Unfair Dismissal – Your worker has been with you for HOW long?

How long does an employee have to be employed before they’re eligible to make an unfair dismissal claim?  The short answer is “that depends on the size of your business.”  If you’re a small business, the employee will have 12 months before they can claim eligibility. If you employ more than twelve employees, they will only have six months. But how is that six months calculated?   In Emma Wells v ABC Blinds & Awnings...

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Doctors Boss fined over $50,000 for threatening worker

The fact that an employer is a small business, that is having fewer than 15 employees, does not stop significant penalties being imposed upon it for proven breaches of the Fair Work Act. Whatever size its business, an employer, must comply with the law. This much is plain from the decision in FWO v Windaroo Medical Surgery Pty Ltd & Others (No 2) [2016] FCCA 2505. In this case the Federal Circuit Court awarded penalties totalling $51,480 against the employer and two managers, who had been involved in breaches of the Act. The...

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Employer’s liability for the criminal conduct of its employees

  The High Court of Australia in a recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 looked at the vexed issue of vicarious liability for institutions arising out of sexual abuse. The majority of the High Court found that a criminal offence such as sexual abuse by an employee does not prevent the possibility that the institution will be liable vicariously. The High Court determined that the relevant test to be considered is whether in this case the role of the housemaster placed him in a position of power...

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You need to finish what you start

The Fair Work Commission is committed to “a fair go all round”. This does not mean, however, that it is there purely for the convenience of one party to an application. This much is demonstrated in Newbey v Atlas Group Pty Ltd [2016] FWC 5246. On 22 April 2016 Mr Newbey applied for an unfair dismissal remedy arising from the termination of his employment at Atlas. When Atlas lodged its response saying that the termination was a genuine redundancy the commission listed the application for conferences and directions, neither of...

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Fixed means just that

A security guard employed at the Manus Island Detention Centre has been found not to have been unfairly dismissed when extensions to a fixed term contract of employment ended. The decision is reported at Cowan v Wilson Parking Australia trading as Wilson Security [2016] FWC 5768. Mr Cowan was employed as a security guard at Manus between March 2014 and April 2016. His original contract of employment had an end date of 30 September 2014. When the contract was about to end he was offered a further contract, which took him to October...

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Please ask nicely

Peter Lambos was a bus driver with the ACT Internal Omnibus Network. In September 2014 he was having problems with his driver’s seat and complained about it to a manager. Three months later, the problem persisting, he contacted his employer’s workplace health and safety coordinator. There was a dispute as to what Mr Lambos actually said to the coordinator in their conversation but it was not disputed that he mentioned “Columbine”, a reference to the spree killings at Columbine High School in the United States in 1999. Mr...

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Don’t be late! These are the risks of filing an unfair dismissal application out of time.

If you are terminated from your employment, you will only have 21 days from the date the dismissal takes effect to file an unfair dismissal of general protections application with the Fair Work Commission. The Fair Work Commission is notoriously strict with its application filing deadlines and will only extend the time for lodgement in exceptional circumstances. In the matter of Langtry and Mitolo Group Pty Ltd, the applicant filed his application seven weeks’ out of time. Mr Langtry’s explanation for his late lodgement was that he was unaware...

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The importance of hospitality venues getting proper advice about pay obligations

It is most important that employers make sure they understand what wages they need to pay their employees, including penalty rates and payments for public holidays. This issue has recently been highlighted with a restaurant chain being obliged to reimburse staff $21,700.00 for underpaying employees for their Christmas day entitlements. Many underpayments are inadvertent but it is important to ensure that restaurants comply with their minimum obligations under the Australian Workplace laws. Employees who wish to ensure they comply with...

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Sticks and stones may break bones but names can get you sacked

Many employers have policies or codes of practice to govern the relationships between employees. Employees who abuse their colleagues or gossip about them can face dismissal as a sanction because what they say is a breach of the employer’s polices or codes. The Fair Work Commission recently heard two unfair dismissal applications that related to misconduct based on what employees said. In Sayers v CUB Pty Ltd [2016] FWC 3428, the Commission found that a dismissal based on an employee swearing and racially abusing a colleague...

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Lost your licence? Lose your job

If an employee loses his driver licence where driving is a part of his work, he can be fairly dismissed for misconduct. This much is demonstrated by the decision in Zeiter v Melway Bin Hire and Demolition Pty Ltd [2016] FWC 2823. Mr Zeiter was stopped by police for using a mobile phone while driving. During the stop the police notified Mr Zeiter that his licence had been suspended for a period of three months. When Mr Zeiter told his employer about the difficulties with his driver licence the employer effectively terminated him but...

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Reinstatement is the primary remedy

Under the Fair Work Act 2009 the primary remedy for an unfair dismissal is reinstatement of the employee to employment. Yet even where reinstatement is sought, the Fair Work Commission does not often order it. One reason seems to be that employers consistently argue that reinstatement is simply not viable because the trust and confidence necessary for a continuing employment relationship has been broken. The decision in Singh v Metro Trains Melbourne Pty Ltd [2016] FWC 2291 demonstrates the circumstances in which the Commission...

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Gun mistake not grounds for summary dismissal

An Australian champion clay shooter, who had Senator David Leyonhjelm as his support person at the meeting to discuss his future employment was found to have been fairly dismissed but entitled to notice: Waters v Goodyear Australia Pty Limited [2016] FWC 1991. Mr Waters breached a number of his employers’ policies when he acquiesced in a person whom he was mentoring in clay shooting bringing a gun into the vicinity of his workplace. After a comprehensive investigation, the employer found that Mr Waters’ actions constituted serious misconduct....

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Don't wait until it's too late!

If you have been dismissed from your employment, you only have 21 days from the day your dismissal takes effect to file an unfair dismissal or general protections application with the Fair Work Commission.   The Commission will accept out-of-time applications only in exceptional circumstances and these can be difficult to prove. In the recent case of Martin v LJ Hooker Colleroy, the Applicant filed his application nine days past the lodgement date. He provided several different reasons all contributing to his late filing time,...

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Double Jeopardy – Can you fire an employee twice?

The Fair Work Commission recently heard a case where an employer dismissed  an employee and then summarily dismissed him again while the employee was working out his notice period. Initially, the Employer dismissed the employee due to his poor performance and failure to meet targets. The employee was then required to work out his notice period. Whilst the employee was working out his notice period, it was discovered that he had emailed numerous documents, including confidential information, to his personal email account. As a consequence,...

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Notice would have made dismissal valid

Moskou v Specialist Diagnostic Services Pty Ltd [2015] FWC 8608 is an example of where summary dismissal for what occurred was deemed harsh but dismissal with notice would have been deemed fair.  A courier driver, who was suffering from gastroenteritis, defecated in a client’s carpark and failed to clean up properly or report the incident to his manager.  Commissioner Cribb decided the actions constituted misconduct but not serious misconduct warranting summary dismissal and ordered compensation of one week’s pay in lieu of noti...

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If it looks like a duck and quacks like a duck… Is it a duck?

In December last year, the High Court of Australia handed down judgment in the matter of Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd. Quest Serviced Apartments (“Quest”) employed two housekeepers over several years. It then entered into a contract with Contracting Solutions whereby the two women would become independent contractors engaged by Contracting Solutions, though they continued to work for Quest and performed the same roles. This arrangement was effectively sham contracting, which is prohibited under Commonwealth legislation....

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Employer penalised for deducting monies from wages

Late last month, a Victorian cleaning business learned that deducting or withholding monies from employees is not permitted except in very specific circumstances. Oz Staff Career Services Pty Ltd employed 102 casual cleaners pursuant to the Cleaning Services Award 2010. The employer deducted monies from its employees’ pay for meals without authorisation on three occasions over two months. After conducting an audit of the business, the Fair Work Ombudsman took legal proceedings in the Federal Circuit Court against the company and its chief executive...

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Labour Hire Employee dodges the short end of the candy stick

Labour hire companies operate to connect potential employees to businesses of a particular industry that matches their skillset and attributes. Suitability is attained when the attributes of an employee overlap with the operational needs of the business, known as the host employer. However, the nature of the relationship between employee and labour hire company, in the presence of the third party host employer, can pose legal concerns and implications for the parties involved. Recently this situation arose in a case before the...

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Don’t take it so seriously – the difference between misconduct and serious misconduct

A pool supplies business in Sydney summarily dismissed its general manager for going “behind their back”, making disparaging comments about the business and “betraying the business”. Entram Pty Ltd accused its general manager of preventing a sale of business and breaching his implied duties to act in good faith. Judge Shenagh Barnes of the Federal Circuit Court accepted the employee’s conduct amounted to misconduct; however, it was not found to warrant serious misconduct and, therefore, summary dismissal. As a consequence,...

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Redundant one day and offered alternate employment the next equals no redundancy pay

DRW Investments Pty Ltd v Richards [2016] FWC 461 is a decision in which a large transport company having lost a major hauling contract found work for affected drivers with the new contractor. The affected drivers argued that they had been made redundant by their old employer entitling them to redundancy payments but the old employer disagreed. Commissioner Sams found that the drivers had resigned from their old employer to take up work with the new employer. As a result their employment had not been terminated at the initiative of the old...

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Swearing in the workplace

A recent decision of Horner v Kailis Bros Pty Ltd [2016] FWC 145 concerns a dismissal of an employee for swearing. In this case the employer got it right and was able to successfully oppose an application for compensation and/or reinstatement for unfair dismissal by the foul mouthed employee. The employee had been disciplined previously for swearing. The Commission found there was a valid reason for his dismissal because the employee did more than swear but also abused his supervisor. The employer wisely asked the employee for his version...

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Dismissal during notice period deemed unfair

Brunner v Amalgamated Marketing Pty Ltd [2015] FWC 7837 was a case where a sales executive resigned on a Friday giving three week’s notice and on the following Monday, when she was absent on sick leave, the employer asked her to return the office keys, mobile phone and her uniform, which she did. He then paid the employee a week’s notice because he formed the view the employee having resigned did not intend to return to work. Senior Deputy President Richards found that the effect of the request was to deprive the employee of her tools of...

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Workers are Employees not Contractors

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd and others [2015] HCA 45 demonstrates that on arrangement where an enterprise engaged the services of cleaners through a labour hire company and represented to the cleaners that they were contractors not employees, is contrary to section 357 of the Fair Work Act 2009 as sham contracting. Previously, sham contracting was thought to apply only to misrepresentations the employer made to the worker and not to extend to misrepresentations by a third party, which uses the workers’ services,...

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Can an employer change an employee's work roster?

Being penalised for unpredictability is not necessarily adverse action. CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76 demonstrates that it is not unlawful for an employer to change an employee’s work roster where there is unpredictability in the employee maintaining the original roster even where that unpredictability arises from the employee taking carer’s or annual leave...

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THE FAIR WORK COMMISSION AND WORK PLACE BULLYING

  It is now just over two years since the Fair Work Commission was granted the ability to make stop bullying orders under the Fair Work Act 2009. Fair Work Commission statistics for 2014 – 2015 show that the Commission: received over 150,000 unique website hits regarding anti-bullying; dealt with over 6,300 telephone enquiries; processed 694 applications; and finalised 60 applications by a formal decision. In Bowker v DP World Melbourne Limited [2015] FWC 7312, Deputy President Gostencnik made extensive orders to facilitate the...

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