Posts: Unfair Dismissal

Where there is a factual dispute about allegations made against an employee, employers must ensure that the allegations are properly tested before proceeding to a disciplinary process. This will ensure that the employee has been provided with procedural fairness and any reasons relied on by the employer as grounds for dismissal are valid.

When engaging overseas workers to perform work for an Australian entity, employers need to be mindful of the risks that such workers may be considered employees to whom the Fair Work Act 2009 (Cth) might apply.

When conducting workplace investigations, one issue that we commonly face is ensuring that the process is completed in a timely manner to minimise any disruption and uncertainty in the workplace. However, whilst investigations should be completed as quickly as possible, this must not come at the expense of procedural fairness being provided to all employees involved.

In the wake of challenging economic circumstances and increasing episodes of poor employee behaviour, employers may be required to make difficult, but necessary, decisions in relation to its workforce.

Many businesses, and in particular small businesses employers subscribe to human resources information systems which offer access to template letters and policies to provide a ready-made solution or to manage human resources administration.

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.

All employees (including part-time and casual employees) will soon have the entitlement to 10 days of paid family and domestic violence leave per year under the National Employment Standards, replacing the existing entitlement to five days of unpaid family and domestic violence leave.

The Fair Work Commission has reminded employers about the duty to afford procedural fairness to employees prior to dismissal.

When considering changes to an employee’s employment, employers need to be mindful that significant reductions in remuneration or duties may constitute a “dismissal” under the Fair Work Act 2009 (Cth).

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.

In her usual entertaining and informative style, our Managing Director and Principal, Athena Koelmeyer, will guide employers through the tangled web of legislative obligations they face when dealing with an injured employee.

It is not uncommon for employers to state that they have a “zero-tolerance” policy about breaches of certain workplace policies and procedures – particularly when it comes to compliance with work health and safety obligations.

From 1 July 2022, the high income threshold increased to $162,000 per annum.

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.

There are often misconceptions about how many times an employee must be warned regarding their poor performance before they are able to be dismissed. Although there is no legislative requirement stipulating the number of warnings required, the Fair Work Act 2009 (Cth) provides that an employee must be warned about their unsatisfactory performance before they are dismissed for that reason.

Today, HR administration systems make it easier than ever for employees to update their personal contact details. However, when there is formal communication to be sent to employees, employers should also ensure that they have the most up to date details for their employees to avoid any dispute about when information was sent or communicated.

The physical return-to-work happening at many workplaces will also see the return of work-related events in an effort to reacquaint employees after a string of lockdowns and stay at home orders.

In the unfair dismissal jurisdiction, the Fair Work Commission (FWC) imposes a strict 21-day time limit for employees to file unfair dismissal applications. The clock starts running from the date the dismissal takes effect.

Two decisions of the Fair Work Commission (FWC) have reinforced that a failure to comply with public health orders or directions which mandate vaccinations will be a valid reason for dismissal.

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.

If considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing.

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.

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.

For an employee to access the unfair dismissal jurisdiction, they must be “dismissed” from their employment by the employer. In some instances, a resignation can be a “dismissal”, when an employee is forced to resign due to the employer’s conduct. This is referred to as a “constructive dismissal”.

The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) (FW Act) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the FWC (such as all documents or records relating to a dismissal process).

In the unfair dismissal jurisdiction, the Fair Work Commission (FWC) is required to consider a number of factors under the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.

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.

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission. The statutory limit starts from the date the dismissal takes effect.

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.

Social media and employee’s conduct online has without doubt added a layer to the employer and employee relationship. While employees may think that their online activities done outside of work hours may be private, their conduct online may become relevant to their employment, for example, where it may disparage their employer, other employees or clients.

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.

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.

A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable.

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.

In response to the COVID-19 pandemic, the Full Bench of the Fair Work Commission amended the Clerks – Private Sector Award 2020 in March 2020 to include temporary measures to facilitate working from home arrangements.

The Federal Circuit Court of Australia has rejected an employee’s claim that she was discriminated against because of her pregnancy and potential pregnancy.

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.

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

The Queensland Government recently passed legislation amending the Criminal Code Act 1899 (the Code) to criminalise wage theft by employers in Queensland.‍The Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (the Bill) was introduced to the Queensland Parliament in response to a Report released in 2018 by the Queensland Parliamentary Education, Employment and Small Business Committee following an inquiry into wage theft in Queensland. The Report identified critical issues in wage theft as well as deliberate action taken by employers to frustrate employees’ attempts to recover entitlements.

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission which provide some good guidance for employers.

‍NEWS ALERT - Paid Pandemic Leave introduced into Health Sector Awards Over the course of 2020, the Full Bench of the Fair Work Commission (the Full Bench) has heard and determined applications to vary modern awards to deal with the COVID-19 pandemic.

2020 continues to deliver unprecedented challenges to employers as they manage the economic and workplace culture impact of COVID-19. Difficult, but necessary, decisions taken in relation to workforce numbers together with increased poor employee behaviour has seen a dramatic rise in the number of unfair dismissal and adverse action claims.

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.

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.

In the reporting year 2018/2019, the Fair Work Commission (FWC) received 13,928 unfair dismissal applications. Undoubtedly, unfair dismissal applications are amongst the most common received by the FWC.

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

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.

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.

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

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

The Fair Work Act 2009 (Cth) (FW Act) provides that a person will not be unfairly dismissed where the person was dismissed as a result of genuine redundancy.

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 matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.

In a matter recently before the Federal Circuit Court of Australia an employer successfully claimed that an employee acted unreasonably in the course of proceedings and the employer was awarded costs of $35,000.

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.

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.

Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

Small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation.

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.

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.

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

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.

FWC has found an employer was unreasonably inflexible when it dismissed an employee who had requested to finish work 15 minutes early to attend prepaid Pilates classes.

Managing conflicting personalities can be one of the most challenging aspects of being a manager. Particularly when low level disagreements escalate to formal complaints, investigations, attempts at character assassination and breaches of confidentiality.

It has often been the case that “managers” and senior officers of an enterprise will not be covered by a modern award or enterprise agreement.

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.

Employers should be mindful that employees have a responsibility for health and safety within the workplace and are entitled to (and should be encouraged to) raise health and safety matters.

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.

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances.

The Fair Work Commission recently handed down a decision in which it considered whether an Uber driver could be an employee for the purposes of the Fair Work Act 2009.

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.

A recent decision by Deputy President Bartel of the Fair Work Commission in Jaymon Hocking v Tackle World Adelaide Metro [2015] FWC 6519 (Hocking’s Case) provides yet another valuable lesson for employers in relation to Modern Award compliance.

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.

Generally speaking, most matters in the Fair Work Commission run in a “no costs” jurisdiction. This means that parties bringing or responding to applications in the Commission will be responsible for their own costs - no matter who is successful. However, the Commission does have some discretion to order costs in exceptional circumstances. One such rare decision was handed down last week in G v Toll Holdings Ltd [2016] FWC 2790.

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.

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other. We look back on some of the more interesting social media cases from the year that was 2017.

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.

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

For the 2014-2015 year, 79% of unfair dismissal applications made to the Fair Work Commission (FWC) were settled at the conciliation phase. For the 21% that did not settle, some Applicants proceeded to have their matter heard by way of hearing.  If an Applicant is not satisfied with the outcome at the hearing they are able to lodge an application to appeal.  However, in order for an application to appeal to be granted, the Applicant must satisfy the FWC that it has proper grounds for an appeal.

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.