Unfair Dismissals and Penalties

The vast majority of applications for unfair dismissals are discontinued.

Generally, this means that employers and employees have reached agreement so that a formal decision or order of the Fair Work Commission is not required.

Where negotiation does not result in resolution, any order for reinstatement or the payment of compensation made by the Commission can have further consequences for an employer if it is not obeyed.

If you are an employer and ordered to pay $2,200 as compensation for a dismissal found to be unfair, you would be required to pay it even if you needed time to do so and even if you disagreed with the decision.

You would not put yourself in a position where the Fair Work Ombudsman successfully applied to the Federal Circuit Court for $47,000 worth of penalties because your failure to pay $2,200 was a breach of section 405 of the Fair Work Act 2009 (Cth).

This has happened and is a cautionary reminder to employers.

 

 

 

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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 was justified.

In Beamish v Calvary Health Care Tasmania Ltd [2016] FWC 1816 the Commission found that a dismissal based on emails gossiping about or disparaging a manager was not justified although the emails showed a lack of judgment.

In both cases the Commission found that what Mr Sayers and Ms Beamish said were breaches of their respective employer’s policies or codes on how to behave towards others.

The language Mr Sayers was found to have used was threatening, racially motivated and littered with four letter words.

Mr Sayers knew what the correct procedure was for complaining about a colleague: racially abusing him was not the way to go.

Fifteen years of unblemished service with CUB and an otherwise good relationship with management did not help Mr Sayers.

The Commission, like CUB, showed no tolerance for racial abuse and the dismissal was upheld.

Ms Beamish had been sarcastic and disparaging in her comments about a manager. Some of what she said was funny – but at the manager’s expense.

Although not abusive or racially motivated what she said was still contrary to Calvary’s values distilled in its code of conduct as “hospitality, healing, stewardship and respect”.

Ms Beamish apologised at the first opportunity and recognised her behaviour as immature and inappropriate.

The Commission was prepared to reinstate her because it was satisfied she would be “welcome back by the overwhelming majority of employees”.

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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 did not tell him for nearly a month afterwards.

At the hearing of the application the employer argued that Mr Zeiter’s failure to maintain a driver licence was a frustration of the employment contract so that there was no dismissal, as opposed to a breach of the employment contract for which there could be a dismissal.

Commissioner Ryan thought the better analysis was that of breach of contract.

He found that the employer had not acted in a procedurally fair way towards Mr Zeiter but that the shortcomings were not sufficient to find that the dismissal had been harsh or unjust or unreasonable.

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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, including:

 

• The pressure he suffered at work while employed;
• The time consumed searching for alternate employment;
• Needing to care for his ill father;
• Spending time with his wife and children;
• The difficulty of meeting with and engaging a lawyer;
• The time taken calculating his claim and back pay entitlements; and
• The interruption of the Easter holidays.

None of these reasons were accepted, even collectively, as falling within the definition of 'exceptional circumstances' as required under the Fair Work Act 2009 (Cth).

 

As a result, the application was rejected by the Fair Work Commission and the applicant was denied the opportunity to have his matter heard and dealt with on its merits.

 

Don't make the same mistake - make sure you file your application within 21 days of your dismissal taking effect! Contact the Workplace Relations team at Nevett Ford on 9614 7111 to ensure your application is drafted and filed quickly, efficiently and always before the due date!

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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 notice

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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 of events as to what happened when the verbal altercation with his supervisor took place. He was told that his job could be under threat. Therefore the Commission was satisfied that the employee had an opportunity to respond and put his version of the events, and that he was aware of the reason why his job could be under threat.

The case is a good example of an employee’s conduct that justified dismissal.

Employers need to make sure they deal with conduct issues properly and employees are afforded procedural fairness, that is given the opportunity to put their version of events.

In dealing with conduct issues we recommend that all employers obtain advice from Human Resource Management specialists or a lawyer who is an Accredited Specialist in Workplace Relations before dismissing a worker for conduct issues.

Nevett Ford Lawyers provide advice on all aspects of Employment Law.

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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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Pitfalls of lack of process

Earlier this year, two cases heard in the Fair Work Commission demonstrated what can occur when proper process is not followed relating to termination of employment

 

In Lyberopoulos v Reidwell Investments BT Pty Ltd T/A Coco Cubano Blacktown [2015] FWC 4256, the employee was employed for less than seven months before she was summarily dismissed.  

 

The employer claimed she failed to comply with their procedures and did not follow directions. The parties contested the facts of the case and Senior Deputy President Drake had to determine whom to believe. She accepted the employee’s evidence over the employer’s because the employer did not seem to be a credible or reliable witness.

 

The Commission found that the employee was not appropriately warned that her actions may lead to the termination of her employment and the reasons for her dismissal were therefore harsh, unjust and unreasonable.

 

As the employee was unable to obtain alternative employment until 24 weeks and three days following the termination of her employment, Deputy Senior President Drake ordered that the employer pay compensation to the value of 24 weeks and three days’ worth of the employee’s salary, being $36,267.

 

In Balatti v Aussie Supplements Pty Ltd [2015] FWC 4674 the employee had been working as a sales manager for three years when he received a telephone call from his employer alleging he was being investigated for the sale of illegal drugs whilst at work. The employee was advised he would be dismissed from his employment and, several days later, received a letter confirming his immediate dismissal. The employer then failed to pay the employee’s accrued statutory entitlements upon termination, such as annual leave, and failed to participate in a conciliation conference and hearing before the Fair Work Commission. Commissioner Cambridge found the dismissal harsh, unjust and unreasonable because the employer advised the employee of his termination by telephone and the letter of dismissal did not provide any reasons for the dismissal. As a consequence, the employer was ordered to pay $17,880.

 

Under section 117 of the Fair Work Act 2009 an employer is obliged to provide notice of termination in writing.  But as the decision in Clark v Framlingham Aboriginal Trust [2012] FWA 7103 shows, the failure to provide written notice does not make a termination ineffective if the employee has been notified (by whatever means) that his employment has been terminated.

 

Melita Demirova

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When is a warning not a warning? When it’s a chat

 

When is a warning not a warning? When it’s a chat

 

 

A worker was awarded nearly $29,000.00 in compensation from his employer after the Fair Work Commission found his dismissal for serious misconduct to be harsh and unreasonable: Anderson v Thiess Pty Ltd [2014] FWC 6568.

 

Ronald Anderson, 65, worked for Thiess Pty Ltd in Queensland for over a decade until he was summarily dismissed in June 2013 for forwarding a highly offensive email about Muslim radicals to a group of co-workers using his work email.

 

Thiess based the dismissal on the fact that Mr Anderson had breached the company’s code of conduct and that Mr Anderson had been previously warned about inappropriate use of company email. Thiess also argued that it had many employees of the Muslim faith and that the company did business with Indonesia, a predominantly Muslim country and Mr Anderson’s conduct would damage the reputation of the company.

 

Mr Anderson argued that he was unaware that the email he sent would be grounds for dismissal and that if he had been aware he would not have sent the email. He also argued that other employees had sent offensive or inappropriate emails but had not been dismissed. He also claimed that he was unfamiliar with proper use of email.

 

Although the Commission found that there was a valid reason for the dismissal two actions by Thiess persuaded it that Mr Anderson was still entitled to a remedy. First, an informal chat that a manager had had with Mr Anderson about emails three months before his dismissal was found not to be a warning that put Mr Anderson on notice that a repeat would mean his employment was in jeopardy. (This chat was the warning on which Thiess sought to rely). Secondly, as part of Thiess’ investigation, his immediate manager, had rated Mr Anderson’s behaviour as warranting a warning but this had been overridden by senior management and no consideration was given to suspension.

 

The Commission was also swayed by the fact that Mr Anderson was 65 years old and would have trouble finding future employment. Mr Anderson asked to be reinstated but the Commission accepted Thiess argument that it did not want someone with Mr Anderson’s values as an employee, so compensation was ordered.

 

It is an interesting case because on the face of Mr Anderson’s actions a dismissal could rightly be justified. What let Thiess down and gave Mr Anderson a toe in the door were matters to do with process.

 

Greg Doran

Questions about this article or about employment and workplace matters, our specialist employment and workplace relations team provide advice in all matters related to employment law.

 

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What a difference a direction makes

Two recent cases demonstrate that how an employer deals with an employee whose behaviour and performance are issues can make a difference when it comes to defending a dismissal claim.

 
Employers must comply with occupational health and safety laws and as part of that obligation to ensure the safety and wellbeing of employees can lawfully direct that employees submit to independent medical examinations to assess their fitness for work.

Lynette Burns was a support worker with Sacred Heart Inc.  In a meeting with a supervisor in May 2013 Ms Burns, according to the supervisor, was “distressed, vulnerable and exhibited elevated levels of behaviour”.  As a result of this Sacred Heart directed Ms Burns to attend an IME so that her fitness for work could be assessed.  She refused to do so and this fact along with other matters was said to constitute misconduct, which resulted in Ms Burns being dismissed.  She applied for an unfair dismissal remedy. 

Anthony Grant was a solicitor at the Victorian Office of Public Prosecutions.  By early 2012 there were concerns about his performance, which had deteriorated over a period of time.  Mr Grant disclosed to his manager that he was dealing with long term depression.  Mr Grant was asked to provide a medical report to that effect but after advice from his union refused to do so.  The OPP did not direct Mr Grant to attend an IME in order to have his medical condition assessed.  He was dismissed for performance related misconduct.  He applied for a remedy that his dismissal was adverse action because of either his mental disability or temporary absences because of his illness.

Ms Burns’ case was heard in the Fair Work Commission and is reported in Burns v Sacred Heart Inc  [2014] FWC 3188; Mr Grant’s case was heard in the Federal Circuit Court and is reported in Grant v State of Victoria [2014] FCCA17.  Both Ms Burns and Mr Grant were the subject of unflattering comments but while the former failed in her application, the latter succeeded in his.

 What Ms Burns and Mr Grant had in common was an ongoing psychological presentation affecting their work performance, and employers, which were sympathetic to their respective positions but losing patience with them. 

 Deputy President Gostencnik found that the direction to Ms Burns to attend an IME was lawful and reasonable and upheld her dismissal. 

 Justice Burchardt said that it was impossible for the OPP to “disaggregate” Mr Grant’s illness from his misconduct and therefore ordered reinstatement, the payment of lost earnings and the imposition of a pecuniary penalty.

Had the OPP directed Mr Grant to attend an IME and he refused, it may have been able to argue that his failure to do so was itself misconduct that warranted dismissal.  Doing this may have negated Mr Grant’s argument that the real reason for his dismissal was a reason prohibited under the Fair Work Act. (An appeal is pending in Mr Grant’s case).

Whilst employers must allow for individual employees’ circumstances, ultimately, they must ensure workplaces are safe for all employees.

Therefore, an employee whose performance is adversely affecting the workplace, who refuses a direction to attend an IME to assess fitness for work may validly be dismissed from employment.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Valid reasons for dismissal

Just in case you were wondering what can be a valid reason for dismissal, recent decisions of the Fair Work Commission demonstrate:

Being rude to customers: Heggart v South Newcastle Rugby League Club [2013] FWC 4811.

Failing to comply with workplace hygiene standards: Uoifalelahi v Teys Australia Southern Pty Ltd [2013] FWC 9560.

Being persistently late for work: Riley v Go Electrical Pty Ltd [2014] FWC 1890.

Forcing entry into rental premises an employer provides to employees: Bradshaw v BHP Coal Pty Ltd [2014] FWC 2481.

Failing to attend meetings when directed to do so: Burns v Sacred Heart Mission Inc [2014] FWC 3188.

In each of these cases employees were dismissed because of these behaviours and the commission decided that dismissal was a justified response in dealing with them.

Greg Doran

Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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