Posts: Termination

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

With the new Respect@Work amendments now in place, employers should be mindful of a recent decision handed down by the Fair Work Commission where it upheld the dismissal of an employee on the basis that swearing at a colleague constituted sexual harassment.

In the first of a two-part blog series, we look at inappropriate conduct and behaviour in the workplace and the importance of dealing with problematic workplace behaviour.

In the third and final instalment of our employment 'life cycle' webinar series, we explore the challenges faced by employers as they navigate the exiting of employees from the hybrid workplace – whether that be by resignation or dismissal.

If an employee is unable to meet the inherent requirements of their role due to illness or injury, it may be lawful for an employer to terminate their employment on the grounds of incapacity.

Although circumstances may be unique to each case, generally, workplace policies will provide employers with grounds for termination when a significant breach has occurred.

In our last Conversations, we discussed two recent decisions of the Fair Work Commission (FWC) which looked at an employee’s conduct outside of work and whether or not that conduct could be sufficiently connected to their employment so as to constitute a valid reason for dismissal.

While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.

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.

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.

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

In the unfair dismissal jurisdiction, where it is found by the Fair Work Commission (FWC) that an employee has been unfairly dismissed, the primary remedy under the Fair Work Act 2009 (Cth) (FW Act) is for the employee to be reinstated to the position they held immediately prior to their dismissal or another position on no less favourable terms.

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.

Cases and Legislation June 2020 NEWS ALERTS NSW Work Health Safety Legislation Amendments The Work Health and Safety Act 2011 (NSW) (WHS Act) was recently amended giving effect to some of the recommendations of the 2018 national review of the modern WHS Act. ...

Cases and Legislation February 2020 Post-Employment Conduct “Ex-employee fined for contempt after breaching Court undertakings" Maxilift Australia Pty Ltd v Donnelly [2020] SASC 8 Executive summary A former sales manager has been fined $7,115 and found in contempt of...

Performance management is a challenging process, which can be further complicated when employees are working remotely.

Drunkenness and vomiting at after work drinks did not justify employee's dismissal.

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant.

Employers' duty of care for employees, duty of care and contributory negligence, workers compensation and working from home, multiple roles and overtime, general protections and reason for adverse action.

Employee conduct and codes of conduct, employers’ liability and employee out-of-hours conduct, employer in breach of privacy laws, redundancies and suitable alternative employment, workplace bullying and disciplinary action

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness

Discussions with employees about restructures and redundancies are difficult and emotions often run high.

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct.

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion.

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour.

As the Israel Folau saga enters another chapter, our Managing Director Athena Koelmeyer shared her thoughts with Smart Company’s News Editor, Matthew Elmas, on how this case will potentially affect all employers and employees not just sporting organisations and athletes.

One legal instrument commonly used to provide the parties with assurances about the finalisation of matters between them is a deed of release.

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.

According to the Fair Work Commission’s (FWC’s) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC.

It is becoming increasingly challenging for employers and employees to understand where the line is between a relaxed, open and friendly workplace culture

The FW Act provides a minimum entitlement to redundancy pay in situations where an employee’s position is genuinely made redundant.

An employer was ordered to pay $10,000 in compensation to a former supervisor who had been dismissed five months into her probation period.

In most cases, it is clear when an employee is dismissed or has resigned. There is usually some formal discussion or at the very least, a termination or resignation letter.

We all have different hobbies, activities or interests we want to share with our friends and colleagues. However, not all interests are appropriate for the workplace.

The NRL’s Manly Sea Eagles have faced an uncomfortable situation regarding a key employee in recent times.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

In this blog, we explore the subtleties of one of the most standard clauses in the employment contract- the notice of termination clause.

Employees active on social media (such as Facebook) fail to consider who might be able to see their personal online posts at any given time.

One of the logistical challenges often faced by employers is the management of rosters and employee working hours. There are a number of factors to take into consideration when it comes to this.

The last 48 hours has seen a lot of discussion in sports media about employment contracts centred around the Wests Tigers, Ivan Cleary and the Penrith Panthers

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.

The purpose of a conciliation is to help the parties resolve the matter without the need go to a full hearing before a FWC member.

Last-minute meetings and unexpected emergencies (especially safety emergencies) mean that messages and information often need to be relayed to employees almost instantly.

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

Baseless complaints or attempts at extortion are capable of amounting to serious misconduct, as exemplified in this case.

It is rare to come across someone who does not have their mobile phone in their hand, pocket, bag or otherwise within reaching distance at all times.

If dishonesty does find its way into the workplace, employers must act swiftly and hold employees accountable where necessary, so that it does not become a part of the workplace culture.

A failure to take into consideration an employee’s health concerns during a performance management or disciplinary process may not only place an employee’s health at further risk but can also increase an employer’s exposure to claims under employment, workers compensation, bullying or discrimination laws.

When an employee refuses to hand over information or evidence that the employer considers is relevant to an investigation, a formal direction may be issued.

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.

Some employers operate exclusively on a continuous rotation of cycling client contracts won and lost regularly, but what does it mean for the employees engaged to perform work under those contracts?

As our readers are aware, we have previously blogged about including psychological testing as part of a pre-employment medical. Building on that theme we now comment on a recent FWC decision involving an employer’s ability to have existing employees undergo a psychological medical examination.

In the recent case of Mr Christopher K v Linfox Australia Pty Ltd [2015] FWC 3967 the Fair Work Commission confirmed that there will be a valid reason for the termination of an employee’s employment where they are unable to perform the inherent requirements of their position.

Employees have an implied duty to obey their employer’s reasonable and lawful directions. Whilst employers cannot direct an employee to engage in conduct which is unlawful, the reasonableness of an employer’s direction will depend on the individual circumstances.

Ending the employment relationship can sometimes be difficult and often, those responsible for facilitating the termination are so relieved to have it all over that they don’t worry about pursuing the return of seemingly insignificant employer property, like used uniform items.

In a recent Fair Work Commission decision the FWC commended the Employer for its process in terminating the employment of a habitual latecomer.

In Peter Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express [2016] FWC 58 (Mulhall’s Case) Commissioner Simpson ordered the Employer to pay the Applicant $25,468.13 in compensation because the Commissioner found that Mulhall had been unfairly dismissed on the basis of “flimsy” surveillance footage.

BlueScope Steel Limited was successful in its urgent Federal Court of Australia application to prohibit a former employee from using or destroying its confidential information, including intellectual property and software.

In a recent decision of the Federal Circuit Court of Australia, Rosa v Daily Planet Australia Pty Ltd & Anor [2016] FCCA 312, employers are once again reminded that employment of an employee can only be terminated on a lawful basis.

In our recent blog we discussed the Fair Work Commission (FWC)’s discretion to make a costs order in exceptional circumstances.  The FWC in F v GHS Regional Pty Ltd [2016] FWC 3120 has decided to exercise its discretion to award costs in favour of the Employer once again.

Last month, the Fair Work Commission handed down a decision criticising a manager for dismissing an employee by text message. This decision is far from the first condemning employers for dismissing employees via text message, but it does highlight the FWC’s ongoing frustration with employers who have no regard for procedural fairness.

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation. Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.

When a company is confronted with a downturn in business it can be a very difficult time for both employers and employees. As part of ensuring the financial viability of the business employers are often forced to consider reducing workforce size by way of forced or voluntary redundancies. But, it’s not always the case that an employer needs to resort to redundancies to reduce its wages costs. In a recent decision of the Fair Work Commission, an employer was praised for its efforts to retain staff during a difficult period.

Fairness is a term ingrained in the Australian workplace relations system. At the core of our federal industrial relations framework is the Fair Work Act 2009 (Cth), the umpire of our industrial relations disputes is the Fair Work Commission and we employ a minimum safety net of employment conditions for the purpose of ensuring fairness to workers. In fact, there are no less than seven references to fairness (in one form or another) in the stated objects of the Fair Work Act.

A recent Fair Work Commission (FWC) highlights the importance of procedural fairness in disciplinary matters.

Under the Fair Work Act 2009 (Cth), employees have 21 days from the date of the termination of their employment to lodge an application for unfair dismissal with the Fair Work Commission (FWC). If an employee misses this deadline, they are barred from bringing their claim unless they demonstrate to the FWC that exceptional circumstances apply to their case.

Employers unfamiliar with the unfair dismissal process often overlook an important part of their response to an unfair dismissal application: whether the former employee is even eligible to make a claim!

Employees who are employed on working visas (for example subclass 457 or 417 visas) are able to make applications for unfair dismissal and have their case heard by the Fair Work Commission (FWC). An employer who fails to afford procedural fairness to a working visa employee can still find themselves in trouble in the FWC as demonstrated in GS v Dairy Kosher Catering Pty Ltd T/A Milk n Honey [2016] FWC 5284.

In a recent decision of the Fair Work Commission (FWC) (B v Conair Australia Pty Ltd [2016] FWC 6520) a HR manager was found to have been fairly dismissed after taking her personnel file from her employer’s premises and not returning it when directed to do so.

Fair Work Commission’s (FWC) Full Bench decision in Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub Case) is a good reminder for employers about the need for clarity with respect to termination of employment and in particular when a termination is to take effect.

The Fair Work Commission (FWC) has recently handed down two separate decisions confirming 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) for terminating an employee’s employment.

The Fair Work Commission’s (FWC) recent decision in CA v Lane Cove Retirement Units Association Ltd t/as Pottery Gardens Retirement Village [2016] FWC 7504 put the small business fair dismissal code (the Code) in the spotlight.

It’s true that many safety breaches in the workplace are the result of momentary lapses in judgement, however employees who are recklessly indifferent to their health and safety obligations will not always be saved by arguing this point.

At the end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”

In determining whether an employee’s termination was harsh, unjust or unreasonable, s 387 of the Fair Work Act 2009 (Cth) (FW Act) provides a list of criteria the Fair Work Commission will consider. One such criterion is whether there was any unreasonable refusal by the employer to allow the person to have a support person present in any discussions relating to dismissal.

In unfair dismissal applications, the Fair Work Commission must look at the factors under section 387 of the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.

In Willmot v BlueScope Steel Limited [2017] FWC 4309, the Fair Work Commission considered an unfair dismissal application made by an employee who was summarily dismissed for serious misconduct in relation to his worker’s compensation claim.

When employers conduct an organisation-wide review of their operations, it can be both an exciting and challenging time. There are significant gains to be made by identifying inefficiencies and addressing them. However, the desire to move too swiftly and rush this process should be avoided. Moving too fast may result in employers either intentionally or unintentionally disregarding their legal obligations to employees.

Thankfully, most employers will never have to concern themselves with disciplining employees for their out of hours conduct, but on occasion an employee’s conduct after business hours and away from work can be so damaging or dangerous that an employer will have little option but to get involved.

In Shakir v Department of Family and Community Services [2017] NSWIRComm 1040, Commissioner Newall upheld the dismissal of an employee but criticised the employer for relying on conclusions made in an investigation report that were factually wrong.

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.

Employees often argue that they have a “right” to a support person when they are invited to attend a “show cause” or termination meeting.  Do employees have this “right”? Should a disciplinary meeting go ahead if the employee does not bring a support person?

Setting policies and procedures for the effective management of drugs and alcohol in the workplace is important, particularly for safety critical industries.

Section 117(1) of the FW Act states that, an employer must not terminate an employee’s employment unless, the employer has given the employee written notice of the termination date. This can sometime be problematic when termination occurs verbally before any formal written notice of termination has been prepared.

Identifying correct Modern Award coverage and classification can be challenging at the best of times and getting it wrong can have serious consequences. It is well understood that misclassifying employees can impact on rates of pay and result in underpayment claims, but employers sometimes forget that employees who are paid well above modern award base rates of pay can still be covered by a modern award for other purposes, including protection from unfair dismissal.

Workers compensation legislation in each jurisdiction provides a “reasonable management action” defence or exception to claims of alleged psychological injury. The defence states that where an employee suffers a psychological injury as the result of management action, the employer will not be liable for that injury if the management action was reasonable and carried out in a reasonable manner.

In part one and part two of our Employment Essentials Series we discussed procedural aspects of termination and the need for substantive fairness. In this third instalment we will discuss the various outcomes and ramifications for employers if they fail to settle an unfair dismissal claim before proceeding to a formal hearing and the potential fallout post proceedings.

For most employers the disciplinary process with its obligation to ensure procedural fairness usually leads to a well-documented but often protracted process. For small business employers, where an employer has followed and is compliant with the requirements of the Small Business Fair Dismissal Code, the employee is not (generally) to be considered to be unfairly dismissed.

When considering whether a dismissal is unfair, the Fair Work Commission (the FWC) will have regard to two types of fairness – procedural fairness and substantive fairness.

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

Whether the termination of an employee’s employment was procedurally fair or unfair forms the basis of the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). Employers can often put themselves at risk of unfair dismissal claims when procedural fairness is not provided to employees during disciplinary action and / or the termination process.

The requirements around when notice of termination is required and how to provide that notice can be difficult for employers. An employer’s obligations with respect to notice and notice periods are specified in the Fair Work Act 2009 (Cth) (FW Act).

The Fair Work Commission (FWC) has released its Unfair Dismissals Quarterly Report for the period October 2016 to December 2016 (the Report). The Report revealed that there has been a decrease in the number of applications lodged with the FWC compared to the same period in previous years.

We know people can say or do things that we do not mean when we are under pressure, feeling stress or are angry. In rare incidences (often in the context of disciplinary meetings), an employee may indicate that they wish to resign only to later try to withdraw their resignation or claim that they did not really resign.

Restraint of trade clauses are often used in employment contracts to prevent or limit an employee from engaging in conduct that is adverse or inconsistent with the employer’s interests once employment has ended. Typically, employees are restrained from soliciting clients or establishing competing businesses.

The decision of the Fair Work Commission in NW v Taitung Australia Pty Ltd [2016] FWC 7982 reminds employers of the requirement to act quickly where an employee has been found guilty of serious misconduct even if the matter is the subject of a police investigation.