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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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 which Mr Newby attended or complied with over a two month period.

As a date for participation or compliance approached, Mr Newbey, who had obtained another job in the meantime, routinely emailed the commission that he was unavailable requesting another time.

Matters came to a head when he had not lodged documents by 27 September 2016 in compliance with directions earlier given. When the commission could not reach Mr Newbey and there was no explanation from him, it dismissed his application under section 399A of the Fair Work Act.

The lesson for dismissed workers is that they must be prepared to see their applications through.

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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 Lambos was suspended on full pay whilst the employer investigated what it regarded as serious misconduct constituted by:

1. Mr Lambos allegedly saying “If ACTION touch me this will be another Columbine”;
2. Inappropriate behaviour to colleagues in breach of the respect equity and diversity framework constituted by accusing management of being corrupt.

After the investigation was held, which took some months, Mr Lambos was terminated from employment for serious misconduct.

Commissioner Kovacic found the serious misconduct established and that the consequent dismissal was not a harsh, unjust or unreasonable response: Lambos v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 3835.

All Mr Lambos wanted was a driver’s seat that did not “bottom out” causing jarring injuries but the way he went about trying to get something that was perfectly reasonable led to him not only not having a proper seat but also not having a proper job.

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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 of the existence of the unfair dismissal jurisdiction within the Fair Work Commission and it was not until discussing the matter with a family matter that he learned he could make such an application. As we all know, ignorance of the law is no excuse and in Langtry and Mitolo Group Pty Ltd, the application was not allowed to be filed out of time.


The 21 day lodgement period is calculated on calendar days, rather than business days, so if you feel you have been unfairly terminated, act quickly!


Contact the Workplace Relations team at Nevett Ford on (03) 9614 7111 to ensure you are fully aware of your rights and entitlements. 

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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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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 will order reinstatement.

Ms Singh was a station assistant who was dismissed for the alleged theft of lost property.

The Commission found Metro’s investigation flawed and that short of stealing the lost property Ms Singh had dealt with it in breach Metro’s lost property policy.

Ms Singh had an impeccable work record over 10 years of service and maintained her right to be reinstated as the proper remedy for her dismissal.

Although she had applied for other jobs after she was dismissed she had not been successful in obtaining any.

What influenced the Commission in ordering reinstatement were two factors:

1. Distrust of an employee by the employer cannot of itself be a sufficient reason to decline reinstatement, otherwise no employee would ever be reinstated where the employer believed or suspected the employee had engaged in misconduct.
   
2. Metro was a large employer and there were many roles within it that Ms Singh could perform at different locations so that the element of trust and confidence was of diminished importance.

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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.

Whilst Commissioner Cambridge agreed that Mr Waters had breached the trust and confidence inherent in the employment relationship to a degree to warrant dismissal he was not satisfied that Mr Waters had set out deliberately to do so in the incident giving rise to his dismissal.

As his employment contract provided for four weeks notice, Mr Waters was awarded compensation for that period.

The case also suggests that the way in which a support person acts at a meeting can affect a finding on the degree to which the employment relationship has broken down and cannot be retrieved.

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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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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, he was summarily dismissed, which meant he did not have to work out the remainder of his notice.


The Commission found that a business can only dismiss an employee once. As the employee had already been dismissed, the employer could not justify summary dismissal based on the actions of the employee after termination.


Despite the fact that the actions of the employee after termination contravened the Privacy Act, the business failed to dismiss the employee in accordance with the Fair Work Act 2009 (Cth).


Although the Commission took into consideration the employee's conduct after termination in  its decision, it determined that the employee was owed financial compensation for his unfair dismissal.


To protect your business and insure yourself against avoidable unfair dismissal claims, speak to one of Nevett Ford’s workplace relations team members on (03) 9614 7111 about the right way to terminate an employee for misconduct and serious misconduct.

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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 Fair Work Commission. Labour hire company Adecco Industries found itself liable for the unfair dismissal of an employee who was dismissed by Nestle, the host employer. It is not in dispute that this employee was treated unfairly; she was not offered the rights that the Fair Work Act (1999) affords an employee faced with the prospect of termination.

Despite Adecco’s assertion that the employee remained contracted by Adecco and was merely removed from Nestle, the Fair Work Commission determined that the labour hire relationship cannot be use to abrogate the responsibility to ensure fair treatment of employees.

It was deemed that if the dismissal of an employee would be considered unfair if executed by the Labour Hire company directly, then such a dismissal does not cease to be unfair if executed by a third party to the employment relationship. If such a determination were not reached, it would be effectively permissible for labour hire companies to contract out of the legislative provisions regarding unfair dismissals.

Despite the involvement of host company Nestle, the Fair Work Commission requires that Adecco remedy the employee for the unfair dismissal.

Whilst the employee ultimately enjoys compensation candy, it seems that Adecco must endure the cane. 

To discover the best way to insure and protect your business against such penalties when terminating an employee, speak to one of Nevett Ford’s workplace relations team members on (03) 9614 7111.

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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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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 trade preventing her from working the notice period. He awarded the employee compensation for the balance of the notice period being two weeks because there was no valid reason for dismissing the employee and preventing her from working the notice period.

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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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Ready, aim...don't fire!

A small business owner has been fined almost $30,000 for unfairly dismissing an employee.

 

Acupuncture Australia Pty Ltd summarily dismissed a sales assistant for allegedly stealing from the business. The employee had worked for the company for three years when the managing director began to suspect her of theft. The sales assistant was sacked on the spot and reported to the police, despite a lack of proof of any crime.

 

The managing director was unable to provide any evidence to the Fair Work Commission of theft or fraud against the business and the police were not proceeding with the matter further.

 

The Fair Work Commission found the dismissal was “appalling” and “inexcusable” and ordered the company pay its former employee $29,000 as compensation.

 

If you suspect an employee is committing an offence or act of misconduct, it is important to investigate the matter properly and in accordance with the Fair Work Act 2009 (Cth).  

 

Even if you are a small business employer, you must ensure all employees are treated fairly and in line with the Small Business Code.

 

An experienced workplace relations lawyer will be able to explain the step by step process needed to investigate any allegations of misconduct. Act properly and avoid being penalised for protecting your business.   

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Employers on notice about age discrimination

In a landmark court ruling in April 2014, relating to age discrimination in the workplace the Federal Circuit Court in Brisbane imposed penalties on a restaurant and its directors for terminating the employment of a worker on his sixty fifth birthday: Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170.

The employee had worked for the restaurant since 1996 as a full time employee. Upon returning from long service leave in 2011, he was told he would be placed on part-time employment.  In the lead up to his sixty fifth birthday on 5 September 2011 the employer wrote to the worker stating that his employment would cease at that age and that it did not employ people who had reached 65 years.

The statements were clear breaches of section 351 of the Fair Work Act, which prohibits employers taking adverse action against employees because of, amongst other things, their age.

The decision acts as a warning to employers and a signal to employees that the laws to protect them at work will be enforced.

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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Coca-Cola Amatil loses out on an unfair dismissal case

Phil Brewin, Accredited Specialist - Employment Law, provided insight for HC Online regarding Coca-Cola Amatil (CCA) and an unfair dismissal case.

For further queries about unfair dismissal, Fair Work Act or workplace relations, please contact our employment and workplace relations specialists.

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Employees: be clear on what you’re applying for

When employees are dismissed they are sometimes faced with a choice of which type of claim applies to their circumstances for seeking a remedy under the Fair Work Act.

Have they been dismissed unfairly so as to be able to apply under Part 3-2 of the Act?

Have they been dismissed in contravention of their general protections so as to be able to apply under Part 3-1?

The choice is important. While section 586 of the Act allows corrections or amendments to be made to applications, the Full Bench of the Fair Work Commission has decided that the power to amend does not extend to converting a general protections application  into an unfair dismissal application: Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660.

An unfair dismissal application and a general protections application are meant for different circumstances even though they each may address that an employee has been dismissed. They are not interchangeable.

Once employees commence one type of application they cannot change midstream. They have to discontinue one application and then start the other if, after reflection or advice, they realise they have used the wrong application in the first place.

As 21 day time limits apply to both unfair dismissal applications and general protection applications (where a dismissal has occurred) the consequences for employees not getting it right at the start can be far reaching.

The lesson for employees is to be clear on what they are applying for.  If they are not clear they should seek advice so that they choose the application that suits the circumstances of their dismissal.

For further questions about employment or workplace relations, please contact our specialist employment and workplace relations law team.

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FAIR WORK COMMISSION’S EOFY CHANGES

Employers and employees – take note of the changes to the Fair Work Commission’s application fees, high income threshold and compensation awards that came into effect on 1 July 2014:

Fair Work Commission application fee

The Commission’s application fee to file an unfair dismissal application, general protections application and anti-bullying application has increased to $67.20 (see regulation 3.02 of the Fair Work Regulations 2009).

There has been no change to the time limit on making applications involving a dismissal, which is 21 days from the dismissal taking effect. 

High income threshold

To bring an unfair dismissal claim, employees must have been employed for over 6 months (or 12 for those employed by Small Business Employers) and either earn under the high income threshold, or have their employment covered by a Modern Award or an Enterprise Agreement (see section 382 of the Fair Work Act 2009). 

The high income threshold is now $133,000 (see regulation 2.13 of the Fair Work Regulations 2009).

The high income threshold includes wages, salary sacrifice amounts and non-monetary benefits.  

It does not include reimbursements, employer superannuation contributions, or payments that cannot be calculated in advance, for example bonuses that are reliant on an employee’s performance.

Compensation limits

For unfair dismissal applications relating to dismissals occurring on or after 1 July 2014, the Commission can award an employee a maximum of 26 weeks pay for compensation for their lost earnings.  This amount cannot exceed $66,500, which is half of the high income threshold (see section 392 of the Fair Work Act).

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