FWC High income threshold increases – Changes to high income threshold and compensation caps and filing fees

Commencing today, (1 July 2017) the high income threshold in unfair dismissal cases increases to $142,000 and the compensation limit is now $71,000. The maximum compensation cap is set at 26 weeks or 50% of the high income threshold

The filing fee for dismissal, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009 will increase to $70.60

It is important to remember that an employee earning over the threshold of #142,000.00 can still make an unfair dismissal application if;

  1. They are covered by a modern award

    A modern award is a legal document that sets out minimum wages and conditions for an industry or occupation. Awards cover things like rates of pay, overtime, penalty rates and allowances. The conditions in awards apply on top of the minimum conditions in the National Employment Standards.
  2. If they are covered by an enterprise agreement
    An enterprise agreement is a legal document that sets out the conditions of employment between a group of employees and their employer.Enterprise agreements can be made by an employer with a group of employees, or by more than one employer with groups of employees.In some cases, enterprise agreements can be made by an employer and a union for a new enterprise before any employees start working for the business.

If you are not sure if your employees are covered by the unfair dismissal provisions of the Fair Work Act take the test at the Fair Work Commission web site – https://www.fwc.gov.au/content/rules-form/unfair-dismissal-application

Recent decisions about the high income threshold can be found in this article – http://awpti.com.au/fwc-high-income-threshold-decisions/

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

 

Unfair dismissal hearing participation – As an employer facing an unfair dismissal application it is important that you participate in the process, you can’t argue against a judgement if you are not presents at the hearing. The Commission will still proceed with the matter in the absence of the respondent.

Melim v Construction Staff NSW

TERMINATION OF EMPLOYMENT – performances.394 Fair Work Act 2009 – application for relief from unfair dismissal

The Applicant was employed as a permanent full-time concrete patcher. On 22 July at the request of his supervisor, the Applicant commenced leave due to a “shortage of work”. However, he received no further call.

After a number of calls, including to the CFMEU, he was offered work on a job at Mascot. This was done by a director of the employer. He commenced work on 24 August 2016. On 31 August, the Applicant stated that he had cleaned up some unset concrete, as instructed.

On 1 September, he was told by the foreman and subsequently the director, on the telephone, that he was no longer required. The Applicant says that he was given no proper explanation for his dismissal other than an email that attached a separation certificate which referred to “shortage of work”. The Applicant denies that his work on 31 August was in any way substandard.

The respondent submitted an F3 form stating applicant was terminated on 31 August 2016 because he refused to clean up unset concrete as instructed by his supervisor.

Subsequently the respondent did not participate in the hearing.

The Commission found no valid reason for dismissal, no notification of a valid reason or an opportunity to respond. The Commission found the termination was harsh and unjust and ordered compensation of $12,433.60.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2207.htm

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

 

 

FWC High Income Threshold Decisions – to satisfy the provisions of the Fair Work Act and to be able to claim relief via the Fair Work Commission an employee must earn under the High Income Threshold, currently set at $138,900.00 per annum.

FWC High Income Threshold Decisions
Scarborough v Sandfire Resources NL t/a Sandfire Resources NL

TERMINATION OF EMPLOYMENT – high income thresholdmodern award coveragess.382, 394 Fair Work Act 2009

This decision concerns an application made by Mr Nigel Scarborough for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment by Sandfire Resources NL T/A Sandfire Resources NL (Sandfire).

Mr Scarborough argues that his employment was covered by the  Manufacturing and Associated Industries and Occupations Award 2010 (manufacturing award) or the Mining Industry Award (mining award) and therefore he was protected from unfair dismissal under s.382(b)(i) of FW Act

Sandfire contended that Mr Scarborough was not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold and the applicant’s employment is not covered by a modern award or enterprise agreement

The Commission held that the respondent business did not operate in the manufacturing industry, but in the mining industry, and so the applicant was not covered by the manufacturing award – held that the applicant was a supervisor, but that supervisors are not covered by the mining award [Fry], [McMillan and Norman]

The commission held that applicant was therefore not a person protected from unfair dismissal, as he was above the high income threshold and was not covered by and enterprise agreement or award, the application was dismissed.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc947.htm

FWC High Income Threshold Decisions
St George v Gold Coast Turf Club Ltd t/a Gold Coast Turf Club

TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009

The decision arises from an application by Mr Dale St George for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 Mr St George was the Chief Executive Officer of the Gold Coast Turf Club Limited.

The Turf Club objected to Mr St George’s application on the basis that it alleged that Mr St George’s earnings were more than the high income threshold.

The Turf Club submitted that Mr St George is not covered by the Award on a number of bases:

  • The employment agreement entered into explicitly states that the position of CEO is considered to be Award free;
  • The Award does not cover employers in the Racing industry;
  • The Turf Club does not fall within the definition of “Club” in the Award; and
  • The classification definitions submitted do not apply to a manager at CEO level.

Mr St George submitted that he is covered by the Award because:

  • The Turf Club is a “Club” as defined in the Award;
  • The principal purpose of the position held by Mr St George falls within the classification definition of “club manager” in the Award and, more particularly, a ‘Level G manager’; and
  • The Award contemplates high income club managers by the inclusion of provisions exempting certain managers from Award entitlements where they earn more than 50% above the minimum.

The Commission found respondent (Turf Club) operates for benefit of members, however, it was not not persuaded that a club that promotes and holds racing events is conducted for the benefit of the community.

The Commission was not satisfied that the respondent is a ‘Club’ within definition of the Award and held that even if wrong in that conclusion, the respondent is not covered by operation of the exclusions in coverage of the Award.

The Commission not satisfied applicant was covered by modern award and therefore the applicant was a person protected from unfair dismissal, the application was dismissed.

Senior Deputy Commissioner Drake stated

“I am satisfied and find that the sum of Mr St George’s annual rate of earnings is not less than the high income threshold. It is agreed that no enterprise agreement applies to Mr St George. I am not satisfied that Mr St George is covered by a Modern Award. Therefore, I am satisfied that Mr St George is not a person who was protected from unfair dismissal at the time of his termination of employment. On this basis his application must be dismissed.”

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc451.htm

FWC High Income Threshold Decisions
Wigglesworth v Warringah Plastics P/L

TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 382, 394 Fair Work Act 2009

Mr Michael Wigglesworth (Applicant) applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicant was employed in the position of Business Development and Accounts Manager for the states of Victoria and South Australia with Warringah Plastics Pty Ltd (Respondent) commenced that position on 1 July 2015.

The Applicant was advised of the dismissal by letter on 8 July 2016. It was not in dispute that the Applicant’s employment was terminated by the Respondent on 8 July 2016 effective immediately.  Although the dismissal was effective immediately, the Termination Letter made it clear that the Applicant would receive one months’ pay in lieu of notice.

The Termination Letter provided that “our decision is based solely on a commercial basis in that the business you brought across from Kema Plastics is not sufficient to justify a full time Account Manager and with no significant new business generated since your commencement, we have no option other than to server our ties”.

The Respondent maintained that at the time of the his dismissal, Mr Wigglesworth’s employment was not covered by a modern award or enterprise agreement, and he earned more than the high income threshold and was therefore is unable to make an application for an unfair dismissal remedy. The Respondent also contended that Mr Wigglesworth was not covered by a modern award or that no enterprise agreement applied at the time of his dismissal, this matter was not in dispute.

The Commission satisfied that at the time of the applicant’s dismissal, his guaranteed salary was $120,000.00, he received a vehicle allowance of $15,000.00 and that other amounts sought to be included by respondent do not form part of the sum or amount contemplated by s.382(b)(iii) of Fair Work Act

The Commission found as a result that the total of $135,000.00 was less than the high income threshold and that the applicant is a person protected from unfair dismissal.

The respondent’s jurisdictional objection dismissed, the application was to proceed in the normal way.
Link to case- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc7555.htm

In the subsequent unfair dismissal hearing Commission found that Mr Wigglesworth’s dismissal was unfair inn that it was was both unjust and unreasonable to dismiss him without procedural fairness.  Reinstatement not sought compensation of $7,993.44 was awarded.
Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1266.htm

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

Email misuse dismissal fair

Email misuse dismissal fair – Email and misconduct – unfair dismissal case confirms the importance of trust and confidence

Where conduct is so poor that it destroys the trust and confidence essential in an employment relationship, the FWC will find that dismissal is not unfair.

The case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 serves as a warning about:

  • Sending an email to the wrong person.
  • Making disparaging or offensive comments in emails
  • Being careful when wording and sending emails.

Accidentally sending an email to the wrong person is not an uncommon event, especially if the recipient is the email is the target of comments best left unsaid or unfiltered thoughts.

Ms Sologinkin employee with a long and previously unblemished employment record did just that and it did not end well

Senior Deputy President Hamberger found against Ms Sologinkin’s unfair dismissal application. In considering the matter, the Commissioner affirmed the importance of trust and confidence in the employment relationship and that it can be destroyed by one act of sufficient gravity

The email

Ms Sologinkin worked for Cosmetic Suppliers since May 2000, as a junior sales representative then Team Leader and then State Sales Manager.  She had never been subject to any issues of misconduct.

On 9 November 2016, she sent an email described as “intemperate and inappropriate” to the Customer Services Team describing them as “totally incompetent”.

As set out in the judgment:

“On the same day, the applicant composed an email to a friend of hers who had commenced working as a contractor for the respondent.  In this email, she made a number of disparaging ‒ and, in at least one case, highly offensive ‒ comments about some of the clients her friend would be dealing with.  This included a reference to one of the clients’ ethnicity and national origin.  The email included the email addresses of the clients.”

As she had intended, the email was sent to her friend and colleague.  Unfortunately, it was also accidentally sent to the clients.  Once she became aware she had sent the email to the clients, she made attempts to retrieve it, her attempts failed.

Upon receiving the email, one of the named clients tried, without success, to contact the employee by telephone.  He then rang the sales director and subsequently sent an email about the matter which said there “needs to be a consequence to this stupidity, await your advice”. 

The following day the client stated that they would no longer deal with any company represented by Ms Sologinkin; adding to this, another disparaged client did the same.

The employer issued a letter to Ms Sologinkin requiring her to attend a disciplinary meeting on 14 November 2016.  The letter advised Ms Sologinkin that sending the email to the clients was highly inappropriate and a breach of the employer’s Code of Conduct and furthermore could amount to serious misconduct. That meeting did not occur as Ms Sologinkin was on work-related stress/sick leave and unfit for work until 18 November.

The employer requested a written response from Ms Sologinkin to the allegations in the letter by close of business 15 November 2016.  To this Ms Sologinkin responded with a detailed email that cited a number of matters, including that her reasons for the mistake include that she had not slept well before the day of the email. She further said she was distracted, having had two others emails open at the same time and was handling complaints about the customer service team’s inability to perform their duties.

She conceded she had found it difficult to cope with her role ‘for some time’ and had been receiving medical treatment for post-traumatic stress disorder since 2015.

In further background, the employee had been placed on an informal performance improvement plan due to failure to meet key performance indicators for sales, and poor time management, which she said was due to a lack of management support and organisational changes. By the end of 2015 her performance had improved and she was no longer on a plan.

The employer considered her explanation but decided to dismiss her, concluding that the seriousness of the conduct was such that the trust and confidence necessary in an employment relationship had been lost.

SDP Hamberger found in at least one case the employee made ‘highly offensive’ remarks. One remark included a reference to a client’s ethnicity and national origin. SDP Hamberger accepted that the email was sent by mistake but given she occupied a management position she must bear the ultimate responsibility for her actions. He found the company had a valid reason to terminate and had conducted a fair investigation into the matter

SDP Hamberger accepted that there was a valid reason for termination and that even though the employee had;

  • a lengthy period of service with the employer,
  • an unblemished employment record
  • was contrite,

Overall the gravity of this misconduct, coming from someone whose job was to “manage relations with key customers”, was such that dismissal was not harsh.

The Commissioner held:

“…whatever the explanation as to how it happened, the ultimate responsibility must be borne by the applicant.  The email not only had the potential to but clearly did in fact damage the respondent’s reputation and its relations with its clients.” 

Not all mistakes destroy trust and confidence

Termination of employment is never a step to be taken lightly by an employer.  A longstanding employee with an unblemished employment record will, in many circumstances, be able to successfully argue that a termination was harsh and that other disciplinary outcomes falling short of termination should have been actively considered and applied.

However, where conduct is so damaging to the business and the trust and confidence necessary in an employment relationship, the Commission will be more willing to find that dismissal was not unfair and an appropriate outcome.

Every unfair dismissal case turns on its facts; it is entirely possible that if the employee was not in a key sales role, where relationships with clients are pivotal, that the outcome may have been different.

It is also an important and timely reminder to be careful and double-check the recipients list of any email that is sent.  And the tone of the email – if in doubt don’t press send

Link to the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1838.htm

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

Anti-bullying laws disciplinary process

Anti-bullying laws disciplinary process – Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.

Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case demonstrated an inventive way in which the FWC’s anti-bullying jurisdiction can be used by employees facing disciplinary proceedings. It may have opened a can of worms for employers.

In Lynette Bayly [2017] FWC 1886, the FWC issued an interim order preventing her employer from taking any further actions to finalise an investigation into the conduct of an employee or to impose any disciplinary sanction on the employee arising from the investigation or to terminate the employment of the employee.

Ms Bayly had made a section 789FF “stop bullying” application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Despite the application, the employer continued the investigation and, as part of that process, advised her that draft findings had been made. Ms Bayly was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Ms Bayly’s lawyers wrote to the employer indicating she was unfit for work for a period that extended beyond the date of the proposed meeting.  They sought agreement from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in relation of the allegations under investigation.  The employer declined, confirming its intention to proceed with the disciplinary process.

As a result Ms Bayly sought an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

“The FWC may make an interim decision in relation to a matter before it.”

Can the interim order be made under these circumstances?

The employer opposed the interim order:

  • Ms Bayly had not provided a substantive response to the investigation;
  • the investigation was being conducted in a “reasonable manner”;
  • any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
  • the draft findings of the investigation are adverse to Ms Bayly; and
  • if Ms Bayly were to be dismissed, she has other remedies available to her.

The employer claimed that the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,

 “That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified.  The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where “the balance of convenience” lies. He then observed:

It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

  • claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
  • the fact preliminary adverse findings had been reached against Ms Bayly;
  • Ms Bayly’s medical condition;
  • concerns expressed about the employer’s process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.

Commissioner Hampton was satisfied

“… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  The allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.” 

Interestingly, a key aspect of the anti-bullying jurisdiction ‒ that no orders can be made once the employment relationship is at an end (except in very limited circumstances) ‒ was identified as,

“…a significant factor directly relevant to the balance of convenience and the exercise of any discretion”.

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is an interesting and concerning development, one that should be watched carefully by employers. It may well be a warning of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer’s disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the court if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

“given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly.  The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution.  Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences.  In this case, there are some particular circumstances that have justified the making of the interim order.”

Notwithstanding Commissioner Hampton’s words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should;

  • ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is “reasonable management action carried out in a reasonable manner”);
  • Consider out-sourcing bullying investigations to suitably qualified and experienced investigators.
  • Be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).

Australian Workplace Training and Investigation can assist with professional and timely investigations of workplace issues such a bullying, harassment, sexual harassment, discrimination and other areas of misconduct such as Code of Conduct breaches, IT and email misuse, theft and fraud, please contact us if you require assistance on 02 9674 4279 or enquiries@awpti.com.au

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations

Anti-bullying laws disciplinary process

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

Anti-bullying laws disciplinary process

Unfair dismissal flawed investigation

Unfair dismissal flawed investigation – Workplace investigations may be necessary part of business but are often complex and difficult to conduct, especially for the untrained and inexperienced.

A question that is generally raised after a complaint has been lodged is whether to conduct the investigation internally or to obtain external investigation assistance.

Before relying on the findings of an investigation especially when terminating an employee, employers must consider whether the investigation itself and its findings are sound and can be supported by the facts.

In the case of Jennifer Walker v Salvation Army (NSW) [2017] FWC 32 the internal investigation was found flawed due to reliance on false assumptions.

Link to case: http://www.austlii.edu.au/au/cases/cth/FWC/2017/32.html

In this unfair dismissal case at the Fair Work Commission, the applicant Ms Walker was the manager of the Salvation Army’s store in Lidcombe, Sydney. She had been an employee of the Salvation Army for 11 years and during that time had an unblemished employee record.

In July 2016, Ms Walker served a customer who wished to purchase items of furniture. Ms Walker did not enter a sale and provided the customer with a handwritten document indicating she had set aside certain items.

The customer arrived later in the week to pick up the furniture. The customer claimed he had paid $200 in full for the furniture, however, there was no record of sale. The Salvation Army subsequently investigated the issue. The investigation consisted of a review of the CCTV footage and discussions with Ms Walker and the customer.

The Salvation Army believed the customer’s account and that the CCTV showed Ms Walker had received $200 cash from a customer as payment for furniture he was purchasing.

The CCTV footage showed that while dealing with the customer, Ms Walker had at least $50 in her hand. Ms Walker denied receiving any money from the customer. The Salvation Army terminated her employment for serious misconduct (theft).

In considering the case, Senior Deputy President Hamberger noted that the more serious the alleged conduct the higher the standard of reasonable satisfaction is needed to be applied when determining whether the conduct occurred.

SDP Hamberger found that the evidence demonstrated that Ms Walker was holding a $50 note in her hand, but it did not establish that she had received that money from the customer. SDP Hamberger concluded the customer had not paid Ms Walker for the furniture and as a result held that Ms Walker had not engaged in serious misconduct and that her termination was unfair

SDP Hamberger was surprised at the lack of rigour in the internal investigation and that the Salvation Army so readily accepted the customer’s claims that he had paid ahead of the account of Ms Walker.

In finding that the dismissal was unfair, SDP Hamberger considered the criteria in section 392 of the Fair Work Act 2009 and awarded the Store Manager the maximum available compensation of twenty six weeks’ pay equating to $22,404.50.

Lessons for employers

When conducting a workplace disciplinary investigation, employers should undertake the following:

  • Ensure that the employee is afforded procedural fairness especially the right to be heard
  • Ensure that the employee is provided with an opportunity to respond to the allegations. This involves providing the employee with sufficient details of the alleged conduct in writing.
  • In the case of CCTV evidence, it is recommended that employers, ensure that the employee are permitted to view the footage prior to providing a response.
  • Genuinely consider different or alternative explanations for the alleged conduct, and ensure all available evidence is gathers from witnesses and duly considered.
  • Consider any mitigating circumstances prior to making a determination in regard to disciplinary action such the length of service or employment record and past behaviour of the employee.
  • Ensure impartiality and avoid making assumptions of guilt prior to the completion of a fair and thorough investigation;
  • Provide the employee with the opportunity to have a support person present, including providing the employee with sufficient opportunity to find an appropriate support person; and
  • When in doubt, consider other opinions before terminating.

This decision in this case demonstrates the disadvantages of undertaking an internal investigation which was not thorough and made assumptions (that is, the customer’s account was truthful), rather than taking a more open minded approach to all asserted facts.

If in doubt call an expert, getting a workplace investigation wrong can be costly both in terms of money and reputation.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

Social media case

Social media case – Recently at the Fair Work Commission in the case of Renton v Bendigo Health Care Group [2016] FWC 9089, it was highlighted that employers need to consider the appropriateness of penalties and having policies in place when considering a decision to terminate employees for misconduct and is a reminder about the use and abuse of social media in the workplace

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc9089.htm

In the Renton case, an employee of Bendigo Health Care Group was found to have been unfairly dismissed despite ‘tagging’ two of his colleagues in an offensive and sexually explicit video post on Facebook and on the same day had also left blobs of sorbolene cream and tissues on the desk of a colleague tagged in the video.

That colleague complained about the two incidents and the employer dismissed the employee for serious misconduct.

Commissioner Bissett found that the employee had:

  • negatively affected the health and safety of colleagues
  • engaged in conduct that had the potential to damage the employer’s reputation
  • exposed his colleagues to humiliation and ridicule at work.

The Commissioner stated,

“Whilst Mr Renton is apologetic, he has displayed a lack of insight into the effect of his post on his colleagues – even at the hearing of his application he failed to appreciate that it caused real offence. To this extent, I am not sure the basis of his apologies. He compounded his Facebook misdeed by placing blobs of sorbolene cream on Mr Christie’s desk. That act was boorish.

Having said this, however, I consider, on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct.”

Mr Renton has no history of misconduct at work. Whilst it is apparent he and Mr Christie have exchanged ‘jokes’ in the past, not dissimilar to the sorbolene incident, this has gone unremarked by either of them, their colleagues or management (if it was aware of these ‘jokes’). Further, the Facebook posting and its naming of work colleagues and ‘work’ is a one-off incident. Mr Renton had not drawn such connections in the past. Whilst Mr Renton’s insight into the incident may be questioned it can only be hoped he has learnt from his conduct. Further, there was no suggestion that the incident had any adverse effect on any other aspect of Mr Renton’s work.

Commissioner Bissett held that the behaviour was a one-off nature and that there had been a lack of previous misconduct. Having found the dismissal of the employee to be harsh and as a result Mr Renton was unfairly dismissed.

Commissioner Bissett considered that the incident was an isolated one and his employment history was otherwise spotless.

Getting termination right.

This decision suggests that employers must consider a number of issues when deciding to terminate an employee such as:

  1. The nature of the incident
  2. Past behaviours and employment history, including length of service
  3. If policies are in place and did the behaviour breach the policy
  4. Are options other than termination more appropriate.
  5. Does the punishment fit the crime, as matter also addressed in Dawson v Qantas Airways Limited (2016) FWC 8249 – http://awpti.com.au/fwc-unfair-dismissal/

It is recommended that employers have in place

  1. A clearly written social media policy
  2. Training that clearly outlines the contents of the policy so that employees understand the behavioural expectations of the employer
  3. Investigate matters of this nature thoroughly and impartially before making final decisions.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator

FWC Unfair dismissal

The importance of considering other factors when terminating employees

FWC unfair dismissal – A Qantas flight attendant who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission after it found that the decision to terminate his employment was harsh.

Link to case – Dawson v Qantas Airways Limited (2016) FWC 8249 https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8249.htm

At the FWC Deputy Commissioner Lawrence concluded that the Applicant Mr Dawson was dismissed because he stole property belonging to Qantas and initially lied about how the alcohol came into his possession, he changed his explanation during an investigation into the matter.

While the amount of alcohol stolen by the Applicant was of small value, Qantas stated that they have a zero tolerance policy to theft including accidental theft. For these reasons, the FWC found that the conduct of the Applicant was a valid reason for termination.

When reviewing the procedural aspects of the termination, the DC Lawrence found that Qantas carried out proper investigation and disciplinary processes. However he also had an obligation to consider “any other matters” to reach a finding as to whether the termination was ultimately harsh, unjust or unreasonable.

As a general rule, the aim of considering what the FWC considers to be “any other matters” it must ensure that a “fair go all round” has been given to all parties.

In this case, the Deputy Commissioner Lawrence considered the factors argued by the Applicant should lead to a finding that his termination by Qantas was disproportionate to the crime committed including;

  • the Applicant’s had worked for Qantas for 28 years with an unblemished record of service as a long-haul flight attendant;
  • the value of the items stolen was small.
  • the age of the Applicant, at 50 it was considered that it would difficult for Mr Dawson to obtain future employment especially as a flight attendant;
  • While the Applicant initially gave an incorrect explanation of his actions, he did correct it later.
  • the Applicant argued that he had a number of medical and family issues prior to the incident.

Notwithstanding that the procedural aspects of the termination were fair and compliant with the Fair Work Act 2009, after taking these “other matters” into account, the Deputy Commissioner Lawrence concluded that the dismissal was harsh.

As a result of Qantas’ failure to properly consider the Applicant’s circumstances and the impact that the termination would have on the Applicant, the FWC felt it appropriate to award the Applicant compensation.

The FWC noted that the Applicant could have earned $1,011,930 for the remainder of his working life. Acknowledging the valid reason for termination and proper procedures, the FWC reduced the amount of compensation to $500,000.

The Applicant’s compensation was reduced again by the FWC to 26 weeks’ pay in accordance with the maximum compensation cap in the unfair dismissal jurisdiction under the FW Act.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

 

The National Employment Standards

The National Employment Standards (NES) are 10 minimum employment entitlements that are set out in the Fair Work Act 2009. The NES have to be provided to all employees. The national minimum wage and the NES make up the minimum entitlements for employees in Australia. An award, employment contract, or registered agreement can’t provide for conditions that are less than the national minimum wage or the NES.

Link to Fair Work Commission NES information

What are the 10 National Employment Standards (NES) entitlements?

The 10 minimum entitlements of the National Employment Standards (NES) are summarised below:

  • Maximum weekly hours of work –38 hours per week, plus reasonable additional hours.
  • Requests for flexible working arrangements – an entitlement for certain employees to request flexible working arrangements
  • Parental leave and related entitlements – up to 12 months unpaid leave per employee, plus a right to request an additional 12 months unpaid leave, plus other forms of parental and adoption‑related leave.
  • Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers.
  • Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
  • Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
  • Long service leave – a transitional entitlement for employees that comes from an applicable pre‑modernised award, pending the development of a uniform national long service leave standard.
  • Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
  • Notice of termination and redundancy pay – up to five weeks notice of termination and up to 16 weeks severance pay on redundancy, both based on length of service.
  • Fair Work Information Statement – must be provided by employers to all new employees, and contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, union rights of entry, transfer of business, and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.

Who is covered by the NES?

All employees in the national workplace relations system are covered by the NES regardless of the award, registered agreement or employment contract that applies (however only certain entitlements apply to casual employees).

Casual employees only get certain NES entitlements which are:

  • two days unpaid carer’s leave and two days unpaid compassionate leave per occasion
  • maximum weekly hours
  • community service leave (except paid jury service)
  • to reasonably seek a day off on a public holiday
  • the Fair Work Information Statement.

In some states and territories long serving casuals are eligible for long service leave.

In addition, where there is an expectation of ongoing work for a casual and the casual has been employed regularly and systematically for at least 12 months, they have extra entitlements from the NES. These are:

  • the right to request flexible working arrangements
  • access to parental leave.

There are two NES entitlements that apply to all full-time and part-time employees, whether they are covered by the national workplace relations system or not. These are:

  • parental leave and related entitlements
  • notice of termination.

How do the NES cover employees?

The national minimum wage and the NES make up the minimum entitlements for employees in Australia.

An award, employment contract, or registered agreement can’t exclude or provide for conditions that are less than NES, and those that do have no effect.

Awards and registered agreements can detail how the NES work.

For example, they may set out details about:

  • averaging an employee’s ordinary hours of work
  • cashing out and taking annual leave
  • taking annual leave in advance
  • taking excessive annual leave
  • cashing out personal/carer’s leave
  • taking time off instead of payment for overtime
  • substituting public holidays
  • when redundancy pay entitlements do not apply.

Awards and registered agreements can also supplement the NES by providing entitlements that are more favourable for employees.

In addition, employers and award and agreement-free employees (meaning they are not covered by an award or agreement) may also make agreements that affect certain ways the NES works.

Employers and award and agreement-free employees can make agreements about:

  • averaging hours of work
  • cashing out or taking annual leave
  • substituting public holidays
  • getting extra annual leave in exchange for foregoing an equivalent amount of pay
  • getting extra personal/carer’s leave in exchange for foregoing an equivalent amount of pay.

Employment contracts can only provide entitlements that are similar or more favourable to the employee.

An employer must not contravene a provision of the NES. A contravention of a provision of the NES may result in penalties of up to $10,800 for an individual and $54,000 for a corporation.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/investigations/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations – misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential investigations.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigation

social media unfair dismissal