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Unfair dismissal serious misconduct workplace investigation – When considering dismissing an employee for serious misconduct, employers must bare in mind the following;

  1. Does the alleged behaviour that resulted dismissal reach the threshold of serious misconduct
  2. Have you conducted an investigation – do yo have the evidence to support the decision to terminate?
  3. Does the punishment fit the crime?

More details of another case there the issue of the punishment fitting the crime was considered by the FWC – http://awpti.com.au/punishment-must-fit-crime/

More details about summary dismissal can be found here – http://awpti.com.au/summary-dismissal-2/

Recently at the fair Work Commission, the depot manager at an Australian courier company was unfairly sacked after he was accused of being responsible for the breach of a worldwide embargo on the J.K. Rowling book Fantastic Beasts and Where to Find Them, the Fair Work Commission has found.

The FWC heard that XL Express Pty Ltd sacked the depot manager for serious misconduct last November when he was told that the delivery of embargoed J.K. Rowling books a day early had damaged the company’s reputation. XL Express blamed the Brisbane depot manager for the embargo breach, a claim he denied.

Describing the delivery of embargoed freight as “the pinnacle of its operations”, the company said a November 17, 2016 embargo on the J.K. Rowling novel was breached on November 16.

Under cross-examination, the company agreed it had not lost its contract with the book distributor and had not been financially penalised for the embargo breach. It claimed a forklift driver removed the embargo consignment from the embargo area and that another staff member removed the consignment note from an embargo file. The depot manager was accused of failing to ensure staff followed set procedures for embargo releases.

The depot manager told the FWC that the error with the sorting and handling of the consignment note happened on November 15 when he was on leave.  He said he was unaware that someone had “accessed his office, gained access to the box where the embargo labels were kept and also retrieved the con-note from the embargo con-notes and had labelled the freight”.

He said no fewer than six people had taken these actions on the day he was absent from the depot.

The commission heard that the depot manager claimed the error that resulted in the embargo breach on November 16 “was not through any fault on his part”.

The depot manager, who had been employed from May 2008 until late November last year, was dismissed on the grounds of serious misconduct after a meeting in which he was also accused of workplace bullying. He said it was the first time the allegations had been put to him. He was also accused of wrongly claiming he had received training in the company’s anti-bullying procedures.

Fair Work Commission deputy president Ingrid Asbury’s judgment said XL Express had no documents and called no evidence to support the bullying allegations.

The depot manager told the commission he was not paid his long service leave entitlements because his job was terminated for misconduct.

In finding the dismissal was unfair, Deputy President Asbury ordered XL Express to pay the sacked employee $48,432 in wages, less tax and $6555 in superannuation contributions.

The commission found that although it was not a valid reason for his dismissal, the depot manager’s responsibility for depot operations “meant that he had a role in the series of events that led to the embargo breach”.

It said the dismissal was harsh because it was disproportionate to the misconduct in relation to the embargo breach.

It is important to consider the decision in Rode v Burwood Mitsubishi where is was held a valid reason must be “defensible or justifiable on objective analysis of relevant facts”.

 

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/

 

 

 

Procedural Fairness – Workplace Investigation Procedural Fairness – Workplace Investigation – When conducting any misconduct workplace investigation, grievance investigation, performance management or any other disciplinary process it is vitally important that employers ensure that employees involved at afforded procedural fairness. Many unfair dismissal applications are successful at the Fair Work Commission due to the absence […]

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

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

Big IR fines proposed

Employers are being urged to ensure that they review their efforts to comply with industrial instruments and the National Employment Standards, in light of big IR fines proposed following the introduction of a Fair Work Amendment Bill to Parliament last week.

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 proposes increasing fines 10-fold – to more than $500k – for “deliberate and systematic” IR breaches, and it will also mean companies and franchisors will be held liable for breaches by subsidiaries and franchisees where they knew or ought to have known about contraventions and didn’t prevent them.

The Fair Work Ombudsman will have powers similar to those held by regulators such as ASIC and the ACCC in being able to compel individuals to attend interviews, and override privilege against self-exposure to penalties.

The proposed legislation is not targeted just at franchisors, all employers to ensure they’re covering their bases as most prosecutions generally involve multiple breaches, penalties often come to hundreds of thousands of dollars. This could now become millions where deliberate breaches are concerned.

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

Minimum employment period

In the unfair dismissal matter of Cole v Endless Solar Operations P/L the respondent, a small business employer, raised a jurisdictional objection regarding whether the applicant had completed the minimum employment period.

The applicant’s employment was terminated effective from 27 May 2016. The applicant had commenced performing IT work for the respondent as an independent contractor on 30 March 2015. The applicant submitted that he became a casual employee shortly thereafter; the respondent submitted that the applicant remained engaged as an independent contractor. The applicant was employed in the position of IT and Operations Manager effective from 13 July 2015, pursuant to the letter of offer of employment.

The Commission considered whether the work between March and July 2015 was performed by the applicant as a casual employee or as a contractor, and if it could be counted towards the minimum employment period. The Commission found evidence of an employment relationship, concluding that during the period between March and July 2015 the applicant was a casual employee, and that the work between March and July counted as service.

The Commission was satisfied that the applicant had completed the minimum employment period and was a person protected from unfair dismissal. The respondent’s jurisdictional objection was dismissed

Read decision [2016] FWC 6663 http://www.fwc.gov.au/decisionssigned/html/2016fwc6663.htm

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/

minimum employment period

 

 

Punishment must fit the crime

It is important for employers to remember when managing misconduct issues to ensure that the punishment fits the crime.

For example in the case of In Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2016] a matter involving the alleged misuse of internal communication a terminated employee was reinstated after it was found by the FWC that a reference to the Director of the Catholic Mission as “Mission Impossible” in internal emails was a misguided attempt at humour and not sufficiently serious to warrant termination.

The Fair Work Commission ordered the reinstatement after finding that “the punishment did not fit the crime”.

It is often the case that employers are unsure as to what course of action to take when dealing with misconduct, I advise the following;

  • Investigate the matter thoroughly ensuring that you gather and consider all the available evidence.
  • Ensure that you always afford the person subject of the complaint procedural fairness, the right to know what they are being accused of and the right that their response is heard and considered.
  • Take into account
    • o The nature and overall effect of the misconduct to the parties and to the organisation
    • o The employees history, length of time with the organisation and previous if any misconduct issues
  • Review options other than termination

Still not sure, contact AWPTI, we can take the stress out of dealing with misconduct issues for you.

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/

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.