A recent case has provided further guidance in Australian employment law on the role of multiple decision-makers in matters involving the termination of employment. 

This case serves as a critical lesson for HR and employers on the importance of either a unified approach by all decision-makers involved in the termination process, or having a single impartial decision maker. 

The case also illustrates the importance of employers providing thorough and transparent reasons for termination of employment.

A brief outline of the case in question

In April 2020, a former employee and truck driver for a freight and logistics employer filed an adverse action application, alleging that the employer wrongfully dismissed him from his position.      

Among other allegations, he claimed that this action was in contravention of statutory protections, as he had exercised a workplace right and believed that the dismissal was in response to him exercising this right.

The Federal Circuit and Family Court found that the former employee’s dismissal was not due to alleged safety breaches or unprofessional behaviour as asserted by the managers. Rather, the Court found that the dismissal constituted unlawful adverse action against the former employee by the employer in relation to having exercised workplace rights, including requesting flexible work arrangements, querying the alleged underpayment and initiating proceedings with the Fair Work Commission.

The dismissal occurred after the national HR manager perceived the former employee’s queries about a flexible work arrangement to care for his child, and his queries about alleged underpayment, as “badgering” and “harassing”. 

The Court found that most of the former employee’s email interactions were respectful, and that he was seeking solutions to genuine issues, not harassing the HR manager. 

The HR manager acknowledged to the Court that in the event of significant safety violations involving an employee, it would be standard procedure for the overseeing manager to initiate a comprehensive investigation. However, the HR manager admitted that there was no paperwork before the Court about any investigation having been conducted into any of the alleged safety matters involving the former employee.

The Court highlighted that there was no documented evidence showing how the single alleged safety incident, which reportedly resulted in a “verbal warning”, transformed into a history of safety issues in breach of the employer’s ‘Three Strike Policy’, or “continual breaches” of that policy, which were given by the employer as reasons for the dismissal decision. 

The Court pointed out that there was a deficiency of credible evidence from the employer regarding the investigation and clarification of supposed safety issues involving the former employee. Moreover, evidence of the explanations provided by the employer for the dismissal was either non-existent or lacked credibility as to how the alleged safety concerns were factored into the decision to terminate the worker’s employment. 

This lack of evidence and plausible explanation convinced the Court that the alleged safety issues likely never occurred. Further, the Court held that the safety issues could not have been significant or influential factors in the decision to dismiss the former employee. 

The Court found no evidence of the serious safety issues that were claimed to have occurred, and accordingly, concluded that these could not have been substantive or valid reasons for the dismissal.

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The intricacies of decision-making in dismissal cases

A key aspect of this case was the involvement of multiple decision-makers, including the national HR manager, a partner of the business, the national transport manager and two state-level managers. 

Despite there being five decision makers, only two of these individuals provided evidence to the Court about the reasons for the dismissal of the former employee – the national HR manager, and the national transport manager. 

The Court found no explanation or evidence capable of discharging the reverse onus imposed on the employer in matters like this. 

Accordingly, the Court was satisfied that adverse action had been taken against the former employee by the employer in dismissing him from his employment for exercising his workplace rights.

Understanding the reverse onus of proof 

Under the applicable Australian law, once an employee establishes an apparent case that their dismissal may have been due to the exercise of workplace right(s), the onus shifts to the employer to prove otherwise. 

In this case, the employer had failed to discharge the reverse onus as it did not provide sufficient evidence or explanation from all decision-makers involved in the dismissal of the former employee.

The Court determined that the employer did not provide adequate evidence to counter the presumption that the former employee was dismissed for exercising his workplace rights. 

The absence of evidence from other decision-makers besides the national HR and transport managers left the Court without a substantive defence from the employer. 

The ruling stated: ‘There was no opportunity for the state of mind or mental processes of the not-called other joint decision-makers to be exposed to or considered by the Court. Further, the Court can also infer that those other joint decision-makers were not called because their evidence may not have assisted [the employer’s] case that the reasons for the dismissal were limited to alleged safety issues and alleged unprofessional behaviour.” 

The judge noted that the former employee’s minor disrespect in an email came late in a series of communications and did not justify dismissal. Instead, the timing suggested that a reason for dismissal may have been the former employee’s threat to involve the Fair Work Ombudsman, which occurred the day before the discussion of his dismissal.

Further, the national HR manager and national transport manager admitted that they had omitted some reasons for the former employee’s dismissal in the dismissal letter. The Court found that these omitted reasons included the former employee’s complaints about underpayment, which are a protected workplace right. 

Lessons for HR and employers 

This case highlights several important lessons for HR and employers. Firstly, it’s essential that all decision-makers are aligned and that their reasons for termination are comprehensively documented and presented. 

Had the employer in this case led uniform evidence from all the decision-makers about the reasons for termination, the result may have been different. Discrepancies or omissions in the reasons for dismissal will likely be detrimental, as seen in this case.

Secondly, employers must be aware of the reverse onus of proof where purported workplace rights are being exercised and prepare accordingly. This involves having a clear, documented rationale for termination that is not related to an employee exercising a workplace right. 

Finally, where possible, employers should elect to have an impartial and sole decision maker in dismissal matters – ideally, someone who is not involved in any previous process or the facts of a matter which may lead to the dismissal of an employee. 

The decision maker should ideally not be familiar with or involved in any workplace rights that the employee may have, or have exercised. Their decision regarding any disciplinary action, including dismissal, should be based objectively on the employee’s performance, conduct or behaviour. Accordingly the decision maker’s lack of knowledge about any workplace rights in the matter, would be advantageous. 

This decision is a reminder of the consequences of inadequate preparation and inconsistent decision-making in adverse action cases. 

The matter is set to proceed to a penalty hearing for the contravention of the relevant legislations, with legal costs reserved.

Aaron Goonrey is a Partner and leads the Australian and APAC Employment & Rewards practice at Pinsent Masons and Yuliya Chis is an Associate at Pinsent Masons. The advice in this article is general in nature and does not constitute formal legal advice.

The post The impact of multiple decision-makers in dismissal cases appeared first on HRM online.

The convenience of digital technology has seen more employers using social media applications as a helpful communication and rostering tool. While this enables employers to streamline some business functions, it can also expose them to new legal challenges.

A recent Fair Work Commission decision found that removing an employee from a WhatsApp group dedicated to allocating shifts constituted a dismissal at the employer’s initiative. This is the second decision of this type in recent months. In both cases, Deputy President Amber Millhouse dismissed a jurisdictional objection by the employer claiming that no dismissal had occurred. 

So should you think twice about removing an employee from a group chat?

Underpayment claims prior to dismissal

A high school student working as a casual employee at a kebab shop filed a general protections application following her removal from the WhatsApp group. The employee routinely worked around her schooling commitments, at times requesting periods off but remaining in the chat group. 

Before being removed, the employee had raised underpayment concerns with her employer. After some back-and-forth correspondence and a meeting, the employee sent a final message requesting that her working hours be recalculated and restating her underpayment concerns. Later that day, she found herself no longer in the WhatsApp group.

The employer contended that it routinely adds and removes employees from the group, including when employees make themselves unavailable to perform work for a short time. This contradicted evidence given by the employee that, in her experience, employees were never removed from the WhatsApp group unless they were “fired”. 

“Any conduct that makes it practically impossible for employees to complete their work could be construed by the FWC as a dismissal.”

The employer also claimed it removed the worker from the group “so as to not distract [her] with the group messages while she studied”, but the FWC found insufficient evidence to support this statement.

Based on the evidence, Deputy President Millhouse found the WhatsApp group to be the primary means for allocating shifts. So it followed that being removed from the group meant the employee would not be assigned shifts in the future.

While it was noted that the employer did not explicitly tell the employee her employment had ceased, and said she was welcome to return to work, Millhouse found that removing the student from the group was the principal contributing factor which ended the employment relationship.

That is, the FWC formed the view that the absence of any explicit communication of dismissal did not nullify the conduct in removing the employee from the group.

Satisfied that the employee was dismissed within the definition of section 386 of the Fair Work Act 2009, Millhouse dismissed the jurisdictional objection and referred the general protections application for conciliation.

Legal takeaways for HR

Section 386 provides that a person is dismissed when their employment is terminated on the employer’s initiative.

Millhouse’s decision confirms that a dismissal can occur where the action of the employer is the principal contributing factor leading to the employment termination, even if there is no explicit communication of a decision to dismiss. 

Employers and HR professionals should always be mindful that any conduct that makes it practically impossible for employees to complete their work could be construed by the FWC as a dismissal.

A version of this article was originally published in the June 2023 edition of HRM Magazine.

Trent Hancock is a Principal at Jewell Hancock Lawyers.

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The post Removing employee from WhatsApp group amounted to dismissal, finds FWC appeared first on HRM online.

Terminating a casual employee is a sensitive topic and is probably an undertaking that most people working in HR or management would want to avoid unless absolutely necessary. 

However, termination of employment is unavoidable in business, as there will be instances where a team member exhibits bad behaviour, their performance is not up to standard, or challenging times for your business require budget cuts. 

Irrespective of the reasons for needing to terminate a team member, you need to clearly understand the steps to follow in order to treat the person with dignity and respect – and to keep your business out of legal hot water. 

Casual employment does not offer a firm advance commitment to an ongoing agreed pattern of work. As such, employers have the flexibility to allocate work as required.      

Furthermore, if a team member is truly a casual employee as per the Fair Work Ombudsman’s (FWO) criteria, then termination of that team member can occur without notice. Casual employees can also leave without providing any notice to their employer.            

As a precautionary measure, the team member’s contract and industrial instrument (modern award) need to be checked in case further detail of their employment status is specified there. 

This article will cover the appropriate way to terminate a casual employee, and unpack other information that might be helpful, including how to understand if a team member is truly a casual employee or not.

What defines a casual employee?

As of late, there has been a lot of scrutiny around how employers engage employees, as part of the latest Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth). This includes amending fixed-term contract regulations and the casual conversion pathway within the National Employment Standards. The latest reforms are focused on curbing the ability of employers to hire team members as gig or long-term casual employees. 

These changes are significant steps in redefining how employers should evaluate their workforce requirements and, in turn, how they engage employees. It is therefore crucial to understand your obligations as an employer to avoid any associated penalties from the FWO. 

Casual employees are team members who have accepted an offer of employment with the knowledge that there is no commitment to ongoing work or an agreed pattern of work. 

Casual employees work irregular hours, and their shifts vary from week to week to suit the employer’s needs. 

Under the recent casual conversion laws, casual employees who have been employed for more than 12 months need to be offered the opportunity to convert to full-time or part-time permanent employment. However, further eligibility criteria will apply. You can read more about that here.

Risk of unfair dismissal

An unfair dismissal is when an employee is terminated from their job in a harsh, unjust or unreasonable manner.      

However, casual employees are excluded from bringing unfair dismissal claims unless they: 

• Worked regularly and systematically
• Had a reasonable expectation of continued employment
• Worked for more than 6 months (non-small business employer) or 12 months (small business employer).

Essentially, this means they have been misclassified as a casual employee. If a ‘casual employee’ meets the above criteria, they are entitled to lodge a claim for unfair dismissal. The outcome of the claim will depend on the individual facts and circumstances of the case. 

Risk of general protections claim

However, even if a worker is deemed to be a casual worker, and therefore cannot file for unfair dismissal, they still have access to other types of claims under the Fair Work Act, such as a general protections claims. General protections laws extend to full-time, part-time, casual and fixed-term employees, including potential employees (job applicants). 

General protections laws protect employees in situations where workplace rights are affected from the following:      

• Harmful (adverse) action
• Coercion
• Undue influence or pressure
• Misrepresentation

Therefore, a casual employee could lodge a general protections claim if they are of the view that their employer has taken adverse action against them for having exercised, or having proposed to exercise, a workplace right.

The term ‘workplace right’ is defined by the FWO as when a person:

• Is entitled to a benefit or has a role or responsibility under a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body.
• Is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument.
• Has the capacity under a workplace law to make a complaint or inquiry.

“Casual employees are team members who have accepted an offer of employment with the knowledge that there is no commitment to ongoing work or an agreed pattern of work.”

Things to consider before termination      

If you are unclear as to whether your team member is a permanent employee or casual employee, you should proceed with caution and treat them as you would a permanent employee.  

Consider the following before proceeding with the termination:      

• Did you have a valid and lawful reason for termination?’It’s advised that you ensure the reason for termination is not deemed harsh, unjust or unreasonable. Ensure you have a valid reason related to the employee’s performance or conduct.
• Did you follow a procedurally fair disciplinary process?Notify the team member of the reason for termination and grant them the opportunity to respond to it. Provide the team member with the opportunity to bring a support person if they request it.
• Do I need to pay a notice period?Casual employees, as defined by the FWO, are not entitled to a notice period or payment in lieu of notice under the FW Act. If the employee should be classified as a permanent full-time or part-time employee, as per the criteria under the FW Act, then a notice period or payment in lieu of notice may apply. Verify their employment contract and applicable industrial instrument (modern award) for specific obligations regarding a notice period.
• Is redundancy applicable?Most casual employees are not entitled to redundancy. However, if the casual label is misapplied and the employee is considered a permanent full-time or part-time employee, and their role is no longer required to be performed by anyone, then a redundancy situation may arise.

The basics of a termination meeting

Below are some of the basic things to consider when preparing for the termination of a casual employee:

• Offer a support person to be present

It’s advised to offer a support person to be in attendance at a termination meeting (and at any disciplinary meetings in the lead up to a termination). This may work in your favour should you get called in front of the FWC. It is not a legal requirement to offer someone a support person. However, employers cannot deny someone the chance to have a support person present in a meeting.

• Provide 24 hours’ notice

Provide the team member with 24 hours’ notice of the meeting and provide adequate information about what the meeting will entail (e.g. disciplinary meeting), so they can prepare themselves for the meeting and find a support person if they so desire. 

• Empower managers to advise of termination

The team member’s manager should be encouraged and coached on how to best deliver the termination news to their direct report. It is recommended to highlight specific examples of previous attempts utilised to rectify the situation (e.g. performance improvement plans, training or formal warning(s) issued). The termination letter should also encompass these details, so the employee has a physical record of the steps taken to support them in rectifying the situation. 

• Keep it to the point

It’s best to cut to the chase in this situation and mention termination as soon as possible. Share the decision to terminate their employment with the team member and explain why, but don’t go into excessive details unless the situation warrants it. 

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

Terminating casual employees summary

In the circumstance where you need to proceed with the termination of a casual employee, first and foremost ensure they are a casual employee as per the criteria under the FW Act. 

In the instance where the team member is a permanent employee despite the ‘casual’ label given to them, it is critical to ensure the termination of employment is for a valid reason and certain rules, such as notice, and severance pay are adhered to. 

It’s always advisable to ensure entitlements owed to the employee are processed within seven days of termination. 

Termination of a casual employee is not a pleasant process. It’s always best to treat team members with respect and dignity when terminating their employment – irrespective of their employment status. 

As the saying goes, “People won’t necessarily remember what you said, but they will remember how you made them feel”. Taking a fair and kind approach, irrespective of whether an employee has grounds for lawful termination, might help you avoid reputational damage to your business in the long term. 

Cedric Moutou is a HR professional with 12+ years of experience. He has worked with various industries, from start-ups to large global organisations.      

The post A guide to terminating casual employees appeared first on HRM online.

Last October, a motor services company dismissed a technician for failing to meet his key performance indicators (KPIs). The company said he fell short of selling batteries to customers at a minimum of 24 per cent of the jobs he attended and that this low sales rate differed from his colleagues.

The employer also said he failed to reduce the time he was taking at each callout (he spent longer than the 17 minutes target set for each job) and had an “exceptionally high” rate of replacing batteries under warranty. For example, the company said in August 2021 he replaced 20.6 per cent of batteries under warranty, whereas his peers replaced only 3.9 per cent.

The employer maintained that its performance expectations were in line with industry standards, and that the technician consistently failed to meet KPIs for almost 22 months.

In May 2020, the technician was placed on a performance improvement plan, but once the plan ended in October of that year, he received a formal written letter noting that due to his “continued failure to meet expectations… his ongoing employment was at risk”.

The following August, the technician was issued a show cause letter noting that while there had been some improvement in the three identified areas, his performance remained below KPI standards.

The technician was dismissed a few months later and then took the matter to the Fair Work Commission.

While Deputy President Boyce noted that KPIs “might be an acceptable tool to measure general performance comparatively amongst [technicians]”, he said the technician’s underperformance did not justify his dismissal. Among other reasons, this was in large part because the KPIs set were deemed unfair measures of his performance and there was minimal guidance provided to help him achieve those KPIs.

The FWC ordered the employer to reinstate the employee to his previous role, stating that there is a “sufficient level of trust and confidence [that] can be restored between the parties to make their relationship viable and productive going forward”.

James True, Practice Group Leader at LegalVision, highlights the order for reinstatement as being “notable by its rareness”.

“It’s quite uncommon to see an order for reinstatement,” says True.

“But the employee in this case just wanted his job back to do the best he could for his customers. Although the employer said there’d been a breakdown in the relationship and it wouldn’t be appropriate that the employee comes back to the workplace, the FWC sided with the employee on that point and said it was possible to ultimately repair the relationship.”

The KPIs in question

A major factor weighing into the FWC’s decision was the absence of a document clearly outlining the technician’s KPIs, with specific information to support the employee in achieving those targets.

This could have included details about “how each KPI has been derived, what definitions are associated with the KPIs, how the KPIs are assessed, what variables are accepted as impacting upon KPIs, or how such variables are dealt with in terms [of] ultimate KPI outcomes”, said Boyce.

He also noted the performance improvement process was “neither a well-structured, nor assistive one” and that “no training or direction was given” to the technician.

True says the FWC’s finding is particularly interesting because an employer could typically be fairly confident in dismissing an employee where they have been set consistent KPIs, failed to meet those KPIs, been warned their employment is at risk, and been given an opportunity to improve.

“That would ordinarily be the building blocks for a very strong case for an employer, but I think this decision demonstrates how the detail in those KPIs and in the employer’s approach was lacking. That was the determining factor for unfair dismissal.” 

The FWC also found that many of the KPIs set by the employer were not reasonable or fair measures by which to assess the employee’s performance.

For example, Boyce noted how “average working time and time on job measures were a perverse incentive to not complete work properly or professionally”.

“If those jobs were complex or difficult, they should necessarily spend more time on them,” said Boyce.

Being able to achieve many of the KPIs set was also highly contingent upon factors outside the employee’s control.

“The KPIs rely on things like whether the battery is or isn’t under warranty and if the employee has to change it over. This isn’t necessarily something they can improve upon,” says True.

The technician argued that a fairer and more accurate KPI that he could’ve been judged against was ‘jobs per hour’, and True says it appeared as though “the employee was actually doing fairly well on that… There were other KPIs that could have been looked at instead of the ones used”.

Denied opportunity to respond

The show cause letter covered an asserted failure to meet KPIs in relation to the three improvement areas identified. But the employer failed to include allegations about the employee’s “assertedly poor attitude” and assertions that he was replacing allegedly sound batteries under warranty, the FWC found. The employer said these issues weighed into its decision to dismiss the technician.

This factored into the FWC’s decision because the employee could not have had the opportunity to respond to issues that were only raised after termination.

“The employer relied on the employee’s poor attitude as a basis to justify the termination. The fact that there were points omitted from the correspondence with the employee, including the final formal letter, the show cause letter and the termination letter, made it difficult for the employer to suggest that these were considerations they were relying on when they made the termination,” says True.

On the latter point, Boyce noted that “knowingly replacing batteries under warranty when they were not under warranty is plainly misconduct and was a matter that was never raised with [the technician] which he could have responded to”.

“That’s quite a serious issue, and one that should have been brought up with the employee at a much earlier point,” says True.

Setting KPIs

The issues in this case raise questions around how employers should set KPIs, and how best to communicate these to employees while giving them the opportunity to improve.

True highlights four key points for HR to keep in mind:

1. Communicate KPIs in writing: “Being short on detail hurts the employer because it makes it harder for the employee to know what’s required of them to achieve a reasonable level of performance.”
2. Make sure the KPIs are reasonable: “They need to genuinely reflect the performance that you’re trying to achieve from the employee.”
3. Cover all your bases: “There’s a lesson here to be thorough in your correspondence and make sure that you are comprehensively dealing with all the issues. There was some criticism from the Commission that major allegations about the employee’s attitude and behaviour were not flagged until after termination.”
4. Provide the opportunity to improve: “When you’re going to tell someone that their performance is not up to scratch, you need to identify what is required in order for them to approve.”
5. Be specific to help them improve: “You need to be really clear in what you’re asking of someone. If you’re vague and say something like, ‘You need to make the required improvements,’ then the employee can turn around and say, ‘I didn’t really know what you wanted from me.’ It’s hard for the performance issues to then be on the employee because it was never made clear what they needed to do to improve.”

Employers have a responsibility to not only set performance standards, but to provide guidance and support to help employees achieve them. This case shows the fall-out that can result if clear and detailed processes aren’t followed when setting performance improvement plans.

Managing an underperforming employee isn’t as simple as just putting them on a performance improvement plan. Get across your legal obligations through AHRI’s short course on Performance Management. Book in for the next course on 19 September.

The post Failing to reach KPIs did not justify dismissal, finds FWC  appeared first on HRM online.

When is a demotion a dismissal?

That is the essence of NSW Trains v James, which is currently before the Fair Work Commission (FWC).

This question is a significant one with wide-reaching implications, as made clear from the outset when the FWC engaged a full bench to determine the matter.

The case in question

The case deals with how section 386(1)(a) of the Fair Work Act 2009, which defines whether or not a person has been dismissed, should be construed. The case also deals with section 386(2)(c), which defines whether a person’s demotion constitutes a dismissal. 

The issue before the full bench was whether a 9.8 per cent cut in an employee’s salary constituted dismissal.

After the employee filed for unfair dismissal, the FWC initially found that a 9.8 per cent pay cut was not sufficient to constitute a dismissal. The employee, who represented himself at first instance, appealed.

During the appeal, the employee’s barrister, Yaseen Shariff SC, argued that the concept of a dismissal enlivened the employment relationship between an employer and employee, and was not confined to their contract.

Shariff SC posited: “If one said to the CEO of a publicly listed corporation,  ‘We’ve got one of these bells-and-whistles clauses, and we’re going to direct you to go from your $5 million salary plus bonuses to be a janitor on $50,000 a year,’ one might say, ‘Well, that’s entirely permissible within the scope of the contract.’ [But that might still] be an instance where there’s been a termination of the employment relationship.”

Implications for employers

While the above counterfactual was conceded to be “an extreme example”, if such an argument was accepted, it would follow that variations to employment which are within the scope of the parties’ contract could result in variations to the worker’s relationship with their employer.

An employee could have been ‘dismissed’, despite the employee continuing to perform work for, and be paid by, the employer.

Practically, if such arguments are accepted, an employee who has been ‘demoted’ may be able to access the FWC’s unfair dismissal regime. 

This could lead to the employee’s reinstatement, require an employer to pay compensation, or both.

Employment law is a constantly evolving subject. Make sure you’re up to speed with AHRI’s course, Introduction to HR Law. Book in for the next course running from 6 – 7 April.

What should employers do?

An express clause that contemplates particular scenarios and specific reductions may provide greater assistance than one which confers on an employer an unqualified power to change an employee’s duties.

Of course, the situation would be less risky if an employee agreed to the changes, or if the changes were for a defined, short period.

Given the potential ramifications of this case, employers should follow this case closely.

In the meantime, pending judgment, employers should proceed cautiously in effecting reductions to pay and duties, even if the employment contract or industrial instrument allows for it. 

This article first appeared in the March 2022 edition of HRM magazine. The advice in this article is general in nature. Legal advice should be sought for your specific circumstances.

Amy Zhang is the Executive Counsel and Team Leader and Justin Pen is a Solicitor, at Harmers Workplace Lawyers.

The post Could a demotion count as a dismissal? appeared first on HRM online.

Karen Gately, founder of HR consultancy Corporate Dojo, has seen a lot of interesting employee behaviour during her career. But if you asked her about the most mind-blowing thing a former employee has done, one particular story stands out because it involved a member of the HR team.

According to Garely, the organisation had been downsizing and this HR manager had been tasked with handling the redundancies. After making most of their colleagues redundant, the HR manager was blindsided when the organisation’s leaders turned around and made their position redundant too.

“The HR manager didn’t even remotely see that the organisation was intending to make them redundant at the end of that process,” says Gately.

On their way out, the employee emailed the entire organisation the spreadsheet containing information about the executive teams’ salaries.

“They definitely felt hurt, and is probably why they lashed out,” says Gately. “It was a very visible event that sent a shockwave through the whole organisation.”

The organisation went into crisis mode. When the HR manager made such a public display of their resentment, it meant that the issues within the HR department were suddenly on display for the entire organisation to see. There were also ongoing problems with executives feeling betrayed due to the exposure of confidential information, and employees began to reassess their own salary expectations.

Unfortunately, stories like this aren’t uncommon.

Rhonda Brighton-Hall, founder and director of HR consultancy mwah (Making Work Absolutely Human) has also seen her fair share of employee retaliation situations. Like Gately, there’s also a particular story that stands out from the pack.

“There was an employee who was really fantastic at what he did, but he had a falling out with his boss and lost his job. 

“When he left, he progressively started taking his team with him. He took five senior people over about three months. And then within 12 months, he took all their clients. It ruined the company.”

So, why do they do it?

Some people are just spiteful, says Brighton-Hall, but often the issues stem from either a lack of respect for employees or poor leadership skills.

Gately echoes this, saying many feel hurt or betrayed by their organisation.

“Retaliation will often happen when the employee feels blindsided. When they feel like, ‘I’ve put my heart and soul into this organisation and you don’t care,’” she says.

What can organisations do?

Gately and Brighton-Hall say there are five key areas employers should consider to avoid the possibility of an employee retaliating.

1. Train leaders in conflict resolution

Brighton-Hall believes this the best thing employers can do. 

“Take, for example, the employee who took the clients with them. If he’d had better leadership, and conflict resolution skills, that could have been avoided completely,” she says.

“He was good at his job and he was a nice guy. He just fell out with a manager and the company should have done a better job than letting that conflict drag out.”

All leaders should be taught these skills, says Brighton-Hall, and understand that it’s part of their job to handle conflict – not just brush it off to HR. 

Gately says by not addressing conflict or feelings of resentment from an employee, you’re creating a ticking time bomb that will go off when they leave. 

“If you actually deal with the problems, and you do it with respect and sensitivity, then employees are less likely to go off and try to find their own retribution,” she says.

This step is also important because dismissals don’t always happen in a vacuum, and other employees are likely to be impacted by it. This can take the form of survivor syndrome or resentment towards the decision-makers who terminated the employee.

“Leaders need to be able to handle the aftermath because there are always residual feelings when an employee is dismissed,” says Brighton-Hall. 

AHRI offers an online course in Conflict and Mediations. If you’re looking to train your whole team, check out the corporate in-house training packages.

2. Exit interviews

“Have a really good exit interview process, preferably an independent one, where the employee feels comfortable voicing their opinion,” says Brighton-Hall

“It’s hugely important when people are feeling disgruntled that they have an opportunity to say their piece.”

Most disgruntled employees feel that way for a reason. Not only is it beneficial for the organisation to get to the bottom of what’s going on (perhaps there is an management issue or poor team culture that you’re unaware of), it also makes the employee feel respected and therefore less likely to retaliate. Read HRM’s article on getting exit interviews right, here.

3. Ongoing support

When someone loses their job, they sometimes end up with two things in excess: time and anger. To combat this, Brighton-Hall recommends continuing support for them where possible after the dismissal.

“If you can, get them some counselling to manage their feelings. You can also think of practical ways to help them find a new job and even transition help like, ‘Here’s how to move your super over,’” she says.

This is important, she says, because not only are you showing the former employee you care, but you’re also demonstrating respect to your team.

“Your team knows this person. They might be close to them, so showing them that you did the right thing will combat any feelings of resentment that might build up in your [remaining] employees.”

“When he left, he progressively started taking his team with him. He took five senior people over about three months. And then within 12 months, he took all their clients. It ruined the company.” Rhonda Brighton-Hall, mwah

4. Implement legal protections

Employment contracts should include clauses to protect your organisation from information theft post-employment. 

The law already protects employers from employees exposing trade secrets, but adding specific clauses about what information can and can’t be used post-employment will add an additional layer of protection to your organisation.

Employers can also use a deed of release (sometimes called a deed of settlement) when parting ways with an employee. This can often stop former employees from taking legal action against your organisation, disparaging their former employer, or revealing any confidential information about the employer. 

A deed of release will also include a monetary settlement on top of any owed annual leave or unpaid wages. This settlement can put some employers off but, at the end of the day, this payment is likely to be cheaper than a lengthy court battle should the employee retaliate. 

Brighton-Hall is quick to point out, however, that a deed of release shouldn’t be used to sweep all issues under the carpet, and should be done in conjunction with the rest of the advice offered above. It’s also best to engage a legal professional when drafting a deed to ensure it’s fair and legally binding.

5. Block their access

“Employers should consider blocking the employee’s access to technology and work email accounts. Also, the employee’s personal email address should be blocked so they can’t contact current employees,” says Brighton-Hall.

Some mean-spirited employees can cause a lot of continued pain to your organisation and employees, she says. They might do this in an attempt to turn employees against certain leaders or say horrible things directly to them. 

This can have a considerable negative impact on employee morale and culture, says Brighton-Hall.

It really all comes back to making employees feel respected. 

“You’re trying to give them the best chance you can to move on in a good way,” says Brighton-Hall.

“And you’re not just doing it for the former employee, but you’re also showing your team that you care. Because they’re watching and thinking, ‘One day I’m going to leave and it’s good this is how my employer behaves.’”

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As businesses continue to struggle to survive, many may consider standing down employees. Businesses tackling this difficult decision must ensure the stand downs are in compliance with the provisions of the Fair Work Act. Those that breach the Act can face severe consequences. So when  can employers legally stand down employees and what are the alternatives?

The following content is based on information available at the time of publishing and is not a substitute legal advice.

What is a stand down?

Under the Fair Work Act 2009 (the FW Act) employers have the right to temporarily stand down employees without pay during a period in which the employees cannot be usefully employed. This can be because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. Other circumstances are industrial action and breakdown of machinery or equipment.

If a stand down is held by a Court or the Fair Work Commission to not meet the requirements of the FW Act, the employer will have an obligation to pay the employees who were invalidly stood down. Therefore, it is essential for employers to carefully consider whether the various requirements are met before proceeding to stand down any employees.

Four questions to consider

In the context of COVID-19, key questions to ask when considering stand downs include: 

1. Can the employees proposed to be stood down be ‘usefully employed’? The 2011 decision of the FWC in AMWU v McCain Foods is one of many decisions on this topic. There will be no right to stand down an employee if there is useful work available and it is within the terms of the employee’s contract of employment (it need not be work the employee normally carries out).
2. Has there been a ‘stoppage of work’ for the relevant employees, or just a significant slowdown? A stand down relates to circumstances where there is a stoppage of work for the relevant employees – not just a slowdown. 
3. Is the stoppage of work for a cause that ‘the employer cannot reasonably be held responsible’?
4. Will the stoppage of work be temporary? Stand downs are not able to continue for an excessive, indefinite period. 

Some enterprise agreements contain limitations on an employer’s right to stand down employees, so any relevant provisions in an applicable enterprise agreement need to be considered as well as the provisions of the FW Act.

Alternatives to standing down 

Before considering standing down employees, employers should consider a number of alternatives such as:

• Allowing employees to take paid annual or long service leave if they request this;
• Making use of new entitlements that have been included in 99 modern awards (and will operate until 30 June 2020) and reach agreement with employees to take twice as much annual leave for half the pay; 
• Redeployment in other areas of the business where they can perform the role;
• Reaching agreement with employees to implement shorter working hours arrangements or go on unpaid leave for a temporary period (an employer cannot generally direct an employee to reduce their hours – there must be agreement). 
• Are employees eligible for Government funding such as the JobKeeper Payment?
• If eligible for the JobKeeper payment, ‘JobKeeper enabling directions’ to vary certain terms of the employee’s employment, such as reducing their hours of work, duties and location of work are an option.

 Where do I find more information? 

Ai Group is offering the following services and information to your business:

• Access to experienced Industrial Relations advisers on our COVID-19 IR Advice Line: 1300 312 733
• Access to COVID-19 IR Advices on Ai Group’s website and the ability to sign up to alerts
• Access to Online Employer IR Webinars, Podcasts and Industry Sector Meetings which allow you to engage with Ai Group’s IR experts and industry peers live during the sessions. Webinars and podcasts can be accessed on-demand later to review with the team.

Click here to take advantage of Ai Group’s offer now.

The post Standing down employees: a legal guide appeared first on HRM online.

The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. In this practical guide, we’ll take a look at the differences between a support person and a union representative, and share tips on complying with your legal obligations. 

You must allow a support person where reasonable

When considering whether an employee was unfairly dismissed, the Fair Work Commission will look at whether the employer unreasonably refused to allow a support person to assist in any discussions relating to an employee’s potential dismissal. 

Employers should never refuse the presence of a support person, except in rare circumstances where it would be reasonable to do so, for example, if allowing the support person to attend would mean rescheduling the meeting at the last minute. You should also ask the employee if they’d like to nominate a support person to attend their meeting with at least 24 hours’ notice.

A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). Their role is generally to provide emotional support, take notes and clarify questions. Their role is not to speak on behalf of, or advocate for the employee. 

The importance of clarifying the union official’s role

If the employee brings a union official to the meeting, it’s important to establish whether their intended role is as a support person or as the employee’s union representative. You should clarify this before the meeting begins. 

If a union official is acting as a support person and then starts to act more like a union representative during the meeting, you should consider pausing the meeting to remind them of their role, and record this in your notes.

Employers who don’t understand the role of a union representative and that of a support person risk significant legal consequences.

This is best illustrated by the case of Vong v Sika. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. The union official refused to sign, and stated that he was there to act as Vong’s union representative. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. The same thing occurred at the next two meetings. 

At the third meeting, the HR manager left the room and returned with a notice of dismissal. Vong argued that he had been unfairly dismissed because he was a union member. Vong’s claim was successful, on the basis that his employer effectively forced him to relinquish his right, as a union member, to be represented by the union. 

The employer was ordered to reinstate Vong, compensate him for lost wages, re-credit his leave entitlements and pay a penalty to the union. 

This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. 

What employers can’t do

It’s illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against an employee because they sought union representation. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes.

In practice, this means if even a fraction of the reason an employer took adverse action against an employee was because the employee wanted union representation, that employer can be hit with a general protections claim in the Fair Work Commission. 

This doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. Rather, an employer must be able to demonstrate that when the decision to take adverse action was made, the employee’s desire to be represented by their union was not a reason for that decision.

For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. These reasons should be communicated to the employee as distinct and separate conversations from any discussions about union representation.

Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards or if you’re not sure about the role of a union official in disciplinary meetings.

Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox.

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It takes years to build a career and just moments to end it. Employees that take to public platforms to express themselves can often find themselves in breach of their contract and out of a job. Sometimes immediate termination is warranted, other times it’s not so black and white.

When political views and professional obligations collide

Angela Williamson, former Tasmanian government relationship manager for Cricket Australia (CA), has filed legal action with the Federal Court claiming her dismissal in June amounted to adverse action. The dismissal followed tweets she sent criticising the Tasmanian Liberal Government’s abortion policies.

The tweets, which CA labelled “offensive”, were in relation to a decision made by the Tasmanian government rejecting a motion to provide abortion services in state public hospitals. In response, Williamson tweeted that the decision was the “most irresponsible, gutless & reckless delivery in parly ever #politas”.

According to reports, Williamson was fuelled by her own experiences of having to travel to the mainland to undergo an abortion herself; she was forced to take time off work and spend thousands of dollars.

In another tweet, she stated that after sharing her own story, “hoping it convinces the gov to act urgently”, she heard “NOTHING” from the Premier, according to her official termination letter.

In an interview with SMH, Williamson says “I was told the tweet had damaged my relationship with government.

“I’m not seeking pity. And I’m not going to be quiet about reproductive health and surgical terminations. Bottom line? I should not have had to lose my job to deliver the change. Abortion is legal in Tasmania. But that system is broken and it made me feel ashamed,” she says.

Apparently it’s not personal, it’s professional

CA disputes the allegations and strongly maintain the reason behind Williamson’s dismissal was because she “neglected key requirements of her role as Government Relations Manager to facilitate a strong relationship with the Tasmanian Government.” So according to CA’s reasoning, if she had spoken out against a ruling that the NSW government had made its likely her job would have been safe. But is that fair?

Aaron Goonrey, partner at Landers and Rogers, says that it may be difficult to separate Williamson’s personal political views (expressed on Twitter) from those of CA, considering that CA have outlined that one of her main employment obligations was to maintain a “positive and productive relationship” with the Tasmanian Government.

“A third party, and indeed the Tasmanian Government, may regard Ms Williamson’s views as being connected with those of her employer. With that said, the Tasmanian Health Minister, Michael Ferguson, has commented that Ms Williamson’s tweets were not an attack on him by Cricket Australia, and that anyone reading the tweet would see that Ms Williamson’s comments were personal. However, Mr Ferguson’s view may not be that of the Tasmanian Government,” says Goonrey.

CA says her termination was “not because of her personal views, free speech, political speech or government interference”.

“Angela’s statement of claim is her version of events, a version we dispute. We refute any suggestion of any government interference in Angela’s dismissal”.

According to another statement from CA, Williamson had been in discussion with Cricket Australia’s CEO James Sutherland and was offered the chance to return in the role of communications manager, community cricket, which she declined.

“I should not have had to lose my job to deliver the change.”

When do you have the right to express yourself?

Williamson’s case is not unique. Former Department of Immigration and Citizenship employee, Michaela Baneriji, is due to have her dismissal case heard by the High Court following tweets that she sent that were “highly critical” about Australia’s treatment of asylum seekers. Her forum of choice was also Twitter.

“The Fair Work Act 2009 (Cth) (Act) prohibits employers from discriminating against employees because of their political opinion,” says Goonrey.

“However, the Act also provides that where it is found that the action was taken because of the inherent requirements of the particular position concerned, then it will not be a breach of the applicable unlawful discrimination provisions, such as political opinion.”

Goonrey says an employer is allowed to deem an employee’s views as being inappropriate if they’re “unauthorised and inconsistent” with the employee’s role or the organisation’s values.

“This is particularly the case where the public can scrutinise an employee’s comments and then form an adverse impression of the organisation that the employee works at.”

Williamson’s lawyer, Kamal Farouque of Maurice Blackburn, has said Williamson’s dismissal was unlawful and that she “spoke out about abortion rights because she believes strongly in the reproductive health rights of Tasmanian women”.

Williamson’s first court hearing is scheduled for the 17th of September, where she will be seeking compensation for loss of income, distress and damage to reputation. CA has said “in the absence of being able to agree a resolution with Angela, we will continue to follow the legal process she has initiated”.

The post Can you express political views without professional ramifications? appeared first on HRM online.

If an employee behaves in an unprofessional manner an employer might want to fire them on-the-spot but it’s not always as clear cut as you might think.

Keen to avoid an unfair dismissal claim, some companies might opt for the educational route, as was seen with the recent Starbucks mass cultural-bias training. Then there are circumstances where immediate termination seems like the most appropriate action, especially when inappropriate behaviour is broadcasted live for thousands to hear, as Triple M decided last week.

Barry Hall, a former football player (and now former Triple M commentator), was taken off the air on Friday following inappropriate sexual comments regarding one of his fellow panelists’ wife.

Triple M’s Head of Content, Mike Fitzpatrick, described the comments as “unacceptable and inappropriate” and reported that Hall had been immediately terminated and an on-air apology was promptly issued. While this is the standard of response we’ve come to expect when celebrities are behaving badly, it doesn’t correlate with how we’d handle a similar scenario in ‘the real world’.

Public actions have public consequences

As we have previously reported, it’s not easy to fire an employee on the spot. Aaron Goonrey, Partner at Lander and Rogers, says that Hall’s circumstance is unusual in that it was publicly broadcasted. He likened it to an employee saying/doing something inappropriate on social media.

“Other than in those unusual scenarios, you shouldn’t terminate an employee summarily without investigating the conduct. If you’re contemplating summary dismissal, I would always recommend following a due process. Investigate the complaint, arm yourself with the facts and evidence, put that to the alleged offender and then consider their response before making a decision,” he says.

“Hall may have had provisions in his contract that said he couldn’t enter into discussion around vulgar, crude content – the good fame and character provision – which would make on the spot dismissal much easier.”

Goonrey says that even though an employer might consider certain behaviour as grounds to fire on the spot, the law doesn’t normally allow for such immediate decisions to be made. “It’s not always easy to determine if an employee’s actions actually constitute ‘serious misconduct’ in the eyes of the law.

“In the end, each instance of misconduct has to be considered on a case by case basis, and it should not be assumed that a finding of serious misconduct will be made. As tempting as it might be to shortcut the dismissal process, it can ultimately lead to more time and money being expended if the dismissal is litigated,” Goonrey says.

It’s easier to fire on-the-spot when you’re in the spotlight

Considering this particular offence occurred in such a public arena, Triple M might have seen the repercussions against them as minimal. The public outrage surrounding the issue seemingly helps to justify their choice to give Hall the boot there and then. Taking the brand reputation angle, instead of worrying too much about legal ramifications, is a luxury that most employers don’t have.

Goonrey explains, “An employer can terminate someone instantaneously but that will have legal ramifications for them. If an employer has no choice but to take decisive and prompt action then the concept of natural justice and procedural fairness may not come into play during the decision making process.”

When companies who are in the spotlight face a PR nightmare such as Hall’s offensive commentary, they are forced to act quickly or risk tarnishing their brand’s reputation for good. Companies outside of the limelight may have more time to put a plan in place but when push comes to shove, they just might find it harder to rid themselves of a troublesome employee. But who knows? If an employee is problematic enough, perhaps employers can just give them a microphone to broadcast their opinions, and see what happens.

What do you think? Let us know in the comments section.

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