Posts: Fair Work Commission

Under the anti-bullying jurisdiction of the Fair Work Act 2009 (Cth), the Fair Work Commission has the broad power to make an order (other than monetary payment) that it considers appropriate to prevent a worker from being bullied at work.

For an employee to bring a valid unfair dismissal claim or a general protections claim involving dismissal, it should be obvious that they must have been dismissed by their employer.

Drafting workplace policies and procedures can be a daunting exercise – it requires a careful balance of including (or omitting) information that is necessary from a legal standpoint, whilst still remaining easy to understand and follow for employees.

In a recent unfair dismissal decision, the Fair Work Commission has issued a reminder about the importance of honesty and candour in an employment relationship – particularly when it comes to determining an employee’s fitness for work.

One of the key elements of a procedurally fair disciplinary process is for the employee in question to be notified of the seriousness of the process (including the potential disciplinary penalties) and to be provided with an opportunity to respond to any allegations before a decision as to disciplinary action has been made.

Under the Fair Work Act 2009 (Cth), whether an employee’s dismissal was procedurally fair is a key factor in determining whether the dismissal was unfair. Procedural fairness requires an employee be given an opportunity to respond to or explain an allegation put to them by their employer. The employer must consider that response or explanation before deciding the disciplinary penalty – eg: a warning, or termination of employment.

The Fair Work Commission’s Expert Panel has announced the outcome of its annual review of the national minimum wage and minimum wages under modern awards.

In a recent decision, the Fair Work Commission has applied the test recently confirmed by the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, in distinguishing between employees and contractors.

Access to the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) is on the basis that the employee is “dismissed” from the employment. A jurisdictional objectional can be raised if the employee has not been actually dismissed by the employer.

In most cases of redundancy, employers have an obligation to consult with affected employees about the proposed redundancy and consider whether or not anything can be done to mitigate or minimise the impact on the employee, such as redeployment or obtaining other acceptable employment for the employee.

It is not uncommon for employers and employees to agree to flexible working hours, particularly in circumstances where the employee has family or other caring responsibilities. Such arrangements are best recorded in writing, setting out clear expectations of the employee.

Given the serious nature of matters such as dismissals, employers should, as far as reasonably practicable, communicate such matters in person to ensure that there is no confusion about when the employee was made aware of any issues with their employment.

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.

In a recent unfair dismissal decision, the Fair Work Commission (FWC) has supported an employer’s decision to dismiss an employee for breaching its drug and alcohol policy despite the employer failing to strictly enforce the policy.

In the unfair dismissal jurisdiction, the primary remedy is reinstatement. This means the employer is ordered to return the employee to their employment in the position they held immediately prior to their dismissal or another position on no less favourable terms.

In unfair dismissal matters, reinstatement is the primary remedy and the Fair Work Commission (FWC) may not make an order for compensation unless it is satisfied that reinstatement is inappropriate.

Financial misconduct committed by an employee can fundamentally damage the trust and confidence in an employment relationship. Unfortunately, financial misconduct is a common issue for Australian businesses and if it is not dealt with promptly and effectively, there is an opportunity for further misadventure.

The Fair Work Act 2009 (Cth) (FW Act) requires that employers comply with a number of procedural elements in a disciplinary process prior to making a decision about whether an employee’s conduct or behaviour warrants disciplinary action.

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct.

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

The COVID-19 (coronavirus) pandemic has significantly impacted the financial stability of many businesses. Employers have had to make difficult decisions and implement different measures to ensure the ongoing viability of their businesses. Some of these measures have included asking employees to agree to temporary reductions in their hours of work or to a reduction in their remuneration.

The Fair Work Commission’s recent decision in Hafsteins v Correct Installs Pty Ltd [2020] FWC 2729 has showcased a “patient” employer’s handling of an employee’s numerous workplace health and safety breaches.

Out of hours conduct and its impact on the employment relationship is always a hotly debated topic – particularly between employers and their employees.

In deciding whether to take disciplinary action against an employee, it is important for employers to ensure that the employee is given a reasonable opportunity to provide a response or explanation before a final decision is made, particularly when it concerns matters that could result in summary dismissal.

The Fair Work Commission (FWC) has a vital role to play in the management of the current COVID-19 pandemic as it continues to impact employment relationships across the country.

In response to the impacts of the COVID-19 pandemic on businesses and employment across Australia, the Fair Work Commission (FWC) has already introduced (and proposes to further introduce) a range of temporary variations to modern awards to provide increased flexibility for employers and employees during this challenging time.

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour.

When dealing with litigated matters, we cannot stress enough the importance of having evidence and witnesses that are credible and reliable to support a party’s position in the proceedings.

The FWC has reduced an employee’s entitlement to redundancy pay to nil after an employer successfully argued that it obtained ‘other acceptable employment’ for the employee, which the employee had refused.