commission member.
  
• Publish a statement that falsely claims a Fair Work Commission member has engaged in misconduct. And that the statement results in significant loss of public confidence in the Fair Work Commission member.

Let’s look at a recent unfair dismissal case where the employee was threatened with jail time for a range of misconduct directed at a Fair Work Commissioner.

Solicitor risks jail for false allegations against Fair Work Commissioner

This month, it was reported that a Sydney based solicitor may face jail time for acting inappropriately towards the Fair Work Commission. In the unfair dismissal case Prateek Patial v Kailash Lawyers Pty Ltd [2022]  , Prateek Patial made inappropriate allegations against Fair Work Commissioner Donna McKenna, who found that he hadn’t been unfairly dismissed by Kailash Lawyers.

Mr Patial had claimed that he had an employment relationship with Kailash Lawyers and that the firm had dismissed him three times. Mr Patial attempted to appeal the decision with the Fair Work Commission Full Bench, but it was dismissed.

“Corruption, racism and bias:” Employee makes unfounded allegations in unfair dismissal appeal

Fair Work Commissioner McKenna ordered Mr Patial to pay Kailash Lawyers over $36,000 to cover their legal costs. This was because he had taken an unreasonable amount of time explaining his case during his unfair dismissal hearing. Costs were also awarded because Fair Work Commissioner McKenna had been informed by Kailash Lawyers that Mr Patial had accused them of bribing her.

In Mr Patial’s latest appeal, Deputy President O’Neill remarked that it was “replete with highly offensive accusations of corruption, racism and bias” towards Fair Work Commissioner McKenna. He had also accused Kailash Lawyers’ witnesses with tampering with evidence, perjury and collusion.

The Deputy President stated that there was “no basis” for Mr Patial to maker the accusations. He also said that allegations of such serious nature “should not be made without a proper basis,” and that it was simply “inexcusable.” Deputy President O’Neill outlined that someone who insults or disturbs a Fair Work Commission member, or uses insulting language during proceedings, can face “imprisonment of 12 months” for each offence.

Casual worker threatened with jail time during unfair dismissal hearing

In another unfair dismissal case – Jeremy Lee v Superior Wood Pty Ltd [2020] – a casual worker employed at a Queensland sawmill was threatened with jail time for inappropriate behaviour at his Fair Work Commission hearing. His brother, who had helped to represent him at the hearing, was also threatened with jail time.

The crux of the unfair dismissal case was that the worker, Jeremy Lee, had refused to use a finger scanner installed by Superior Wood to clock on and off from his shifts. He instead continued to manually clock in for his shifts. Superior Wood subsequently dismissed Mr Lee for his refusal, which violated a new company policy.

The Fair Work Commission had found that he had not been unfairly dismissed as Superior Wood’s direction to use the finger scanner was a reasonable and lawful one. Mr Lee however soon appealed the decision, and it was during that hearing that his behaviour drew the Fair Work Commissioner’s ire.

“Rude and aggressive” brothers win unfair dismissal payout, but could face jail time

At his unfair dismissal appeal hearing with the Fair Work Commission Full Bench, Mr Lee once again represented himself with the help of his brother. The Fair Work Commission Full Bench found that there was in fact no valid reason for Mr Lee’s dismissal. This was because Superior Wood had dismissed him for violating a company policy that they had implemented four years after he had commenced employment. The policy therefore didn’t form part of Mr Lee’s employment contract.

Superior Wood was ordered to pay Mr Lee $24,117.08 plus 9.5% superannuation. However, the Fair Work Commissioner also reprimanded Mr Lee and his brother for their behaviour that “overstepped the mark.”

The Fair Work Commissioner said that throughout the appeal hearing, the brothers acted in several ways that violated Section 674 of the Fair Work Act 2009. This included:

• During the hearing, displaying “contempt,” “acting rudely,” and “aggressively.”
  
• Attempting to speak over the Fair Work Commissioner and arguing with him after a ruling had been made.
  
• Being “fixated” with demanding transcripts and audio recordings of the hearing.
  
• Accusing the Fair Work Commissioner of being “secretive,” despite his approach adhering to Fair Work Commission standards.
  
• Making other unsubstantiated allegations against several members of the Fair Work Commission.
  
• Ignoring the Fair Work Commissioner’s directions to file material relating to their separate Federal Court case.

Unfairly treated, three unfair dismissal hearings

The Fair Work Commissioner conceded that Mr Lee had been unfairly treated by Superior Wood. And that he had had to endure three unfair dismissal hearings. But he said that there was “no excuse” for Mr Lee and his brother’s behaviour towards the Fair Work Commission. He therefore warned the brothers that if they were to behave in this way during future dealings with the Fair Work Commission, they could risk spending 12 months in jail.

Unfair dismissals and jail time: The key takeaway

When you make an unfair dismissal application with the Fair Work Commission, just remember that it is a serious undertaking. The common misconception is that because the Fair Work Commission isn’t a court, you can therefore treat its members with less respect. But as you read in the aforementioned cases, that simply isn’t the case.

Swearing at or insulting Fair Work Commission members, or making unfounded allegations against them, could land you in jail for 12 months. If you have just been deprived of your employment through unfair means, the last thing you want is to also be deprived of your freedom.  

Have you been unfairly dismissed?

While you need to take the Fair Work Commission seriously, just remember that they are also here to help. If you feel you have been unfairly dismissed, you can make a claim through the Fair Work Commission to seek reinstatement or financial compensation. Making an unfair dismissal claim doesn’t necessarily mean you will proceed to a formal hearing – or multiple hearings, like in the two aforementioned cases. In fact, 95 per cent of unfair dismissal claims never reach a formal hearing as they are instead resolved at conciliation or afterwards.

If you want to make an unfair dismissal claim, remember to act fast. You must make your claims within 21 days of being dismissed. We at A Whole New Approach are Australia’s leading advisors and commentators, with deep experience helping workers lodge unfair dismissal or general protections claims. We can help you understand if you have a viable case to make with the Fair Work Commission. And we can guide you through the unfair dismissal process – from making an initial application, to appearing at a conciliation or formal hearing.

You can benefit from our no win, no fee service. Plus, your first consultation with us is absolutely free. All matters relating to employee rights, casual employment rights and serious misconduct call us now.

Call us on 1800 333 666 for a no obligation, confidential conversation to see how we can help you make your claim and ensure it’s a success.

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