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10 Ways to Avoid the Sack or Being Dismissed

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10 Ways to Avoid the Sack or Being Dismissed, Unfair Dismissal Australia

Are you worried about being dismissed ? Are you finding it more difficult to remain in a position without being fired? Dealing with the effects of being fired or dismissed isn’t easy.

Being dismissed isn’t simply based on your competence to do the job. Often it can be due to their attitude, work ethic and personality. Thus, here are 10 different ways to avoid the sack or getting fired:

1) The “No call, No show” employee

Although this seems like an obvious tip, it is surprising that many employees do not see the seriousness of failing to turn up to work. If you do not show up to work, you are potentially letting your employer and your team down. If you need the day off work, it is important to give your employer plenty of notice regarding required time off. Every workplace has their own leave request process in which you can request annual leave or time off.

In regards to not attending work because you are sick, try to give your employer as much notice as possible. Even if you wake up sick on the morning you are required to work, notify your employer immediately that you are unwell.  Employers understand that unexpected family emergencies may arise or you may become unwell suddenly, but this does not necessarily excuse not informing your employer of these circumstances. There would need to be an exceptional circumstance to explain why you did not show up to work and why you did not inform your employer of this reason.

2) Be punctual and on time everytime

Another seemingly obvious tip is to be on time and punctual for work. Showing up late on a single isolated day does not mean your boss will sack you. However, if coming to work late becomes a habit that is happening on a regular basis, this behaviour may constitute misconduct or grounds for dismissal. In order to beat this ground for dismissal, ensure you contact your employer and explain your reason for being late and inform them of when you anticipate to get there.

If there is a reason outside your control, which is the reason for your tardiness, discuss this with your employer. For instance, if you need to drop your kids off at school before starting work and so some mornings you may be a few minutes late, inform your employer of this. You can attempt to rectify your actions by offering to stay back and make up the time.

3) Do not refuse to complete tasks unreasonably, be flexible!

More often than not, employers may sometimes need you to complete a task for them that is not ordinarily part of your job. Of course, if an employee is asked to do something illegal or something that is far outside of your job description and area of expertise, you should speak up and discuss this with your boss. You cannot refuse to complete a task that does fall within your job function as you cannot pick and chose what tasks you do.

However, when asked to do something out of the ordinary, remember to be flexible and accommodating. Employees cannot rely on their job description in their employment contract when deciding whether they should complete a task an employer has asked them to complete. Complying with your boss’s requests shows your dedication and loyalty to the job. Employer’s highly regard employees who are flexible and who will happily complete what is asked of them, even if it is slightly outside their job description.

4) Be a team player

Similar to refusing to do a specific task, you cannot refuse to work with a particular person without a proper reason. If an employee can demonstrate that they cannot work with a certain person because of bullying behaviour that is causing a danger to their health and safety, the employer will need to take this into consideration.

However, if you and a particular person do not get along or see “eye-to-eye”, this may not be a justifiable excuse that your employer needs to consider. You will come across many people that you don’t particularly like throughout your career, but you have to learn to tolerate them and be professional. In the end, you were hired for a job and to perform a role so your personal preferences should not get in the way.

5) Do not publish inappropriate content on social media

What happens when a disgruntled employee posts a rant on their Facebook page about their employer? What about when a manager sees their employee’s Instagram post showing them engaging in personal activities during work time? What about a post that spouts an employee’s personal views about an issue that the employer does not agree with?

The use of social media as a necessary means of communication in business has been so widely recognised that many employers now have social media policies in place to ensure that employees are aware of what is appropriate use of social media. Social media unavoidably blurs the boundaries between public and private and the blurred line has led to employers being forced to take disciplinary action against employees that have posted something in their “private” capacity on social media, as is likely to have a negative impact on the employer. Unsurprisingly, the Fair Work Commission has had to rule, on several occasions, on the lawfulness of an employer terminating an employee’s employment over a “private” post on social media.

In short, an employee’s employment could only be validly terminated because of out of hours conduct where the conduct is “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”[1]

In Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring,[2] the Fair Work Commission decided that it was harsh for an alarm and surveillance monitoring provider Staysafe Security t/as Alarmnet Monitoring (Alarmnet) to terminate their long-term employee after she was found to have breached the company’s social media policy. The Fair Work Commission acknowledged that the employer’s social media policy required employees to refrain from posting material that could adversely affect the ‘image, reputation, viability or profitability of the Company’ and evidence was adduced by the employer that the employee had received a copy of the policy and was aware of its contents.

Although the Fair Work Commission found the dismissal to be harsh, they concluded that the employee was validly dismissed and a proper process had been followed. Thus, the Fair Work Commissions stance on the rights of employees and businesses in the domain of social media policies, has been further clarified and they maintain that breaching social media policies is grounds for dismissal.

In summary, be careful what you post on your social media platforms. Avoid complaining about your boss, about the company or your job and never publish any information received during the course of your employment. Even if you believe your post is “private”, it is clear that if a Company obtains this post, they may have a valid reason to terminate your employment.

6) Do not get involved in gossip or drama

Gossip or drama can be a commonplace in the workplace, but is engaging in this conduct grounds for dismissal? People who engage in gossip need to be very careful they’re not breaching any values or standards of conduct the employer has set because at its worst, gossip can constitute bullying or sexual harassment. If gossipers breach a policy then employers can rightfully discipline them or possibly even terminate their employment, particularly if it’s repeated behaviour that risks the health and safety of co-workers.

In Kym Suzanne Reedy v Global Cranes Pty Ltd,[3] an employee was sacked for spreading rumours to a colleague about her Managing Director’s supposed womanising and illicit drug use. The colleague happened to be the Managing Director’s fiancé. After failing to attend a meeting organised to discuss her behaviour, the employee was dismissed. Finding in favour of the employer, the FWC indicated that “salacious and unproven rumours… and hostility on the part of (the employee) towards her employer… are consistent with a malicious intent” – and constitute “a valid reason for termination of employment”.

In Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care,[4] the employee was accused of “back biting” and was dismissed from her employment on the same day. The Fair Work Commission had to decide whether back biting constitutes a sound defensible or well founded reason for terminating the employee. The employer contended that “back biting” is the making of any negative comment about a person and behind their back, which is strictly against their policy. The employer’s policy stated that any instance of “back biting” committed by an employee would be a breach of the employer’s policy and make the employee liable to instant dismissal.

The employee admitted to making negative comments about staff members but said that as such comments were true they weren’t “back biting”. The comments were that one staff member was lazy and that another was not a competent carer.

The Fair Work Commission held that the negative comments made by the Applicant do not of themselves constitute a valid reason for dismissal. It was also held that the employer’s policy was an extremely blunt instrument makes no distinction between malicious and untrue comments made behind a person’s back with the clear intention of destroying the person’s reputation and comments made behind a person’s back which are true and which would not result in serious damage to the employees’ reputation.

The crossover of gossip with bullying is also important in a work setting. The Fair Work Commission held that bullying can manifest itself in many ways and includes spreading misinformation or ill-will against others.[5] It was also held that scurrilous denigration of a worker in the workplace would certainly fall within the boundary of bullying.”[6]

These cases demonstrate that an employee is putting themselves at risk of being dismissed if they engage in gossip in the workplace. Thus, it is best to avoid all workplace gossip.

7) Be honest with your employer

Studies have shown that workplaces which implement a “culture of honesty”, breed long-term success. The more transparent the work environment, the happier the employees are.  The happier employees are, the more productive they are.  Ultimately, honesty builds trust in the company and confidence in leadership. Voicing the truth enables all of us to identify the issue and work as a team to better it. Further, lying to your employer may have devastating consequences.

The Fair Work Commission has upheld the dismissal of an employee who lied to her employer about being sick, so she could attend her sister’s wedding.[7] In dismissing the unfair dismissal claim, Commissioner McKenna said the manager’s reasons for the dismissal were reasonable – ‘going fundamentally to – good faith, fidelity and trust’.[8] This case acknowledges that lying or being dishonest may constitute a valid reason for dismissal due to the break down of trust between an employee and their employer.

8) Avoid flirting with your co-workers

Well-received workplace flirtation that doesn’t veer into sexual-harassment territory, may not put you at risk of dismissal. However, the difficulty arises if one employee choses to flirt or “make their move” on another employee and they get turned down. This indicates the flirtation is not mutual and gives rise to potential breaches of sexual harassment policies, if the flirtation continues. If a co-worker has rejected your advances or flirtation, cease flirting with them immediately. If you continue to flirt with the employee, despite them making it clear they are not interested, you may be breaching sexual harassment policies or anti-discrimination laws.

Although sexual harassment is not defined as a valid reason for dismissal under the Fair Work Act 2009 (Cth), it has strongly suggested that conduct which amounts to sexual harassment, will be a valid reason for dismissal.[9] However, Prime Minister Scott Morrison and Attorney-General Michaelia Cash announced in April 2021 that the government would accept all of the report’s 55 recommendations either “wholly, in part, or in principle” and introduce changes before the next budget to simplify and streamline sexual harassment legislation. This includes changing the definition of series misconduct to include sexual harassment and making sexual harassment a valid reason for an employee to be terminated. Thus, it is important to understand when flirtation is no longer flirtation and becomes sexual harassment.

9) Always be respectful

Workplace environments can often be stressful and frustrating for employees. Full-time employees spend a large percentage of their life at their respective workplace and so it is important that the workplace environment is as amicable as possible. Nevertheless, when tensions are high, it is natural for an employee express their frustration and raise their voice. It is important to remember that some workplaces do not tolerate any form of anger or yelling, especially when it is targeted towards another person and they feel threatened, scared or bullied.  However, there is a fine line between raising your voice and expressing angry outbursts or aggressive behaviour.

The Fair work Commission has confirmed that angry and aggressive conduct in the workplace will provide an employer with a valid reason or reasonable grounds (as per the Small Business Dismissal Code).

In WK v Advantage Communications & Data Pty Ltd T/A Advantage Communication & Data,[10] the employee was dismissed for serious misconduct because of his continued aggressive and rude conduct toward employees in a Telstra call centre. The employee’s conduct towards the Telstra staff prompted a series of complaints from Telstra managers to the employer. The basis for the dismissal was the employee’s unacceptable conduct, his refusal to comply with a reasonable and lawful direction and the risks to the employer’s reputation and interests caused by the employee’s actions. The Fair Work Commission upheld the dismissal and determined it was not unfair.

In DP v Roy Hill Operations Pty Ltd,[11] an employee was dismissed following an aggressive outburst toward a registered nurse at the employer’s medical centre. During the particular interaction that resulted in the employee’s dismissal he attended the employer’s medical centre for treatment by the nurse and behaved erratically, shouting accusations at the nurse such as “you don’t know what you are f**king doing,” “you’re dangerous and don’t know anything about asthma,” “you’re going to kill someone,” “you’re f**king stupid” and “you need to go and do some schooling”. The employee argued that he was later diagnosed with asthma so his frustration was ultimately “justified” and that the outburst was out of character for him. The FWC found that the employee’s rude and aggressive behaviour toward the nurse represented a valid reason for the termination of his employment and that his actions were fundamentally inconsistent with the employer’s code of conduct.

These decisions demonstrate that whether an employee has a history of aggressive behaviour or an angry outburst is a one off incident, either can be a valid reason for terminating that employee’s employment. Anger, aggression and intimidating behaviour in the workplace is not tolerated by employers. The safest option is to always remain as calm as possible and remove yourself from a situation before letting it escalate. This will protect yourself from any potential disciplinary action.

10) Do not be intoxicated at work

Its is surprising how many calls get from employees dismissed for drinking / doing drugs at work. Clearly an employee who is intoxicated by drugs or alcohol at work will suffer from impaired judgement and may seriously jeopardize their own and other employees’ safety. This is a particularly concerning issue in workplaces where employees operate heavy machinery or vehicles. Nevertheless, presenting to work high on drugs or drunk, will may constitute a valid reason for dismissal.

In Fair work Commission unfair dismissal case of Jurgen Rust v Farstad Shipping (India Pacific) Pty Ltd T/A Farstad,[12] a sea captain with 16 years’ service was dismissed following a random drug and alcohol screening, which indicated his blood alcohol concentration was over the employer’s acceptable limit. Although the Fair Work Commission found the dismissal to be harsh in the context of his exemplary employment record and inaction by the employer to resolve an incident that caused the employee great anxiety and stress, it was held that breaching the employer’s alcohol policy was a valid reason for dismissal.

In Harris v Meadowbrook Golf Club,[13] the Fair Work Commission had to decide whether the use of marijuana of itself while on an employer’s premises and at work is a valid reason for dismissal. The Fair Work Commission found that given the employees actions were unlawful, namely possessing an illicit substance (cannabis) and possessing items used for taking drugs (a bong), this unlawful conduct undertaken on the employer’s time, and on the employer’s premises could provide a valid reason for termination.[14] Given the employee had admitted to engaging in the unlawful conduct, this was held to be a valid reason for dismissal.[15] Whilst there were procedural in the manner in which the termination was effected, given that the employer had a valid reason for termination and further information came to light after the termination that also weighs against a conclusion that the dismissal was unfair, the dismissal was held not harsh, unjust or unreasonable.[16]

These cases demonstrate the risk involved with presenting to work under the influence of drugs and alcohol, even if it is the following day. Do not put yourself at risk by drinking or taking drugs even when not at work because it may still be detectable in your system. Although the Fair Work Commission may rule in favor of the employee regarding whether the dismissal is ultimately fair, working whilst high, affected by alcohol or failing a drug or alcohol test, is a valid reason for dismissal. Regardless of whether your employer has a “no tolerance” or “low tolerance” policy, avoid drugs and alcohol in the workplace at all costs.

This is not an exhaustive list, I hope this helps / reinforces your ability to keep your job, being dismissed is no good, is it easier to keep a job?, or end up dismissed, and ringing us to lodge a unfair dismissal or general protections claim?. Be mindful of this is all I’m stating. Your always welcome to call us for advice 1800 333 666


[1] Rose v Telstra Corporation Ltd [1998] IRCommA 1592; [1998] AIRC 1592.

[2] [2019] FWC 5622.

[3] [2011] FWA 3037.

[4] [2011] FWA 776.

[5] Application by Ms Nadia Page [2015] FWC 5955.

[6] Ibid.

[7] Puti Walker v Bow Tie Removals and Storage Pty Ltd [2012] FWA 2851.

[8] Ibid at [22].

[9] GrainCorp Corporation Limited & Anor re termination of S Markham (PR924102, 24 October 2002).

[10] [2016] FWC 6937.

[11] [2016] FWC 7648.

[12] [2017] FWC 3426.

[13] [2021] FWC 145.

[14] Ibid at [66].

[15] Ibid at [67].

[16] Ibid at [89].

10 Ways to Avoid the Sack or Being Dismissed, Unfair Dismissal Australia

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