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Best Practices for Dismissing or Disciplining Public Sector Employees

Disciplining and dismissing an employee is a fraught but necessary aspect of the employer/employee relationship, and given the potential legal risks arising from dismissals they must always be carefully considered and managed.

Even where a valid reason for dismissal exists (e.g. for poor work performance or serious misconduct), an employer must still take care to afford an employee appropriate procedural fairness, have regard to their legal and industrial obligations, and ensure that any dismissal is not influenced by any discriminatory or other unlawful factors. [...]  READ MORE →

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Bullying and Harassment Claims High in Local Government

Safe Work Australia have identified that local government employees are the third most represented group when it comes to compensation claims for Workplace Bullying and Harassment.

For the three years to 2016, approximately 190 local government employees received compensation for workplace bullying and harassment a year.

Bullying and harassment can take varying forms. It can be subtle or take the form of more overt behaviour.

What is Workplace Bullying and Harassment?

Bullying at work, as defined by the Fair Work Act 2009, occurs when: [...]  READ MORE →

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New – Fixed Term Contracts Expose Employers to Unfair Dismissal

In a decision that upends a decade of legal precedent, the Full Bench of the Fair Work Commission has opened the door for employees engaged under fixed or specified-term contracts to bring unfair dismissal claims at the end of their contract term.

It has long been accepted that:

  • employers are free to structure their affairs, including the contracts they offer to employees, in the way that they think best suits their interests
  • this freedom has led to the proliferation of fixed-term or maximum-term contracts
  • where these types of employment agreements expire at the conclusion of their term, employees are not eligible to bring unfair dismissal claims because the expiry of the agreement does not result in a ‘termination of employment at the employer’s initiative’
    •  [...]  READ MORE →

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    Unfair Dismissal – Are Employers on their Own?

    A recent decision of the Fair Work Commission may force employers to fend for themselves in proceedings before the Commission, such as unfair dismissal, by denying them the right to even have legal assistance in the background.

    In Stephen Fitzgerald v Woolworths Limited:

    • section 596 of the Fair Work Act requires a party involved in a matter before the Fair Work Commission to seek leave to be represented by a lawyer or paid agent
    • the employer (a national supermarket chain with a dedicated HR department) wished to be represented by a lawyer at a contested unfair dismissal hearing
    • this request was refused, however, the Fair Work Commission stated this did not prevent the employer from obtaining background or shadow assistance from its lawyers prior to the hearing
    • on appeal, however, it was held that the concept of legal representation extends beyond mere advocacy at the final hearing and into the realm of advice and/or the preparation of documents beforehand

    Employers must be conscious that the right to legal representation in the Fair Work Commission is not automatic or guaranteed and can potentially exclude an employer from having the benefit of pre-hearing legal assistance.

    Thus, all employers are strongly encouraged to seek early and proper advice from an employment lawyer as to: [...]  READ MORE →

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    Dismissed Woolworths Worker Denied Legal Representation

    Employment Law – Background

    In a Fair Work Commission ruling, a warehouse team leader and Woolworths (MLDC) have both had their requests for legal representation denied, on the basis the unfair dismissal claim was “not complex enough”.

    Employment Law – Facts

    In essence:

    • The team leader was summarily dismissed in May 2017 for apparently engaging in serious safety breaches, such as going underneath a forklifts tyres and failing to take immediate corrective action or follow standard risk assessment procedures for workplace hazards.
    • In applying for unfair dismissal, the employee sought to be represented by a paid agent on the basis he would struggle to argue his own case or cross-examine witnesses.
    • The employee also argued that it was unfair to deny both parties legal representation because MDLC had in-house HR/IR staff with “superior legal and communication skills”. However MDLC disputed this, highlighting that their in house HR were not legally trained or skilled in advocacy
    • MDLC argued that they required legal representation as it “could not properly articulate all the issues”, and that if the team leaders request was granted, it would create an uneven playing field.

    Employment Law – Fair Work Commission Decision:

    The Fair Work Commission:

    • denied both parties requests for legal representation as it may create “unnecessary formality”
    • accepted that whilst that whilst there were conflicting facts, the case was one which did not “contain a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter”
    • emphasised that refusal of both applications was necessary because it “will not lead to a situation of unfairness for either party.” It was stressed that a there would be a “significant imbalance” between the parties if one party was granted legal representation over the other
    • maintained that both parties were well equipped to represent themselves, in that whilst MDLC are not “legally trained and experienced with advocacy, they are experienced in dealing with employee relations matters”. Similarly, the former employee is an “experienced team leader who was responsible for the management of a significantly large number of employees”

    The decision is available for you to read through the hyperlink:

    Christian Guillemain v Woolworths Limited T/A Melbourne Liquor Distribution Centre [2017] FWC 4236 (15 August 2017) [...]  READ MORE →

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    Employment Law – The Need for Proper Workplace Investigations

    Employment Law – Background

    Employment claims like bullying and unfair dismissal continually on the rise in employment law. Consequently, employers are increasingly required to take pro-active steps to investigate suspected workplace incidents and disputes before they lead to such claims.

    A workplace investigation is a formal investigative process into an alleged workplace incident or dispute and it may be necessary to undertake same even if the complainant objects to it (ie, because they only wish to make an informal complaint). [...]  READ MORE →

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    Employment Law – s 457 Visa Entitlements

    Employment Law – Background

    The Australian Government announced the abolition of the Temporary Work (Skilled) visa (subclass 457 visa) in April 2017. They will be replaced with the Temporary Skill Shortage (TSS) visa in March 2018. Consequently, employment law questions have arisen regarding the entitlements afforded to such workers in this transition period.

    Common questions include:

    • Could the employee successfully claim unfair dismissal?
    • Is an employee on a 457 visa entitled to redundancy pay if there is no further work when the visa expires?

    Employment Law – The Fair Work Act 2009 (Cth)

    s386(2) provides that an employee is excluded from claiming unfair dismissal if:

    • the employee is employed on a contract;
    • for an unambiguous specified period of time; and
    • whose employment is terminated at the end of that specified period

    Employment Law – Case Decision

    A decision of the Full Bench of the (then) Australian Industrial Relations Commission held that a s457 visa can be used to specify the fixed time period of an employment contract. This is provided that the parties have a sufficiently proven understanding of the terms of the visa and the contract of employment. This understanding must therefore include the period of employment and most notably, the end date. [...]  READ MORE →

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    Fair Work Commission: On-Hire Worker Unfairly Dismissed

    Employment Law – Background

    In Tasmanian Ports Corporation Pty Ltd t/a Tasports v Mr Warwick Gee, the Fair Work Commission confirmed that labour hire companies cannot dismiss workers on the grounds that they have run afoul of a host employer.

    Employment Law – Facts

    In essence:

    • A shiploader was dismissed by TasPorts in 2015 after his access to a site in Tasmania was revoked by his host employer, iron ore miner Grange Resources Limited
    • Grange Resources accused the shiploader of misconduct and blocked his access to the port after he allegedly failed to follow reasonable work directions, breached reporting protocols and posted unauthorised photos of their assets on social media
    • Tasports argued that there was a valid reason to dismiss the shiploader under s387(a) of the Fair Work Act as he no longer had the capacity to do the job and access the site

    Employment Law – Fair Work Commission Decision

    The full bench of the Fair Work Commission:

    • Concluded that the Grange Resources removing the shiploader from a site was not a valid reason for their dismissal, utilising the principles set out in Kool v Addeco which established that the individual circumstances of the case determine whether there was a valid reason.
    • They confirmed the approach taken in the Adecco and Pettifer cases, whereby “the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee” and that “labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly”
    • Found that Tasports had failed to establish that the host employer had a legal right to remove the ship loader, or that it was unable to maintain his employment
    • Criticised the fact that Tasports had failed to independently investigate whether the shiploader committed the alleged misconduct. They also failed to adequately consider alternatives for the shiploader’s redeployment
    • Referred the matter back to the deputy president to consider the appropriate remedy

    Employment Law – Tips for Employers

    Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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    Employment Law: Compensation for Unfairly Sacked Truckie

    Employment Law – Background

    In SR v Geelong & Surfcoast Laundry T/A Swim Alumni Pty Ltd, the Fair Work Commission ruled that a truckie involved in three accidents and an alleged road rage incident was unfairly dismissed.

    Employment Law – Facts

    In essence:

    • the employee was employed by Surfcoast Laundry as a casual truck driver from March 2015 until November 2016
    • the employee was dismissed for having three accidents in a year and for allegedly being involved in a road rage incident
    • however, the employee received no written warnings, was not told the reason for his dismissal at the time it occurred and was not given an opportunity to respond
    • Surfcoast Laundry claimed the dismissal was in accordance with the summary dismissal section of the Small Business Fair Dismissal Code which indicated that it was fair to dismiss an employee without notice or warning if an employer believes on reasonable grounds that an employee’s conduct was sufficiently serious to justify immediate dismissal.

    Employment Law – Fair Work Commission Decision

    The Fair Work Commission:

    • found that whilst intervention may have been warranted, the dismissal was disproportionate to the severity of the conduct
    • whilst the employer’s evidence that the accidents and alleged road rage incident contributed to the decision to dismiss, it was held that the operative reason for dismissal was the employer’s annoyance at the employee complaining about underpayments
    • held that the termination was harsh, unjust and unreasonable due to the lack of procedural fairness and the lack of a valid reason for dismissal
    • the employee was awarded $14,995 in compensation

    Employment Law – Tips for Employers

    Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

    • review this Fair Work Commission decision
    • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
    • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
    • fairly, consistently and lawfully respond to breaches of employment laws including Awards and enterprise agreements
    • follow good HR practice when it comes to performance management
    • not unreasonably apply the Small Business Fair Dismissal Code
    • raise any employment law questions with an employment lawyer

    The decision is available for you to read through the following hyperlink: [...]  READ MORE →

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    Fair Work Commission: High Earner Can Pursue an Unfair Dismissal Claim

    Employment Law – Background

    In Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd, the Fair Work Commission ruled that a regional director of a multibillion dollar real estate business could purse his unfair dismissal claim despite earning over the high income threshold as his duties indicated he was actually a sales representative under an Award.

    Employment Law – Facts

    In essence:

    • the former capital markets regional director claimed that he was unfairly dismissed when he was made redundant by Jones Lang LaSalle (Vic) Pty Ltd (JLL)
    • JLL made a jurisdictional objection to the application claiming that the employee was not a person protected from unfair dismissal within the meaning of s382 of the Fair Work Act
    • JLL argued the employee was a senior manager with significant leadership, mentoring and business generation responsibilities which went beyond the classifications in the Real Estate Industry Award 2010 (Award)
    • JLL also claimed the employee wasn’t protected from unfair dismissal due to his earnings surpassing the high income threshold

    Employment Law – Fair Work Commission Decision

    The Fair Work Commission:

    • held that the employee could pursue his unfair dismissal claim despite earning well-over the high income cap as the duties he undertook fell “squarely within the role definition of a property sales representative’ set out in the Award
    • formed this view because the question of Award coverage is determined not by a person’s title, rather “it is the duties performed that will be of significance”
    • noted the employee’s title of “regional director” was merely a “rank or accolade”
    • held the employee’s position in the hierarchy said little about his role “other than that he was a high performing successful employee”
    • disagreed that the employee was a senior manager as there was nothing in his regular duties which could be described as a managerial function and he had no direct reports – whilst he had general leadership expectations, it was found that these would be common amongst “most employers in the real estate industry
    • ultimately, it was held that the “fundamental or principal purpose” for which the employee’s position existed was to sell real estate, which fell under the Award
    • the employee was therefore protected from unfair dismissal

    Employment Law – Tips for Employers  [...]  READ MORE →

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    Employment Law – Informal Approach Acceptable

    Employment Law – Background

    Recently, the Fair Work Commission refused an unfair dismissal claim by an employee who was terminated without receiving prior formal warnings.

    The case demonstrates the flexibility of the Fair Work Commission in accepting an employer’s informal efforts to address workplace issues.

    Employment Law – Facts

    In essence:

    • in July 2015, the FMG Personnel Services (FMG) inventory controller and his manager discussed his work requirements for the next 12 months
    • it became evident the employee “lacked the necessary skills, capabilities and knowledge to adequately perform his role and that his manner and attitude to customers and internal personnel was unsatisfactory”
    • the manager believed the employee failed to grasp concepts required of his role or prioritise duties
    • the employee was alleged to have failed to comply with business processes. Furthermore, he was considered to be incapable of maintaining effective work relationships
    • from September 2015, a manager ‘informally’ performance managed the employee for a period of 10 months. In this period, the seating arrangement was changed to sit the employee next to the manager for daily coaching and individual training sessions
    • on one occasion, the manager conducted training for the entire team offsite despite the training being targeted only at the employee
    • in July 2016, FMG placed the employee on a performance improvement plan. Following this, the employee emailed HR denying any supposed performance issues
    • customers consequently eventually refused to communicate with the employee
    • consequently, the employee was dismissed in August 2016
    • the employee made a claim for unfair dismissal because he alleged there were no formal warnings, contemporaneous file notes or formal performance management

    Employment Law – Fair Work Commission Decision

    The Fair Work Commission:

    • held there was a “complete divergence” between the views of FMG and the employee
    • stated “…FMG sought to clearly communicate to [the inventory controller] what their performance expectations were and that FMG diligently endeavoured to assist [the inventory controller] to achieve these expectations”
    • considered FMG had reasonable grounds to conclude an informal approach was likely to be more successful
    • furthermore, accepted FMG had genuine and reasonable concerns about the employee’s ability to comprehend deficiencies in his performance. In addition, the employee believed training and coaching were “ordinary workplace conversations”
    • stated that such “exchanges were intended to be, and are properly characterised as, informal performance management”

    The decision is available for you to read through the following hyperlink:

    Mr Robert Etienne v FMG Personnel Services Pty Ltd [2017] FWC 1637 (25 May 2017)

    Employment law – Tips for Employers

    Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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    Fair Work Commission – Investigation Procedural Deficiencies

    Background

    The Fair Work Commission has found that the sacking of a mother and daughter by an abortion clinic was unfair because the clinic failed to adequately investigate the allegations of fraud and bullying made against the pair [1].

    Facts

    In essence:

    • There were allegations that the practice manager of the clinic bullied nurses by threatening to dismiss them because they had left unconscious patients unattended.
    • Further allegations were made that both the practice manager and her receptionist daughter were incorrectly recording their hours, such as by failing to record cigarette breaks and long lunches
    • In denying the claims, both the practice manager and receptionist claimed that the director of the clinic had concocted the allegations in order replace them with his own wife and daughter.
    • There were also claims that the director stated he could not “afford to have himself or his business” involved in anti-bullying application brought by the nurses at the Fair Work Commission

    Fair Work Commission – Decision

    The Fair Work Commission:

    • Concluded that the dismissal was unfair because the director failed to conduct a comprehensive investigation into the bullying allegations or attempt to resolve the problems between the parties
    • Although the applicant’s inaccurate recording of time and wages was a valid reason for dismissal, the respondents argument was undermined by the “significant procedural deficiencies” in the dismissal process, including not enough time being given to the employees to prepare a “cogent” response to the allegations
    • Found that ultimately it was “underlying commercial and interpersonal factors between staff” that led to the director’s decision to terminate the practice managers employment
    • Awarded the practice manager $4500 in compensation for four weeks’ wages.
    • However, the Fair Work Commission declined to make orders to compensate the receptionist as she had “promptly secured alternative employment”

    Employment Law – Tips for Employers

    Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

    • review this Fair Work Commission decision
    • seek the assistance of an employment lawyer to understand the impacts of this decision
    • ensure that where allegations of misconduct arise in the workplace, that those allegations are properly investigated and the employee concerned is given a fair opportunity to respond to the allegations
    • ensure that where disciplinary action is contemplated, in particular potential dismissal, that a procedurally fair process is followed prior to any decision being made
    • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
    • damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)
    • raise any employment law questions with an employment lawyer

    Employment Law – More Information

    Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →