The Fair Work Commission (FWC) has made its first ruling under the new Same Job, Same Pay framework, after finding that the labour hire workers employed by a Queensland coal mine performed essentially the same work under the same conditions as the mine’s permanent employees.

As a result, more than 300 labour hire workers servicing the mine are set to receive pay increases of up to $20,000 per year as of November this year, when Same Job, Same Pay orders will come into effect.

Particularly for organisations in heavily unionised sectors, this decision serves as a reminder to evaluate employment practices to ensure compliance with the new legislation.

Labour hire workers perform the same work, argues union

The employer in this case, a Queensland-based open-cut coal mine, currently employs approximately 350 permanent employees who are covered by an enterprise agreement, and supplements its workforce with approximately 320 labour hire workers. 

Earlier this year, the Mining and Energy Union (MEU) put forward an application under the Same Job, Same Pay framework arguing that the labour hire workers’ roles were indistinguishable from those of the permanent employees, and they were thus entitled to the pay rates set out in the host employer’s enterprise agreement.

In its ruling, the FWC noted that the labour hire workers and permanent employees attended the same pre-start meetings each day, performed the same production work using the same equipment, wore the same uniforms and followed the same procedure for requesting annual and personal leave, among other similarities.

“If they’re being treated the same as employees on the site in terms of the nature of the work itself and the operational aspects, that’s where it becomes very compelling,” says Aaron Goonrey, Partner at Pinsent Masons.

The FWC was ultimately satisfied that the labour hire employees were entitled to the same rate of pay as their permanent counterparts.

Significantly, neither the labour hire company nor the host employer opposed the application, acknowledging these similarities and accepting the order to bring the labour hire workers’ pay rates in line with the host employer’s enterprise agreement.

“The decision is not contentious in the facts – these people did the same role,” says Goonrey.

“But there will likely be some upcoming applications which will be more complicated because they will be defended by labour hire companies or by the host company.”

The MEU has expressed its intent to assess the circumstances for labour hire workers at each work site and make further applications under the Same Job, Same Pay framework.

“This decision is going to be part of the case law that helps guide employers who use labour hire companies in terms of how they can avoid an order like this being made,” he says.

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Understanding the Same Job, Same Pay framework

The Same Job, Same Pay legislation was passed by the Albanese government in December last year as part of the Closing Loopholes Bill. The laws are designed to prevent employers from using labour hire to undercut the wages and/or conditions afforded to permanent employees via their enterprise agreements.

The legislation applies to businesses which have 15 or more employees, are covered by an enterprise agreement, and whose workforce is supplemented with labour hire workers. Sectors like construction, manufacturing, transport and healthcare in particular are likely to be impacted.

Under the new laws, the FWC can order labour hire companies to pay workers the same amount that would be paid to them under the host employer’s enterprise agreement, if they have been working for the host employer for more than three months and perform the same work as permanent employees.  

While Same Job, Same Pay orders will not kick in until November this year, applications can still be submitted beforehand, as occurred in this case. Any pay increases ordered by the FWC will become effective in November.

Anti-avoidance provisions have also been put in place to prohibit schemes that prevent the FWC from making a Same Job, Same Pay order or avoid the application of an order. 

A possible example would be trying to engage labour hire workers as contractors to deprive them of the new protections, or intentionally turning over the workers to stay under the three-month placement period. Deliberate attempts like this to skirt the new laws or game the system could attract significant civil penalties. 

“If they’re being treated the same as employees on the site in terms of the nature of the work itself and the operational aspects, that’s where it becomes very compelling.” – Aaron Goonrey, Partner at Pinset Masons

Is this the end of labour hire? 

This ruling signals the first of many decisions with significant financial impact on employers who use labour hire, particularly in heavily unionised industries like mining. Goonrey says this may prompt some employers to reevaluate their use of labour hire and its benefits.

“A lot of companies that use labour hire may be resigned to the fact that they will now have to pay a premium for that labour hire. Or, they’ll go to market and employ employees directly, which is part of the reason [why this policy was introduced] – to try and give more permanency.”

With that said, he disagrees with the notion that this policy will signal a “death knell” for labour hire. 

“There will still be a place for labour hire. I think a lot of companies will simply say, ‘We’re willing to pay the premium just for that flexibility.’ And there are a number of companies that are already paying their labour hire providers the same as what they’re paying their employees.”

For employers who engage labour hire workers and have an enterprise agreement in place, Goonrey suggests conducting a thorough analysis of the makeup of the labour hire workforce and the potential ramifications of a Same Job, Same Pay order to determine whether it would be beneficial to adapt or reduce the use of labour hire.

“It will become a finance issue, an operational issue and ultimately a business issue… [So], realistically, what you should be doing is bringing all the relevant business stakeholders together – finance, HR, operational – and working out, if an application was made, how much would this cost you?

“You’re better off being armed with the information about what the ultimate cost could be, as opposed to saying, ‘Let’s wait and see what happens.’”

Take your employment law expertise to the next level with AHRI’s new Advanced HR Law short course.

The post FWC hands down first Same Job, Same Pay ruling appeared first on HRM online.

An employee who was terminated for allegedly exposing colleagues to “p*rnographic” media was recently reinstated by the Fair Work Commission (FWC), after it found the evidence against him was insufficient and his employer’s investigation process was “deeply flawed”.

In its ruling, the FWC emphasised the distinct lack of procedural fairness in the employer’s handling of the situation.

“[This case] is a reminder of everything that can go wrong if you don’t comply with procedural fairness,” says Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers. “[HR] can basically use it as a checklist of the things not to do.”

The incident in question: lack of procedural fairness

The worker in this case, a truck operator who’d been working at his employer’s mine site for three years, was accused by a female colleague of harassment and inappropriate behaviour.

The incident that prompted her to report his alleged misconduct occurred in January this year when they were sitting close to one another during an end-of-shift bus ride. 

In her complaint, she claims he instigated a conversation with a number of male colleagues about sexually explicit scenarios. She further alleges they were passing around explicit images in a way that made it easy for her to see.

At this point, she had only been employed at the mine for a matter of days, and said his behaviour made her feel “unsafe, embarrassed, humiliated and belittled in front of other employees”.

It was her short tenure at the company that deterred her from reporting the incident immediately, she said; her complaint was lodged in March 2023, over three months after these events took place.

In response, the truck driver was called into a meeting with his supervisors and asked to write an immediate written response to the allegations. The employee denied the allegations, claiming he “had never had explicit images on his phone at work”, and he and his crew “did not and would not engage in the alleged conversations”. 

Following the meeting, he was stood down pending further investigation, and his employment was terminated shortly afterwards.

According to Zhang, the supervisors’ failure to adhere to procedural fairness in the meetings with the employee would have been one of the most significant shortcomings of their approach in the eyes of the FWC.

“What really comes out from the decision is [the importance of] giving people who are accused of misconduct the opportunity to put forward their version of events, and really listening to them. You need to take on board what they’re saying and show you have given it thought.

“As part of procedural fairness, you should [also] give them advance notice, put in writing why you’re having this meeting and give them an opportunity to [prepare] their response.”

This is especially true in this instance given that the meeting took place months after the alleged incident, she says.

They should also be given the opportunity to bring a support person to that meeting.

Employer’s investigation was “inadequate”

During its investigation, the employer interviewed a number of witnesses to determine the veracity of the accusations. The accused employee provided witness statements from two colleagues present when the incident occurred, both of whom corroborated his version of events. 

His accuser also nominated a witness during the investigation, who confirmed behaviour like this was not uncommon at the site; this witness recalled seeing what she suspected to be p*rnographic material being passed around, but said she was not able to confirm the culprits as she had been wearing headphones and trying to stay disengaged at the time.

The employer took the word of this witness as confirmation of the allegations, disregarding the witnesses nominated by the accused as “simply being mates who were standing up for him”.

However, the FWC later discovered that the witness brought forward by the complainant had been present during the initial interview about the incident, which was likely to have tainted the witness’s recollection of events. 

Interviewing witnesses separately to avoid the risk of contaminating evidence is a key aspect of procedural fairness that was overlooked by the employer, says Zhang.

“Investigators also need to be unbiased, independent and have an open mind going into the investigation – they shouldn’t start off by believing one side or the other,” she says.

“What really comes out from the decision is [the importance of] giving people who are accused of misconduct the opportunity to put forward their version of events, and really listening to them.” – Amy Zhang, Team Leader and Executive Counsel, Harmers Workplace Lawyers.

“Their job is to gather all the evidence, interview everyone and then consider at the very end who was right and who was wrong.”

To eliminate the risk of bias, Zhang recommends considering an external investigator in cases like this.

“That’s a really important step that people don’t often think about. Because they normally think [they] need to rush to start an investigation. But you should really step back and ask yourself, ‘Who is the most appropriate person to do this?’”

The employer in this case also failed to gather sufficient documentation to establish that the incident could have occurred in the first place; for instance, the Commission’s later investigations into employee swipe card records cast doubt as to whether his accuser’s recollection of events was entirely reliable.

“[The evidence you’ll need] will depend on the nature of the particular allegations,” says Zhang.

“It might simply be a matter of interviewing the people involved and then taking very good notes. But you may have other sources of data beyond witnesses. 

“For example, if the allegation is that people were writing nasty messages in a group chat, that’s where written and electronic communications will be very important to look at. If it’s an allegation of sexual harassment, at [a certain time], then you might have to look at swipe card and CCTV records to show whether they were there at the time.”

Ensuring procedural fairness during a dismissal

When allegations of misconduct arise at work, there are a number of questions employers should ask themselves before deciding how to go about the investigation, says Zhang.

“First of all, they should consider [whether] there are any issues with the employee remaining in the workplace. Are there any restrictions that need to be imposed? Should they be separated from the workplace?

“Then, they should look at policies. Are there any policies directing the employer that they need to do certain things – whether that’s an investigation policy, a sexual harassment policy or a bullying policy?”

Clear and compliant policies are HR’s best friend in cases like this, she says, as they will define the structure of the investigation process to help minimise mistakes that could expose the employer to an unfair dismissal claim.

It’s a good idea to issue clear directions to all parties involved about the importance of keeping the investigation confidential and not victimising other employees for being a part of it, she says.

Handling misconduct allegations can be a delicate and taxing process for HR, particularly in cases like this which involve very sensitive topics. Zhang recommends taking a preventive approach to avoid having to launch an investigation strewn with potential pitfalls in the first place. 

She says one of the best ways to do this is regular training on compliance with company policies and legal requirements.

“[This includes] training of those who might be asking you for an investigation as well as those who might be doing investigations or relying on the outcome of investigations, so that everyone’s on the same page on what they need to keep in mind,” she says.

By ensuring that both employees and supervisors are appropriately informed about aspects of procedural fairness such as the show-cause process and compliant witness statements, HR can mitigate the chance of misconduct investigations turning into court cases.

In its final ruling on this case, the FWC said it was persuaded there was “a culture of inappropriate activity” on the work buses, but was not convinced of the particular allegations against the dismissed employee and therefore there was “no valid reason for termination”.

The FWC consequently ordered his employer to reinstate him within seven days of the decision. The ruling also stated that a separate order specifying the amount of lost remuneration payable to the employee for unfair dismissal would be issued at a later date.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

The post FWC finds lack of procedural fairness in dismissal for sharing explicit images appeared first on HRM online.

Finding out an employee is shopping around for new opportunities can put HR and managers in a tricky position. 

Juggling the company’s interests and operational needs while ensuring employees are treated fairly in these circumstances is often a delicate tightrope walk with potential legal and ethical pitfalls on both sides.

This is especially true if the employee’s decision to change jobs is not set in stone.

The case in question

A recent case heard by the Fair Work Commission (FWC) has underscored the need for careful and transparent management following the discovery that a worker is looking for a new job. 

The case involved a worker employed by a disaster recovery organisation, who filed for unfair dismissal in July this year on the grounds that he had been dismissed for seeking other work. The employer objected to the application, claiming the employee had resigned from his role.

The employee’s situation began when he started a job search due to anticipated financial strains from his partner’s upcoming parental leave. This led to prospective employers contacting his workplace, which raised concerns within the company.

In response, his manager initiated a conversation with him about his job search and recent sporadic absence from work. During this conversation, he was offered a two-week notice period to find alternative employment.

However, what was allegedly intended as an optional offer was construed by the employee as a termination of employment. 

In its ruling, the FWC noted that this exchange did not make it clear that the employee had a choice in the matter, and the employer did not correct the misunderstanding. 

Therefore, it ultimately found the termination of employment occurred at the employer’s initiative, meaning the employee is free to proceed with an unfair dismissal claim if he chooses to. 

Can job-hunting be valid grounds for dismissal?

According to ​​Michael Byrnes, Employment Partner at law firm Swaab, the simple answer is that an employer cannot dismiss an employee simply because they are looking for another job. 

With that said, it’s possible that the way the employee chooses to go about their job search is in violation of their employment agreement, and is therefore grounds for termination.

“They need to conduct the search in a manner that is consistent with their obligations to the employer,” he says. “[For example], any interviews or applications should be done outside of work hours. 

“An employee should also be careful not to engage in active disparagement of their current employer. They might say, ‘I’m unhappy,’ ‘I don’t feel fulfilled,’ or ‘I feel that my remuneration doesn’t reflect what I bring to the table.’ Those are observations related to your own feelings and views. But to say, ‘The management is inept,’ or ‘The company’s in trouble’ – those types of comments are inconsistent with your obligations as an employee.”

When a prospective new employer contacts the organisation for a reference, HR and managers who are nominated as referees can be put in a difficult position in terms of providing a reference while also meeting their own obligations to their employer, he says.

“[Employees] need to conduct the search in a manner that is consistent with their obligations to the employer.” – Michael Byrnes, Employment Partner at law firm Swaab

“Particularly if you’re a referee and you’re talking to a competitor of the company for which you presently work, and then you give them all that information as part of the reference, in a way you are helping to facilitate a process which is to the potential advantage of this competitor.

“Perhaps [they are] even poaching or soliciting an employee of the business, and you end up effectively helping or taking part in that process.”

This is one reason why it’s so important for employees to be transparent when they nominate a manager or HR practitioner as a referee, as that person may well need to reflect on their position and whether they can provide a reference without compromising the needs of the organisation.

How to respond to an employee looking for another job

The FWC case is a good reminder to HR of the importance of clarity, tact and sensitivity when it’s discovered that an employee is looking for another job.

As a first step, it’s a good idea to try and understand the employee’s reasons for wanting to leave and how serious they are about it, which can help you tailor your response.

While a manager or HR person’s first instinct may be to keep these exchanges confidential, Byrnes warns that there are some circumstances in which you may have a responsibility to notify others.

“Depending on the nature of your role with the organisation, it may well enliven an obligation for you to make [management] aware of that in some way so they can take steps to counteract the solicitation – whether that be offering more money, improving their working conditions or whatever it might be to help secure that employee,” he says.

Circumstances like this are rarely black and white, and there are all sorts of factors that can change what constitutes an appropriate response. It will depend on the nature of the employment relationship and whether there is joint consensus that the employee would be better off in a different role. 

In rare cases, an employee on a fixed-term contract looking for other work might be considered in violation of their employment agreement, even if they conduct their job search in a compliant way, says Byrnes.

“The extent to which an employee can actively look for work while they’re still in employment is an interesting issue, because that’s what most people endeavour to do,” says Byrnes.

“It’s often said, and I think rightly so, that it’s easier and you’re in a stronger position if you’re looking for a new job while you’re still in employment, rather than once employment comes to an end. And you can do that, but it can be a tricky and delicate balancing act. 

“The most important thing is that [the employee] doesn’t become disengaged from their current employer, and doesn’t do anything which is inconsistent with their obligations to that employer, while looking for other work.”

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

The post Can HR dismiss an employee for looking for another job? appeared first on HRM online.

An employee who was sacked for working from home without an approved flexible working arrangement has failed to convince the Fair Work Commission that she was unfairly dismissed. 

The employee, a business development associate at a strata management company, was dismissed in March this year after her employer discovered she had not attended her office for almost three weeks despite being required to work on-site five days per week.

In its decision, the Commission found that the employer had issued “lawful and reasonable” directions to work on-site, with employees given the option to submit a request for flexible working arrangements for consideration by the HR team. 

The employer successfully demonstrated that she had not only failed to adhere to this protocol, but also engaged in dishonest conduct in an attempt to conceal her unauthorised remote work.

According to Will Snow, Director at Snow Legal, this decision is illustrative of the value of unambiguous policies and procedural fairness when it comes to handling flexible work.

“This is a great case, because often you don’t get to see how an employer frames a concern or allegation that [someone has] been working flexibly but without their agreement or knowledge,” he says.

“It’s a really great example of a contemporary workplace investigation done in accordance with good practice.”

Flexible work policy was “lawful and reasonable”

Prior to her dismissal, the employee in question had recently transitioned from another role as a strata manager, a move which involved relocating to the Sunshine Coast. 

While she’d had access to flexible working arrangements in her previous role, her new role required her to work in the Brisbane office one day a week and in the Sunshine Coast office four days a week. 

During her training period, which spanned 12 to 18 months, she was obligated to submit a request for approval from the company’s HR department for any flexible work arrangements. No such request was submitted.

However, in March 2023, her employer became aware that the Sunshine Coast office had not been used for some time, after the manager of the rented office space contacted them to ask if they still needed to use it.

The company’s managing director attended the office to investigate and found an empty desk with a to-do list dated three weeks prior. The building manager confirmed that the employee had not used her electronic key to access the office, and subsequent inspections of her phone records showed she had been working from home during this three-week period. 

This evidence, along with the additional discovery that the employee had sent work emails containing confidential information to her personal email address while working from home, formed the grounds for her dismissal.

“It’s a really great example of a contemporary workplace investigation done in accordance with good practice.” – Will Snow, Director at Snow Legal

Crucially, she was provided with a fair opportunity to respond to the allegations through a show cause procedure. The FWC emphasised this in its decision, noting that the employer had adhered to principles of procedural fairness in handling the misconduct and issued lawful and reasonable instructions to the employee.

What’s considered “lawful and reasonable” by the court is subject to the specific circumstances of both the employee and the business, says Snow.

“For example, throughout the pandemic, it may have been neither a lawful nor reasonable direction to say, ‘You must come into the office five days a week.’ That could have contravened a particular health order or a particular government requirement.”

Now that lockdown periods have passed, requests to return to work are always lawful, he explains, but employers should also take steps to demonstrate that they are reasonable.

“Usually, that gets done by saying, ‘We have a preference for people being in the same space on certain days of the week,’ or, ‘We need to be able to mentor and manage teams. We need to be able to catch up face-to-face on issues. We need to meet with customers face-to-face.’”

Ensuring the reasoning behind your remote work policy is clearly communicated to staff can help mitigate the risk of claims of unfair dismissal being upheld by the FWC. 

Lessons on flexible work requests

The timing of this case is noteworthy, given that it has been less than four months since the first tranche of changes from the Secure Jobs, Better Pay Bill took effect, which included the introduction of increased rights for workers to request flexible working arrangements.

Read HRM’s article on how the Secure Jobs, Better Pay Bill has impacted flexible work.

However, although the new regulations offer certain employees more avenues to fight back against employers who deny flexible work requests, this does not negate the need for appropriate procedure, says Snow. What’s more, the employee did not fall under any of the protected attributes specified in the Bill, which include employees who are: 

• Over 55
• Living with a disability
• Pregnant
• Caring for infants or school-aged children
• Carers (within the meaning of the Carer Recognition Act 2010 (Ch)), or
• Experiencing family and domestic violence, or caring for someone who is.

“It would have been a more complicated situation if [the employee] had said, ‘I have particular caring arrangements that mean that I have to work from home on particular days,’ for example,” he says. “[In that case], it might be quite hard to establish that was a reasonable direction that somebody didn’t comply with.

“But, across all those requests under new or amended laws, you can still have a good reason to say ‘no’. You just need to be able to articulate it in a way that will make sense to the person hearing it. And this is why assumptions about the way in which work has to be done need to be reviewed.”

If you suspect an employee has engaged in misconduct, what should you do next? AHRI’s short course, Investigating Workplace Misconduct, can provide some answers.

The post FWC backs dismissal for unauthorised working from home appeared first on HRM online.

Between assessing evidence, attending hearings and initiating conciliation, responding to unfair dismissal claims can cause serious headaches for employers. 

While most employers would be able to tell you that unfair dismissal occurs when an employee is terminated in a harsh, unjust or unreasonable manner, there are many more layers of complexity to the process that they should be educated about, says Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers.

“It’s important that employers are aware of the minimum requirements relating to unfair dismissal claims so they can take a preventive approach,” she says. 

“This also [allows them to] head off unmeritorious claims at the start.” 

Zhang spoke with HRM to unpack some of the most common myths and misconceptions around the unfair dismissal process and the fine print that HR should know about.

Myth #1: All overtime payments count towards the unfair dismissal earnings threshold.

In order to be eligible to file an unfair dismissal claim, employees’ earnings must fall below the high-income threshold prescribed by the Fair Work Act. The threshold currently sits at $162,000. 

However, there are often misconceptions among employers about the types of payments that can be considered ‘earnings’.

In a recent case, the FWC rejected an employer’s claim that a former employee was not eligible for unfair dismissal because his earnings exceeded the high-income threshold.

While the employee’s total income did push him over the threshold, the Commission ruled that some of it did not count towards his earnings because it came from overtime that was not guaranteed in his employment contract.

“The calculation of ‘earnings’ is prescribed in the Fair Work Act and does not include reimbursements, contributions to a superannuation fund and, in relation to [this case], payments which cannot be determined in advance,” says Zhang.

“The requirement to work overtime is obviously something that is contingent on the needs of the business which are subject to constant change.

“HR should ensure that employee earnings are set out very clearly in employment agreements. If an [overtime] payment is capable of being guaranteed, then that should be identified clearly in the employment agreement.”

“Probation is generally an opportunity for both parties to assess performance, but does not automatically mean that an employee is not protected from unfair dismissal.” – Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers

HR should also be aware that the high-income threshold may not always apply.

“Another misconception is that all employees who earn above the high-income threshold are automatically barred from filing an unfair dismissal claim. Again, this is not necessarily the case,” says Zhang.

“If an employee is covered by an industrial instrument, then there may be scope to file an unfair dismissal claim. This is a complex area, and legal advice should always be sought.”

Myth #2: There is a fixed claim time for unfair dismissals that cannot be extended.

The Fair Work Act stipulates that an unfair dismissal claim must be filed by the employee within 21 days of their termination. According to Zhang, this rule tends to be very strictly enforced by the Commission.

“It’s rare for the [FWC] to grant an extension,” she says. “However, it has been granted where an applicant has been ill (for most of the 21-day period) or where a representative error has occurred.

“The Commission will consider a number of factors, including the reason for delay, whether the employer will suffer any prejudice if an extension is granted, the merits of the application, when the applicant first became aware of their dismissal and general principles of fairness.”

Last year, HRM reported on an unfair dismissal case involving a worker who submitted her claim three days late, but was granted an extension by the FWC on account of her partner’s mental health issues.

In this case, the Commission also considered how the delay was compounded by the challenges presented by the worker’s dyslexia, which it said was likely to have “increased the degree of difficulty for the applicant in meeting the deadline to supply her paperwork”.

While cases like these are exceptions to a strict rule, employers should be wary that the FWC is willing to consider extenuating circumstances for extensions.

Myth #3: Employees can’t file for unfair dismissal if they are on an extended probation period.

A common source of confusion when it comes to unfair dismissals is the distinction between the minimum employment period and a probation period.

Current laws state that employees are entitled to file an unfair dismissal claim after six months of employment – the only exception being employees of small businesses (less than 15 staff), who have to wait 12 months before they can file a claim. 

Although probation periods often overlap with the minimum employment period, they do not have the same bearing on unfair dismissal claims, says Zhang.

“Probation is generally an opportunity for both parties to assess performance, but does not automatically mean that an employee is not protected from unfair dismissal,” she says. 

“It is common for most probation periods to extend for a period of six months, which correlates with the minimum employment period in the Fair Work Act. 

“However, if the period of probation identified in the employment agreement is 12 months, and an employee is terminated after the sixth month, then the employee can still file an unfair dismissal claim despite the existence of the [extended] probation period.”

On the flip side, employees who are taken off probation within the first six months of employment are still not eligible to file a claim until they have completed the minimum employment period, she says.

Read HRM’s article on probation and the minimum employment period.

In cases where an employee’s unfair dismissal claim is invalid for one of the reasons above, employers should not consider themselves ‘out of the woods’ if a claim is rejected, says Zhang.

“If an employee has not satisfied the minimum requirements under the Fair Work Act, they may have other causes of action available to them under the Fair Work Act, like a General Protections application,” she says.

“Accordingly, employers should always take a cautious approach to dismissal, even where an employee does not seem like they satisfy the jurisdictional threshold for protection from unfair dismissal.”

Thanks to Mariam Chalak for her contributions to this article.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

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An employee’s breach of a workplace policy is often relied on as sufficient evidence by their employer as grounds for dismissal. Provided the process leading to the dismissal was fair, a breach of a workplace policy may also be held by a court or tribunal to be a valid reason for the termination of employment. 

However, in order to be relied upon to support disciplinary proceedings, workplace policies should also be clear and comprehensible to the people using them.

In a recent decision, the Fair Work Commission (FWC) reinstated an employee and compensated her for lost pay because it found that, although there was a valid reason for dismissal, the policy breached by the employee was not accessible, understandable or “reasonable”.

Here’s what HR can learn from this case.

Complicated workplace policies

The employee in this case was dismissed for deleting data from a work-issued mobile phone, with the employer citing a complex and detailed IT procedure manual which prohibited the removal of data from work-issued devices without authorisation. 

As a result, the employee’s role was terminated. She then commenced unfair dismissal proceedings against her former employer.

While the FWC considered the act of deleting data as a valid reason for terminating the employee’s employment, it determined that the dismissal was harsh, unjust and unreasonable because: 

• The IT procedure manual that the employee had allegedly breached was “long, complex and legalistic.” 
• The manual did not clearly state that deleting data from a mobile phone without authorisation would constitute serious misconduct and lead to significant disciplinary outcomes up to and including dismissal.  
• Managers and other employees in the organisation routinely deleted data from their mobile phones without repercussions.

The employee was reinstated to her position and compensated for lost pay, with a reduction of 25 per cent to account for her data-deleting conduct.

Read HRM’s article on how to determine the harshness of a dismissal.

Creating clear and concise policies

Employers and HR professionals are reminded that in order to rely upon a policy and enforce its terms, the policy should be:

1. Readily available to all applicable employees.

2. Transparent and clear in its terms. 

3. Reasonable in relation to its objectives and what it seeks to regulate.

To avoid the risk of facing unfair dismissal proceedings as a result of inadequately thought-out or overly complex workplace policies, employers are advised to take note of the following checklist:

1. Adopt plain language as much as possible, and limit the use of jargon and complex or legalistic terms. Policies and procedures should be clear, concise, and related to relevant industry or organisation.

2. Clearly specify the behaviours that may constitute misconduct and/or serious misconduct, and the particular sections of the policy that, if breached, may constitute misconduct.

The policy should also specify what, if any, disciplinary action may follow on from a breach. If a policy is lengthy and contains a range of obligations of differing scopes, a catch-all provision noting that any breach of the policy may constitute misconduct is likely to be inadequate.

3. Before disseminating a policy, imagine being in the position of an employee accused of breaching its terms. Are the policy’s objectives and terms easy to understand? Is what the policy seeks to regulate reasonable? Is the mode of communicating the policy effective? Having various modes of communicating the policy such as video format, a written document and, if possible, in a summary document for onboarding, is recommended.

4. Update policies and procedures regularly to remain compliant with legislative changes, such as the many that are arising from the Secure Jobs, Better Pay Bill, and be consistent with evolving workplace practices and community standards. Do this every 12 months (more if there is a large-scale legislative change, as is the case in 2023).

Conduct regular reviews to ensure uniform compliance with the policies and procedures among managers and supervisors and in each sector of the workforce.

5. Communicate policies and procedures clearly and frequently, particularly where the obligation is strict. If employees are not familiar with a policy and its terms, relying on the policy as a ground for termination will likely be challenging. For employees who have challenges with comprehension, and/or who are non-English speaking, consider what adjustments you may need to make to communicate policies and procedures to make them easily understood.

Getting your policies and procedures in order is not a task to put on the backburner. A compliant and clear policy can keep your organisation out of hot water, especially in the current legislative environment, which is changing quickly and often.

Need help crafting policies that set clear behavioural expectations and meet FWC requirements? AHRI’s short course will help you understand how to structure, write and implement policies and procedures.

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A recent decision from the Fair Work Commission (FWC) has confirmed that employers are able to rely on the “full extent” of misconduct, including information discovered after dismissing an employee, to justify a valid reason for dismissal when faced with an unfair dismissal claim.

Facts discovered after dismissal

The case involved a senior asset manager who was dismissed after their employer discovered an email chain in which sensitive information was shared with a client.

In the email, the asset manager advised a client that contractor rates were significantly above the threshold contained in the Services Agreement, requiring investigation. Asserting that in the absence of consultation with their superiors, the email embarrassed the company and breached contractual obligations, the company stood the employee down pending an investigation, ultimately moving to terminate the employment relationship. The employee then filed an unfair dismissal application with the FWC.

During the unfair dismissal proceeding, the company presented evidence discovered after the dismissal, including a handwritten note strategising to persuade the client to extract the role from the company and install the asset manager as a dedicated liaison between the client and the company. It also presented evidence that the confidential Services Agreement was emailed to the asset manager’s partner, a former employee of the company. 

Contending that the employee had lacked truthfulness in disclosing their relationship, the company said the decision to email a copy of the Services Agreement to a former employee further breached their contractual confidentiality obligations and caused a loss of trust and confidence.

“Dismissals cannot be an ‘act now, defend later’ course of action. Employers must always ensure procedural fairness when moving to terminate an employee.” – Andrew Jewell, principal at Jewell Hancock Employment Lawyers.

Commissioner Platt stated that although it was only after dismissal that the company became aware of the extent of the misconduct, the company could rely on the “full extent” of the misconduct as a valid reason for dismissal. 

Without the additional evidence of misconduct, the FWC may have found this dismissal harsh, unjust and unreasonable, leaving the employer forced to pay compensation to the dismissed employee. However, after the FWC found that a valid reason for terminating the employment existed, supported by the post-dismissal evidence, the employee’s application was unsuccessful.  

Lessons for HR

This case builds on previous decisions by the FWC that allowed information acquired after the dismissal took effect to be considered when determining whether a termination was harsh, unjust or unreasonable, even if the employer was unaware of that information and did not rely on it when the dismissal occurred.

Whether an employer can rely on details acquired after dismissing an employee to justify termination will depend on the circumstances and how the dismissal occurs. For example, failure to make reasonable inquiries that would have exposed existing facts before dismissing an employee might not result in a circumstance where employers can use post-dismissal knowledge as a justification. 

Dismissals cannot be an ‘act now, defend later’ course of action. Employers must always ensure procedural fairness when moving to terminate an employee, including the employee’s right to be notified of alleged misconduct and allowed to respond to any allegations. 

Employers who seek to rely on a reason for dismissal other than the grounds given to the employee, or relied upon at the time, will have to contend with the consequences of not allowing the employee opportunity to respond to the new reason. 

Ultimately, the FWC must determine whether, on the evidence provided, facts existed at the time of termination to justify the dismissal. 

Andrew Jewell is a principal at Jewell Hancock Employment Lawyers.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

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A recent case of unfair dismissal has been upheld by the Fair Work Commission (FWC), after a sales executive at a boutique liquor retailer was accused of making racist comments and given a ‘resign or be sacked’ ultimatum by her manager.

Commissioner Jennifer Hunt said that while the employee’s comments demonstrated “unsophisticated emotional intelligence”, her employer’s suggestion that they were “racist” and constituted a breach of workplace law was a “gross exaggeration”.

In order for an unfair dismissal claim to be upheld, the FWC must find that the employer dismissed a worker in a “harsh, unjust or unreasonable manner”. In this case, the Commissioner found not only that the employer had been harsh in its classification of the employee as a racist, but that it had also neglected its duties to follow correct procedures for summary dismissal.

The employee was consequently awarded with $13,500 in compensation, recognisant of the fact that she had been unemployed for eight weeks following the dismissal, and had ultimately taken a role at another organisation with lower pay than her previous job.

“This a very instructive case in relation to unfair dismissals, and also in not jumping to conclusions that an employee’s conduct is something that it may not be,” says Aaron Goonrey, Partner at Lander and Rogers.

“This is a good illustration that even in a case where you think the conduct is extreme, and you think you’ve got grounds for summary dismissal, that does not necessarily give you a right to avoid following a process.”

‘Insensitive’ comments did not warrant dismissal

The incident that triggered the employee’s dismissal occurred when she was overheard speaking on the phone with a coworker about the company’s marketing manager. The employee had just taken a large order from a customer that would create a lot of complex and time-consuming work for the marketing manager – work that the employee knew she did not enjoy. 

As a result, the employee joked to her colleague on the phone that the marketing manager would “swear at her in Brazilian”. When her colleague told her that the manager was actually Argentinian, not Brazilian, the employee replied, “They’re all the same.”

The employee was subsequently called into an unscheduled meeting with her manager, and was told that she could either resign or be dismissed because she had made “racial slurs” about a colleague. 

“This is a good illustration that even in a case where you think the conduct is extreme, and you think you’ve got grounds for summary dismissal, that does not necessarily give you a right to avoid following a process.” – Aaron Goonrey, Partner at Lander and Rogers.

In her appraisal of the unfair dismissal claim, Commissioner Hunt said that while the employee’s comments did not constitute ‘racism’, they showed a lack of “geographical intelligence”, and the employer’s response “should have involved some cultural training”. However, she said the employer “ought to know that requesting a person resign or be terminated is simply no longer acceptable”. 

Goonrey points out that the employer rushed to characterise the comment as ‘racist’ on face value, without careful consideration of whether it was actually unlawful with regard to the Racial Discrimination Act 1975.

“This conduct is disrespectful and it is discourteous,” says Goonrey. “And I think the employee has to wear that – you can’t go around and make those types of remarks. But are they racist in nature? That’s questionable.”

An interesting aspect of the Commissioner’s ruling was her observation that people confusing various accents is a common occurrence, giving the example of Australian and New Zealand accents often getting mixed up.

“I do have some sympathy for the employer because you can see [a case where] someone mixes up nationalities in a mocking way, and then starts to expand upon that and vilify someone,” says Goonrey.

“More often than not, in my experience, when employers think something is completely out of bounds, and it’s to the extreme, they jump to the conclusion that the punishment also has to be extreme, without pausing to think, ‘Is what we’re looking at really so serious as to warrant the disciplinary action that we’re contemplating?’”

How to ensure procedural fairness to avoid unfair dismissal claims

While the employer’s accusation of racism in this case proved to be unfounded, Goonrey says that even if the employee’s comment had been legally classed as racist, the employer would still be vulnerable to legal action based on the way the dismissal was conducted.

Most significantly, the employee was not provided with any prior notice of her dismissal or details of the allegations in question. She was told at the time that she had made other racist comments in the past, but the manager refused to elaborate on when these incidents occurred.

Fair Work’s criteria for ‘harshness’ in an unfair dismissal case considers whether the employer demonstrates a valid reason for dismissal, and that the person is given an opportunity to respond to the reasoning behind it – neither of which occurred in this case. 

The employee was also not given the option of having a support person present during the dismissal proceedings. The absence of a support person was recognised by the FWC in its ruling, but the Commissioner noted that while employers cannot refuse employees the right to have a support person present, there is no positive duty for them to offer this provision.

However, according to Goonrey, proactively offering employees this option is advisable to help ensure that the dismissal is being conducted in the most ethical way possible.

Read HRM’s guide on managing support people in sensitive meetings.

“I see no reason why an employer could or should not afford the opportunity of having a support person present, particularly if the employee is vulnerable – for example, if English is their second language – because [in those cases], there’s a huge power imbalance between the employer and the employee,” he says. 

“Even if it’s not legally necessary, we should be looking at it with a very broad lens to ensure that we have fulfilled everything we possibly can in relation to a procedurally fair dismissal.”

As well as providing access to a support person, it is advisable that HR/managers:

• Give a clear indication of the cause of dismissal in a written format
• Offer the employee a “fair and reasonable” chance to respond to the claims
• Give the employee time to seek advice
• Consider if warnings have been given in the past. If not, consider if this would be appropriate in this instance
• Can prove to the Commission that they considered the employee’s response before deciding to terminate.

Cases like this are a valuable reminder to employers that no matter how severe the behaviour is, they are not immune to retribution when established procedures are not followed correctly.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

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The Fair Work Commission (FWC) has come down on the side of an employee who argued against his employer’s stand down order earlier this year. 

The employer, an airline services provider, stood down staff between 30 March and 3 May this year. It was the third round of stand downs it had initiated, after standing down other employees in 2020 and early this year.

During the most recent stand down period, the employer was able to continue operating at roughly 13 per cent capacity. It chose to continue rostering on employees who were trained to service multiple airlines, while standing down employees (such as the applicant in this case) who were only trained in one airline.

FWC Commissioner Christopher Platt agreed that the stand down was legal under section 524 of the Fair Work Act. However, Platt ruled that the employer unfairly selected those who would continue receiving shifts and those who would be stood down.

“Stand downs have been around for a long time, but we haven’t seen them on this scale before,” says Aaron Goonrey, Partner at Lander & Rogers’ Workplace Relations & Safety practice. 

“So these cases testing the legitimacy of stand downs are very interesting.”

So how should an employer assess for fairness when considering stand downs? HRM asked Goonrey to explain.

“If there is some work, then all employees need to be considered equally if they are capable of completing it.” – Aaron Goonrey, Partner at Lander & Rogers’.

Playing favourites

To understand how fairness was considered (or ignored) in this case, we first need to look at the facts around how the employer’s operating and rostering decisions were made during the third stand down phase. 

The organisation handles customer services operations for several airlines, as well as arrivals duties that include assisting wheelchair users and helping unaccompanied minors. Employees need to be trained in the operating system of an airline before they can work for them. No training is required for arrival duties. 

The employee was trained to work on one airline and in the mishandled luggage portion of the business. However, a wrist injury hindered his ability to complete the required tasks for mishandled luggage. He also had a flexible work arrangement which restricted his rostered hours to between 8.00pm and 2.00am.

The airline the employee was trained to work for only had one flight during the second and third stand down periods.

All employees were given the opportunity to upskill on different airlines during the second shutdown period. However, for unknown reasons, the employee did not complete any training. 

During the third stand down, the employer would roster staff for operating airlines and assign arrivals duties if the rostered time did not add up to at least 19 hours. Employees who could work across multiple airlines were prioritised over those considered less qualified.

According to the evidence supplied by a manager at the company, staff who could work across a variety of airlines were seen as “more valuable” and therefore rostered on more regularly to “reduce the risk of these employees resigning”.   

Retaining highly trained staff makes basic business sense. However, the Fair Work Act requires employers operate from a place of fairness and not place an undue burden on employees. 

“[The commissioner] did appreciate the employer’s challenge in this matter,” says Goonrey. 

“[However,] he said that the decision not to provide any work to the employee, while understandable, posed an unfair burden on the [employee].”

Choosing who gets stood down

In his decision, Commissioner Platt cited a 2020 case where an employer attempted to reduce the impact COVID-19 was having on the business by standing down one employee and retaining the rest. 

In that case, Deputy President Peter Anderson found that the fair approach would have been to distribute the labour among several employees, allowing them all to work, albeit in a reduced capacity. 

The 2020 decision stated: “Fairness between the parties, objectively assessed, may not displace some sense of lingering injustice felt by one or both sides.”

This means it’s up to the employer to consider what is fair for everyone in a bad situation, explains Goonrey. 

The argument could be made that it’s ‘unfair’ to take hours away from employees who have more diverse skills, but Goonrey says this wouldn’t take away from the fairness assessment.

“We don’t know why the employee in this instance didn’t take up additional training, but it doesn’t mean they shouldn’t be considered for the limited work available,” he says. 

If an employer experiences a reduction of work outside their control (e.g a pandemic) then the expectation is that the burden of that reduction will be split between employees and the employer. 

In this case, Platt determined that the employer’s actions were to the detriment of less skilled employees, such as the employee in question. In his estimate, Platt found the employee could have worked roughly 20 per cent of his pre-pandemic hours. As a result, the employee was awarded $547.20 in compensation. 

“Fairness between the parties, objectively assessed, may not displace some sense of lingering injustice felt by one or both sides.”

How to stand down fairly

When there is limited work available, Goorney says employers should ask themselves a few questions:

• Is this work something only certain employees can do?
• Are you rostering some employees more than others?
• Who are you not rostering on, and why?

“If you have a valid reason – for example, it is impossible for that employee to work – then of course you can’t roster them on,” says Goonrey. 

“But as this case shows, if there is some work, then all employees need to be considered equally if they are capable of completing it.”

Employers should also be transparent with staff who have been stood down, he adds. Communicate why certain employees are still being offered work: is it their skill set, the type of work they do, their location etc? 

With this transparency, if an employee does complain to the FWC about being stood down, you should have a documented explanation for the decision you made and why, says Goonrey.

Want to learn more about stand down orders and other confusing legal requirements? Register for AHRI’s Introduction to HR Laws short course.

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An appeal to overturn a decision awarding a record amount in damages to a former employee of an ASX-listed software company has been allowed, with a new trial ordered, finding the primary judge failed to provide adequate reasons for the decision and did not address all the evidence. 

Last year, the employee had successfully claimed that TechnologyOne Ltd had taken adverse action against him when it dismissed him after he’d made complaints about being bullied by the CEO and other high-level management staff.  

The initial decision resulted in a $5.2 million payout to the former executive in compensation and general damages.

However, the employee then initiated his own cross-appeal, claiming the multi-million payout was “manifestly inadequate” (keep in mind, this was the largest court-ordered payout on record for this type of claim!). 

The Federal Court has since overturned the case and ordered a retrial, the date of which is yet to be determined.

Commenting on the matter in a press release, TechnologyOne’s CEO, Edward Chung, and Executive Chair, Adrian Di Marco said: “We are pleased that the original judgment in this case has been overturned… as has been previously reported in the press, this was a senior executive earning close to $1 million per year, who no longer had the confidence of the board and his fellow executives and against whom serious allegations had been raised by staff, and we took action to address [this] in 2016.”

The key takeaways from the appeal  

In its decision delivered on 5 August 2021, the Full Court found that the judge in the earlier case had not provided adequate reasons for his decision and that he didn’t properly consider the evidence before the Court.

It was also found that he had potentially miscalculated the employee’s contractual entitlements in determining the payout.  

A new trial was necessary to “evaluate the nature of the complaints and the circumstances in which they were made”.

To summarise, it was found that the judge also failed to:

• Answer the essential question of whether TechnologyOne had established that it had not taken adverse action (the employee’s dismissal) in contravention of the Fair Work Act.  
• Consider evidence put forward by TechnologyOne (which pre-dated any bullying complaints by the employee) as the true reason for the employee’s dismissal, including evidence that:
  • the employee’s performance had been dropping with respect to reaching financial targets; 
  • there was poor team culture within the team managed by the employee; and
  • the employee had poor relationships with his direct managers.
• Properly consider whether the complaints made by the employee were a substantial or operative factor in the CEO’s decision to terminate the employee’s employment.
• Correctly quantify the amount owed to the employee under his contract of employment in respect of incentive payments. 

(If you’re looking for a legal refresher on what constitutes an adverse action claim, you can find that here).

The evidence put forward by TechnologyOne to substantiate its reasons for dismissal included a series of emails dating back as far as 2014.  

The emails were between the CEO and the employee, and raised issues with the employee’s refusal to take responsibility for financial forecast failings and poor management of his team, including serious allegations that the employee was bullying members of his own team. 

Want to learn more about adverse actions and how to avoid them? AHRI’s short course, Introduction to HR Law, has all the basics of employment law covered. Sign up for the next course on 28 October. AHRI members receive a discounted rate.

How did the adverse action claim eventuate?

If you missed HRM’s 2020 coverage on the original case, here’s a quick refresher (or you can view the full article here).

The employee had been working as a senior manager for TechnologyOne for almost a decade between 2006 and 2016. He was generously paid for his role and experience, with his gross income increasing from over $200,000 to over $800,000 during his employment, thanks to the company’s senior manager incentive payment scheme.  

In the last few years of his tenure, his personal life and relationships with other managers began to suffer.

The breakdown resulted in the employee making a number of complaints that he was allegedly being bullied by senior executives at the company. He claimed he was being undermined in his role, that his position was threatened, and that he was verbally abused and sworn at in front of other staff. 

The employee claimed he was experiencing increasing marginalisation within TechnologyOne as his complaints continued to go without investigation by HR, according to him.  

In 2016, he was summarily dismissed by the company’s CEO on the ground that the CEO had “lost faith that he was the right person to grow the business”.  

In 2020, the employee commenced proceedings in the Federal Court against TechnologyOne and its CEO personally, claiming adverse action had been taken against him because of his complaints.  

In turn, it was argued by TechnologyOne and the CEO that the employee was dismissed because his performance had deteriorated, with the defendants maintaining that he had not been bullied.  

In the original case, the Court accepted that the employee had made bullying complaints. The Court rejected the CEO’s reason for the employee’s dismissal and TechnologyOne had no evidence to prove that the employee’s dismissal was not motivated by his bullying complaints.  

TechnologyOne and the CEO received penalties of $40,000 and $7,000 respectively for breaching adverse action provisions under the Fair Work Act.  

The employee was awarded $5.2 million in compensation for foregone share options, breach of contract, future economic loss, general damages, and bonus payments.  

This decision was appealed by TechnologyOne and the CEO, with the employee making a cross-appeal in January this year, claiming the primary judge should have awarded him more in compensation, as the judgment was incorrect in assessing his future loss of earnings on the basis the claim was confined to 30 September 2020 and should be extended to a future retirement in 2027.  

Why is this important for HR?

As if employers weren’t busy enough managing employees remotely and in challenging circumstances, this case provides a timely reminder of the care employers and HR practitioners should take when handling employee complaints and dismissals, especially when it comes to evidencing processes and decision-making.  

To ensure best practice: 

• Develop tailored training for HR and senior management teams to prevent, identify and respond to workplace bullying, avoid unreasonable behaviour and manage psychological risks and workplace culture.
• Review your bullying policy and complaints processes to ensure your business has a thorough structure in place for processing and addressing employee complaints. 
• Establish methods for recording the decision-making processes of those responsible for terminating employees. A decision-maker may later need to justify, with evidence, that their decision was for genuine reasons.  
• Keep clear records and retain any information or correspondence relating to employee performance, culture and management issues. In this particular case, the emails that corroborated the CEO’s reasons for the employee’s dismissal played a key role. 

What happens next? 

We can expect to see a re-trial of the case early to mid-next year in the Federal Court.  The extent to which the outcome will be different remains to be seen.  There is still every chance the Court may reach a similar finding to the first decision, or perhaps award even more in compensation, once all the evidence is considered as part of the new trial. Watch this space.  

Aaron Goonrey is Partner and Bianca Banchetti is a Lawyer in the Workplace Relations & Safety team at Lander & Rogers. Emma Dann, law graduate, also contributed to this article.

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