EBA Approval scrutinised by Full Bench

OneSteel Recycling Pty Limited T/A OneSteel Recycling (C2014/6309) [2014] FWCFB 7560, JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT; SENIOR DEPUTY PRESIDENT DRAKE; COMMISSIONER MCKENNA

This was an appeal against decision the approval of an enterprise agreement on the basis of whether the group of employees covered by the agreement was fairly chosen.

 

The reason for the appeal was whether the group of employees to be covered by the Agreement was fairly chosen having regard to the Act.

 

“In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others, the Full Bench (in that matter) stated:

“Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.”

 

Commentary

 

It is most important (as with all things FWC) that the step-by-step approach is taken to the negotiation of the EBA. More information on this can be found at the FWC’s web-site or by contacting me.

In yet another attack at HR personnel that follow the orders of their bosses, the FWO has put out a press release “warning” all HR managers that they are in its sights.

 

The case in question is Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 and is a federal court decision which is over 100 pages long.

 

The case involved a Chinese restaurant chain that systematically underpaid its workers and falsified records. When the FWO became involved the company knowing that the “jig was up”,went on a deliberate mission to falsify its employment records. The company and four of its employees were found to have breached the various sections of the FWA by underpaying its 85 employees $583,688.68 during the period from 6 July 2013 to 20 November 2014.

 

Fines of almost $400,000 were imposed: the company was fined $301,920, the owner $54,672, the HR Manager $21,760 and the store manager $18,496. With the judge relying on case law, noting:

 

“It is sufficient to say that, accepting that the primary purpose of imposing a pecuniary penalty is to protect and deter, that purpose is achieved by imposing a punishment in the form of a pecuniary penalty”.

 

Overall, the pretty good day at the office for FWO. However, the FWO “went after” the HR Manager very harshly, seeking significant penalties against her.

 

Fundamentally, the HR Manager was a Chinese national (now an Australian citizen) and claimed to be doing what she was told. As the decision noted:

 

  • Her parents and Mr Chen’s (the owner) parents-in-law were friends, and that she had been offered the role of human resources manager due to that family connection.
  • The owner had offered and agreed for to take over the sponsorship of her 457 visa.
  • She was obedient to Mr Chen because he was her boss, and that defiance of the boss by a junior employee is not tolerated in the Chinese culture in which she was raised.
  • She suggested that it would bring shame on her family if she was disrespectful to Mr Chen.
  • She said that she was mindful that her residential visa status was dependent on her continuing employment with NSH Restaurant Pty Limited.

However, the Judge was having none of this, citing Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30, and drawing from this decision stating:

 

“The cultural and related factors relied upon by Ms Sarah Zhu cut both ways. While they might be seen to reduce, to some limited extent, her moral culpability, they also indicate that the need for specific deterrence is heightened…Balancing those factors produces little advantage either way. As a matter of evidence, the cultural factors were less than compelling and did not properly explain the duration of the contraventions. As a matter of public policy, the cultural explanation for the contraventions can only be given limited weight.

 

The Judge further added:

 

“Before her role in the business of New Shanghai Charlestown, Ms Sarah Zhu completed a university degree and was employed by PricewaterhouseCoopers in China   Despite this, and despite being employed on a significant wage, she asserted that she had no qualifications or formal training in human resources management. It is plain, however, that she had sufficient training or capacity to carry out the directions given to her in her role, including the creation of false records.” [Emphasis added].

 

In my humble opinion, if you undertake HR duties, you should be “on notice” as the FWO argued and was confirmed by the Judge that

 

“There is nothing wrong with sending the message that an employee should indeed resign if that is the only alternative to continuing to participate knowingly in illegal activity, ideally coupled with reporting the conduct, in a case such as this, to the FWO. That would rob a primary offender such New Shanghai Charlestown and its guiding mind, Mr Chen, of the means of having such conduct continue except by, in this case, Mr Chen’s own hand.” [Emphasis added].

 

Commentary

 

Whilst there would appear little doubt that the company acted in an underhanded manner, motivated – no doubt – by greed, the position of HR Manager (whether qualified or not) is going to pay for the sins of their boss. In a job market where there are literally hundreds of applicants for each advertised HR position, and the economic realities of having to earn a living to survive, I am conflicted on the focus of the HR profession. (Having said this, I did resign from an unscrupulous employer some years ago).

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

 

The casualisation of the Australian workforce is nothing new. It has been increasing in popularity along with labour-hire agencies, as employer are becoming more and more wary of employment litigation.

 

I have written previously that “temporary” or fixed” term contracts are quite permissible, insofar as they have a distinct commencement and end date. Or alternately, if they are “project based”, the project is clearly defined (in writing). In any event such contract cannot contain a termination clause, as the courts have ruled to do so nullifies the purpose of the employment.

 

Lawyers have tried to circumvent the limitations of temporary employment by introducing the concept of “maximum term of employment” (ie a “temporary contract with the ability to reduce the end date). This offers little to no protection under unfair dismissal law.

 

“Permanent” or “ongoing” employment would appear to be the holy grail of employment these days. And whilst “permanent casual” employment exists, it does not protect an employer from unfair dismissals.

 

In fact, it does not matter what form of employment an employer may choose, there is no protection against claims of WorkCover, discrimination or “adverse actions”.

 

“Whilst I am most likely preaching to the converted, all employers should ensure that they have rigorous contracts of employment and polices, codes of conduct and employee handbooks in place. Guess what? I can help – believe me, it is an investment”.

Focus on Casual employment

In Robert Smith v Goldfields People Hire Pty Ltd ATF Goldfields People Hire Trust T/A GPH Recruitment. (U2017/10373). McKinnon, C. 14 December 2017, the respondent failed to prove its case that the applicant was:

 

  • Mr Smith was a casual employee, and had no reasonable expectation of continuing employment;
  • In the alternative, Mr Smith was employed for discrete specified tasks, in each case shorter than the minimum employment period (six months); and
  • In the alternative, Mr Smith was employed for a specified task which came to an end, and there was no termination at the initiative of the employer.

 

Mr Smith was place with the “host” employer by a labour-hire firm, which appeared to have all bases covered – contractually. However, in this matter, it was not contested that the “host” employer was the legal entity for which Mr Smith was employed (despite the decision constantly referring to the labour-hire employment provisions).

 

Mr Smith was employed in various roles and was placed on a roster of work. His employment period was 1 November 2016 to 7 September 2017 (ie over six months).

 

So, let’s pause: the “host” was the employer therefore (although not mentioned in the decision) presumably Mr Smith was paid though the “host’s” payroll, Mr Smith was placed on a roster (regular and systematic) and, if the work was available, Mr Smith has an expectation of ongoing employment.

 

So, in relation to the first option, the Commissioner found:

 

“….I am satisfied that during his period of service as a casual employee, Mr Smith was employed on a regular and systematic basis and that he had an expectation that his employment by Goldfields would continue on a regular and systematic basis. In my view, this expectation was reasonable in the circumstances”.

However, in coming to this conclusion, the Commissioner made a couple of interesting statements:

 

“It is clear that Mr Smith acknowledged his status as a casual employee when he sought employment with Goldfields by completing the Registration Pack, and that he held that understanding for the duration of his service. The fact that he knew and accepted his status as a casual employee does not, of itself, mean he could never hold an expectation of continuing employment by Goldfields. An expectation of continuing employment is not the same as an expectation of permanent employment. Similarly, the fact that Mr Smith knew he was working “on assignment” to Bis does not mean he could never have expected his employment by Goldfields to continue (with or without that assignment)”.

 

And in dismissing the “specified task” argument, the Commissioner found:

 

“The meaning of the phrase “contract of employment for a specified task”, was considered by the Full Bench in Dale v Hatch Pty Ltd. It requires that the specified task be identified in definite terms, either through express words in a written contract of employment, or as a matter of necessary implication. To be a contract of employment for a specified task, the contract must be “for” the specified task in the sense of having been entered into for the purpose of performing and completing that task. Critically, it must be sufficiently clear and predictable as to when the task will be completed”.

 

With the jurisdictional decision failing, the respondent will now have to (in practical terms) prove that Mr Smith was no unfairly dismissed. I suspect it will be “settled”.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

rs Rina Centofanti v Transfield Services T/A Light City Buses. [2018] FWC 755 (U2013/9080), Anderson, DP. 6 February 2018

 

The most interesting part of this FWC decision is the DP’s references to the Unfair Dismissal provisions and a High court decision going back to 1954 relating to contract law.

 

In this matter, the FWC was required to decide whether the matter should be thrown out or dealt with in accordance with the unfair dismissal provisions of the Fair Work Act.

 

But the overall message is to ensure that a well written and binding settlement agreement is reached (ie the “go away” money is paid promptly), so that the matter is indeed “settled” and everybody can go away equally unhappy to get on with their collective lives.

 

Background

 

The Applicant, a bus driver, was dismissal following an incident on 17 April 2013 involving the striking of another road user on a public road. The employer in its response lodged in 2013 said that the incident was investigated at the time and the dismissal supported by CCTV footage. The Applicant was represented by her union, the TWU.

 

The matter was “settled” at Conciliation for $10,000.00, however no action was taken to pursue the monies, (presumably) the employer reluctant to do so because there has been no notice of discontinuance filed to the FWC by the TWU – as put to the parties at the time by the FWC.

 

Why so long?

 

According to the applicant, she was given the run around by the union, work commitments, family commitments, moving interstate, “a court case about my ex”, “my injury and my case taking nearly 4 years” and certain other personal and health issues.

 

No doubt the death of the TWU representative was a factor.

 

The “settlement” agreement

 

The DP considered the form of settlement agreement:

 

“It is evidence that a settlement agreement had been reached at that conference. The notation on the Commission’s electronic case history to the effect “no cooling off period settlement email sent” is an indication that a cooling off period was not applicable to the settlement made before Conciliator Cashen. The conciliator’s letter is evidence that the agreement was to be reduced to writing between the parties, and that the responsibility for doing so and giving effect to the terms of settlement would be a matter for the parties. There is no evidence that the agreement was conditional in the sense of being ‘subject to agreement’, or further consideration or re-consideration or subject to further negotiation; rather the evidence is that an agreement itself was reached and that agreement included a mutual intent to record its terms in writing.

“The submission to me by the TWU on the applicant’s behalf says:

  • The Application was subject to a conciliation by consent and it is the Applicants understanding that the matter was resolved by way of an agreed monetary settlement.
  • However, no written Deed/Terms of Settlement was executed by either party and the matter was not formally discontinued.”

“The question of whether there was or was not a binding settlement agreement is a question of fact, informed by legal principles. On the basis of the material before me, I am satisfied on the balance of probabilities that a binding and operative settlement agreement had been reached on 30 May 2013 between the parties at the telephone conciliation conference before Conciliator Cashen, and I make that finding.

 

“I further find that Conciliator Cashen forwarded documentation to the parties to record and sign the terms of their settlement agreement and in doing so indicated that the Commission would have no further role in the matter and did not require the written settlement agreement to be relayed back to the Commission”.

 

The DP then noted that no party had pursued the matter in the intervening time, finding:

 

“…the settlement agreement was not expressed to be ‘subject to contract’ or an expression of similar import such as to create an overriding condition to the effect that what was agreed was the intended basis of a future contract, rather than constituting a contract of itself.

 

“The fact that a binding and operative settlement agreement was reached between the parties [including the TWU] is a factor that weighs strongly against the matter being relisted”.

 

And in citing the 1954 High court decision, the DP added:

 

I further find that the settlement agreement was not expressed to be ‘subject to contract’ or an expression of similar import such as to create an overriding condition to the effect that what was agreed was the intended basis of a future contract, rather than constituting a contract of itself”.

 

Frivolous vexatious, no reasonable prospects of success

 

The DP examined his powers under the “the statutory scheme”:

 

The power to dismiss a matter is provided for in section 587 of the FW Act:

 

“587 Dismissing applications

 

Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

 

  • the application is not made in accordance with this Act; or
  • the application is frivolous or vexatious; or
  • the application has no reasonable prospects of success.

 

The FWC may dismiss an application:

  • on its own initiative; or
  • on application.”

 

The DP stating:

 

“Whether Mrs Centofanti’s application should be relisted or alternatively dismissed is a discretionary matter. It is a discretion to be exercised objectively and according to judicial principles. [My emphasis]. In considering whether to relist the matter or alternatively dismiss the matter, an appropriate starting point is the Commission’s general obligations expressed in section 577 and 578 of the FW Act:

 

“577 Performance of functions etc. by the FWC

 

The FWC must perform its functions and exercise its powers in a manner that:

 

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.”

“578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

 

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

The DP gave considerable thought to his duties under the FWA:

 

“I have regard to these general duties and apply them in the context of the following matters I consider of particular relevance to determining this matter:

  • The unfair dismissal statutory scheme;
  • The history of the matter (including the conduct of the parties);
  • The length of the delay;
  • The reason for the delay;
  • Prejudice (if any) should the matter be relisted or dismissed; and
  • Relevant authorities on the operation of sections 587 and 589.

 

The unfair dismissal statutory scheme

 

According to the DP, the statutory scheme establishes a framework that does not exclusively focus on a dismissed employee. The framework seeks to balance “the needs of business” and “the needs of employees”. It has the further object of providing procedures that are “quick, flexible and informal” It provides remedies with an emphasis on reinstatement. It requires applications to be made within a short time period after dismissal (21 days), with an extension of time only in exceptional circumstances. Compensation orders for an unfair dismissal can only be made if reinstatement is inappropriate and even then, only at the discretion of the Commission.

 

This statutory framework places emphasis on accessing the jurisdiction and having matters determined in relative close proximity to the date a dismissal takes effect. There are clear policy reasons for doing so. The primary remedy (reinstatement) is less viable the longer a dismissed employee has been absent from the workplace. An employer’s business is not a static concern. A dismissed employee needs to know of their rights and get on with their life, one way or the other, within a reasonable period after dismissal.

 

The FW Act’s statutory scheme also places emphasis on conciliation and settlement between the parties as a precursor to Commission arbitration.

 

Prejudice (if any) should the matter be relisted or dismissed

 

The DP considered prejudice in three contexts:

  • Prejudice to the applicant;
  • Prejudice to the respondent; and
  • Prejudice to the administration of justice.

 

Finding:

 

“I accept that the effluxion of a very substantial period of time since the incident of 17 April 2013 took place would create substantial prejudice to the employer in its defence of this matter. Further, although the employer is a large business this fact alone does not mitigate the prejudice. The prejudice to the employer in its defence of the claim that would be likely to arise is a factor that weighs against it being relisted.

 

“I also take into account the impact on the administration of justice and in particular the Commission’s obligations to determine matters in a fair and just manner according to law. Proceedings of this nature require the taking of evidence, findings as to credit of witnesses, the application of facts (as found) to the law and the capacity to provide timely and meaningful remedies that are appropriate to the circumstances.

 

“There is a high likelihood that after such an extraordinary effluxion of time it would be difficult if not impossible to access relevant witnesses, to secure a reliable recall from those witnesses and to access or reliably rely on documentary or CCTV material relevant to the case. Compromising proceedings in this manner would, if those proceedings were to occur, compromise the administration of justice. Moreover, the TWU submissions filed on behalf of the applicant indicate that the TWU’s files on the matter (including the settlement agreement) are “scarce”. They also indicate that “the TWU organiser who had assisted the Applicant died in or about November 2015”.

 

In bringing the matter to its (logical) conclusion, the DP stated:

 

“If the matter is not relisted, the Commission file will remain closed and the matter not proceed. However, in circumstances where a Notice of Discontinuance has not been filed by the applicant and the matter not otherwise dismissed or disposed of, the prospect remains that a request of the type before me could again be made. This is to be avoided. The Commission rules, and the proper administration of matters before the Commission, require matters to be disposed of to finality, either by determination or discontinuance. Where settlement occurs, the Commission rightly expects parties to file notices of discontinuance. [My emphasis]. This has not occurred in this case despite the applicant being advised at the outset of these proceedings that it was the parties’ obligation to advise the Commission and discontinue proceedings if agreement was reached (as I have found it was).

 

Further adding:

 

“The decision of a Full Bench of the Commission in Curtis v Darwin City Council is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed. That decision gave effect to well-established authority set out by the Federal Court in Australian Postal Corporation v Gorman.

 

“I have made findings that a settlement agreement was made on 30 May 2013, that it was not subject to a cooling-off period and that it was not conditional or subject to a written agreement. I have found that it was a binding and operative agreement in its own right which was intended to be reduced to writing. As such, it formed an agreement that…it was a binding contract”.

 

Conclusion and commentary

Whilst an excellent, well researched decision by a relatively new member of the FWC (going to some 21 pages), without saying so directly concluded that the matter should be better pursued via civil remedies.

 

“I take into account the assertion by Mrs Centofanti supported by the TWU submission that the 2013 settlement agreement has not been given effect to. If that is so, it has been open to Mrs Centofanti over this period to exercise her rights to enforce such an agreement. As the Federal Court said in Australian Postal Corporation v Gorman ‘any action to enforce the contract may need to be taken in another jurisdiction and that is almost certainly so. However, that circumstance is not a reason to conclude that FWA cannot recognise a binding settlement agreement.’”

 

And putting a full-stop on the matter the DP found:

 

“It is in the interests of justice that these proceedings be brought to a finality.

 

“…that the extreme delay would render further proceedings before the Commission unsafe.

 

“I draw to the attention of Broadspectrum my finding that a binding and operative settlement agreement was reached on 30 May 2013. I draw to the attention of Mrs Centofanti and her advisers the legal right a party to a contract has to seek the enforcement of binding agreements should it be the case that the terms of an agreement have not been given effect to”. [My translation: mate, you made a deal, pay up].

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

Application for an equal remuneration order by United Voice and the Australian Education Union [2018] FWCFB 177 (C2013/5139), Hatcher, VP, Dean, DP, Saunders, C. 6 February 2018

 

In what turned out to be an interesting history lesson on “work value”, the FB in this matter rejected the unions’ argument that employees covered by a number of awards, including the Children’s Services Award 2010 be remunerated the same as levels C10 and C5 in the Manufacturing Award 2010. The unions main argument being the level of qualification required by each group of workers.

 

The main points were that ultimately the unions failed to provide – via substantiated evidence – that there was any gender disparity. In particular:

 

  • The unions had run its case in 2005 but had not provided any further substantial evidence of any change some 13 years later.
  • Whilst “Work Choices” stalled matters, the FB found that the unions had ample opportunity under the Modern Award process to push their agenda.
  • Rejected the Manufacturing Award as a relevant comparator, commenting on a 2015 FB decision (C2013/5139 and C2013/6333), which stated:

 

“The ‘comparative exercise’ which is required as a jurisdictional prerequisite to the making of an equal remuneration order…to be carried out between the group of employees to be covered by the proposed order and an identified comparator group has three elements:

 

(1) the two groups must perform work of equal or comparable value;

(2) they must be of the opposite gender; and

(3) they must be unequally remunerated.”

 

The FB also declared the distinction between what they described as “work value” matter and an application for an equal remuneration order; stating that the unions claim fell more into the former than the latter:

 

“The pay equity cases which have been successfully prosecuted in the NSW and Queensland jurisdictions and to which reference has earlier been made were essentially work value cases, and the equal remuneration principles under which they were considered and determined were likewise, in substance, extensions of well-established work value principles. It seems to us that cases of this nature can readily be accommodated under s.156(3) or s.157(2). Whether or not such a case is successful will, of course, depend on the evidence and submissions in the particular proceeding.”

 

History buffs read on

 

“The 1968 Vehicle Industry Award decision of Senior Commissioner Taylor…was a seminal authority as to the considerations relevant to the proper assessment of work value (albeit in a manufacturing context). The Senior Commissioner identified the relevant considerations as being:

 

  1. The qualifications necessary for the job;
  2. The training period required;
  3. Attributes required for the performance of the work;
  4. Responsibility for the work, material and equipment and for the safety of the plant and other employees;
  5. Conditions under which the work is performed such as heat, cold, dirt, wetness, noise, necessity to wear protective equipment etc;
  6. Quality of work attributable to, and required of, the employee;
  7. Versatility and adaptability (e.g. to perform a multiplicity of functions);
  8. Skill exercised;
  9. Acquired knowledge of processes and of plant;
  10. Supervision over others or necessity to work without supervision; and
  11. Importance of work to the overall operations of plant.

 

The development of formal and binding wage-fixing principles in the 1980’s resulted in a codification of the process for the assessment of work value in the Work Value Changes principle…the Work Value Changes principle was as stated in the Safety Net Review – Wages – May 2004. Paragraph (a) of the principle stated the critical considerations as follows:

 

“Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.

 

In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classifications to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position.

 

These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this Principle.”

 

“In the FW Act [2009], modern award minimum wages may be varied in or outside of a 4-yearly review…if the Commission is satisfied that this is justified by “work value reasons”. That expression is defined…as follows:

 

“Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

 

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

(c) the conditions under which the work is done”.

 

Commentary

 

It would appear following this decision that unions will have a hard time proving equal remuneration cases unless they are (much) better prepared. As mentioned in this decision (I paraphrase), the comparator needs to be relevant and one that clearly sets out females are being paid less than their male counterparts for doing the same work.

 

A trip through remuneration history would not be complete without mention of the “Basic Wage” set by the Sunshine Harvest decision.

The Harvester wage was sometimes referred to as the ‘living wage’ or ‘family wage’ because the method of fixing it was an attempt at assessing the ‘cost of living’ of a labouring family. Justice Higgins used a family of a husband, wife, and three children for these purposes.

An annual national wage review now forms part of the Fair Act 2009 (the “Act”).

Ex parte H.V. McKay [1907], commonly referred to as the Harvester case, is a landmark Australian labour law decision of the Commonwealth Court of Conciliation and Arbitration. The case arose under the Excise Tariff Act 1906 which contained a proviso that excise would not be payable on products if a manufacturer paid “fair and reasonable” wages to its employees. The Court therefore had to consider what was a “fair and reasonable” wage for the purpose of the proviso.

H.B. Higgins declared that “fair and reasonable” wages for an unskilled male worker required a living wage that was sufficient for “a human being in a civilised community” to support a wife and three children in “frugal comfort”, while a skilled worker should receive an additional margin for their skills, regardless of the employer’s capacity to pay.

While the High Court of Australia in 1908 held that the Excise Tariff Act 1906 was invalid, the judgment nevertheless continued to be the basis for the minimum wage system that extended to half of the Australian workforce in less than 20 years. The decision was credited as the foundation for the national minimum wage included in the Fair Work Act 2009. Source: Wikipedia.

The factory, which produced the Sunshine Harvester, was in the Melbourne suburb of Sunshine. It is now a shopping complex. Perhaps an allegory for the demise of Australian manufacturing.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

Late last year the Full bench of the FWC as part of its 2014 Modern Award Review (noting 2018 is the next review in the four-year cycle) issued a Statement relating to the “Abandonment of Employment” see [2017 FWCFB 4250]. The FB having leapt into action following a FB decision Mr Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (C2016/6606).

 

By way of comment, the Modern Award process has now identified some six awards that define abandonment of employment in terms of the number of days the employee has been absent, totally ignoring the Fair Work Act’s termination of employment requirements. As the Act “overrides” the Awards, it could be argued that the Awards therefore are moot on this issue; and therefore, the Award Modernisation process has merely set forth to fix this issue and has called for submission from employer and employee parties. The FB agreed with this sentiment, but for different reasons.

 

It is disappointing that this decision does not provide any guidance on how to deal with unauthorised absences, I believe the process adopted by Iplex comes close to perfect.

 

The “Implex” FB decision, dated 13 January 2017, resulted from an Appeal against decision [2016] FWC 6624 of Senior Deputy President O’Callaghan at Adelaide on 17 October 2016 in matter number U2016/3008.

 

In the original Decision, Senior Deputy President O’Callaghan the termination of Mr Bienias’ employment had not occurred on Iplex’s initiative.

 

By way of background, Mr Bienias had been employed by Iplex since December 1983, and from 1992 he was employed as a Team Leader, and that he was covered by the Manufacturing and Associated Industries Occupations Award 2010 (Award) and the Award applied.

 

Mr Bienias had a clean record of employment until 2015, after which time he was given a written warning for failing to comply with the required quality standards and on 21 December 2015 was stood down following a positive alcohol test reading while at work. This also resulted in a written warning.

 

Mr Bienias was absent from work for his rostered shifts on 19, 20, 21 and 22 January 2016. Iplex met with Mr Bienias 28 January 2016 to discuss the absences. During this meeting Mr Bienias was advised that he was required to call his supervisor in the case of future absences prior to the commencement of his rostered shift. Mr Bienias was absent from work on 7 March 2016. He did not notify his supervisor of that absence because it was a public holiday. On 10 March 2016, Mr Bienias was given a written warning relating to his absenteeism and failure to comply with notification requirements.

 

The process (all good, so far)

 

Mr Bienias did not attend work on 2 and 3 May 2016, not advising his supervisor until 3 May 2016, that he could not attend for work because he was ill. On his return to work 4 May 2016, Mr Bienias attended work and was stood down with pay pending investigation of this absence. A further meeting provided Mr Bienias the opportunity to respond to issues relating to his absences and a quality assurance issue. Hoe was also provided the opportunity to attend the meeting with a support person (which he did), with Iplex having three representatives present.

 

The meeting concluded on the basis that Iplex would consider Mr Bienias’ responses and there would be a further meeting on the following day, upon which Mr Bienias was advised that he would be issued with a final written warning and would be placed on a performance improvement plan. A warning letter was subsequently prepared but not given to Mr Bienias as the meeting on 11 May 2016 was the last occasion on which Iplex had seen or spoken with Mr Bienias.

 

No further attendance

 

Mr Bienias did not attend work at Iplex again. He said that the following days he stayed at home in bed and was barely aware that the phone had rung or that he had to eat, take his medication or even care for his life, and that he was appalled and did not want to talk to anyone.

 

His supervisor telephoned Mr Bienias and left a message advising him that he was required to produce a medical certificate in support of his absence.

 

On 23 May 2016, Iplex arranged for a letter to be delivered to Mr Bienias. This letter requested that Mr Bienias urgently contact his supervisor. Mr Bienias said that, for reasons relating to his mental health, he did not become aware of this letter until sometime in June 2016.

 

A management employee of Iplex contacted the Western Australian Police on 26 May 2016 to request that the police conduct a welfare check on Mr Bienias and was advised that the police had been able to contact him.

 

21 On 30 May 2016, Iplex prepared and dispatched by courier a letter to Mr Bienias, terminating his services for reason of abandonment. He was paid five weeks’ notice and all statutory entitlements.

 

The decision

 

In the initial Decision the DP considered both the Fair Work Act and the Award, in effect interpreting the award provision (which in my view is a matter for the courts – not the FWC), stating:

 

“Notwithstanding my significant reservations about the potential inequities created by this strict approach to the application of clause 21 of the Award, I am unable to apply that clause in any other manner.”

 

The FB then described in detail how difficult it is to uphold an appeal. It is not a “right”. But in this matter the FB was persuaded that Mr Bienias has made out a case of error, namely, that the decision-maker has acted on a wrong principle, has mistaken the facts, has considered an irrelevant consideration or failed to consider a relevant consideration, or has decided which is unreasonable or manifestly unjust. In our view, the appellable error identified is one that attracts the public interest and so permission to appeal must be granted.

 

In short, the FB, stated that the Award was inconsistent with the FWA (relating what can and cannot be in a Modern Award), and deemed the Award clause relating to abandonment of employment to be a non-allowable matter.

 

The FB also stated that therefore, it was Iplex which terminated the employment, not the Award, adding:

 

“Furthermore, the payment to Mr Bienias of five weeks’ pay in lieu of notice is inconsistent with the employment having been terminated other than on the initiative of Iplex. The correspondence makes no suggestion that the payment in lieu is by way of gratuity or without obligation to make it”.

 

Conclusion

 

The FB sent the matter back to the DP for rehearing.

 

 Commentary

 

I look forward to the DP’s decision (if it is not settled beforehand), which I believe should focus on Mr Bienias’ inability to contact Iplex or have someone do so on his behalf. Goodness knows that I am no fortune teller but given the cost (and anxiety) of this matter to date, and the likelihood, that even if Mr Bienias wins the case, I cannot see a big pay out.

 

Now if he had of applied under the General Protections provision of the FWA, this might be a different story (maybe).

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

In this Edition, I revisit the age-old question of “did he jump or was he pushed. Or in the parlance of the workplace was the employee given “Hobson’s Choice” – ie no choice at all. This is fundamental (or jurisdictional) matter that must be resolved before an unfair dismissal case can proceed.

 

I have examined for, your viewing pleasure, the latest cases on this subject – one involving a permanent employee, the other a casual.

 

The first decision is a loss/win/loss, and the send a loss.

 

On review (or summary) these decisions are a timely to:

 

  • Ensure that their contracts of employment include the payment in lieu of notice upon the employer’s discretion.
  • Never accept resignations in the “heat of the moment”. Allow a cooling-off period (the second decision allows just one hour). I suggest overnight.
  • Never (ever) give an employee the choice of resign or be sacked. It’s either one or the other.
  • A resignation, once given, cannot be withdrawn unless agreed by the employer.
  • It was reinforced in both decision that the FWC is not bound by the rules of evidence, in that the parties must be given a fair hearing.

 

 

  • Policies relating to the rules of taking all types of leave are in place and followed. If there are dates that leave cannot be taken (except for exceptional circumstances) then these should be included in the policy and the contract.
  • Unauthorised absences are serious misconduct, sick leave not so much.
  • And most mind boggling is why, after someone has submitted their resignation, would you go to all the effort to go down the performance management road?
  • A resignation should be gained in writing; however, a verbal resignation is still a resignation.

 

I have also included a link to an interesting article “Facing a workplace investigation by the Fair Work Ombudsman: What is at stake?”

 

Hope this helps 😊

 

Annual leave not granted, resignation = dismissal?

Mr Christopher Patterson v Re-Engage Youth Services Incorporated T/A Re-Engage Youth Services. (U2017/8214) [2018] FWC 20. Anderson, DP, 3 January 2018.

 

As I mentioned, this is far from a new issue. However, this 41-page decision appears to provide chapter and verse of the subject. – citing many full bench and other decisions – and applying logic that I find a little perplexing.

 

On the other hand (in my opinion) the company, faced with a written resignation, sought advice from an “external HR consultant” which somehow resulted in a performance management meeting being held after the resignation, which ultimately led to the Company’s downfall.

 

There are no winners here: The Company was represented by a QC and solicitor, and Mr Patterson was also represented. Both given leave to do so by the DP. Given the outcome (warning spoiler alert) was a “half-finding” against the Company resulting in a measly $1,324.15 less tax, one wonders was it worth all the trouble and expense.

 

The case

 

Section 386 of the FW Act provides that a person has been dismissed if:

 

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

 

Mr Patterson, the Applicant in this matter, is a 70-year old former solicitor and police officer with a background in criminal investigation. Rather than retiring, in March 2013 he commenced employment at the Independent Learning Centre in Mount Gambier.

 

Mr Patterson, claimed to have been unfairly dismissed on 10 July 2017, with the dismissal taking effect that day. In the further alternative, Mr Patterson says that if he was not dismissed by forced resignation on 10 July 2017 then he was dismissed by decision of the employer on 10 July 2017 to bring his employment to an end effective 24 July 2017 rather than 31 July 2017 as he had notified.

 

Long story short, Mr Patterson’s wife had arranged for a family holiday to Thailand to commemorate the death of recently deceased nephew. All air-fares had been paid and the wife and other family members ensuring that they were availed with annual leave prior to booking. No so Mr Patterson, who failed to apply for leave, until some months later – and only then informally (ie not filling in the appropriate form).

 

Being a teacher, Mr Patterson was expected to work during school terms. As the holiday period in question was during a school term, his leave was refused.

 

This subsequently caused Mr Patterson some degree of consternation, resulting in stress which in turn led him to leave the workplace without telling anybody (leaving a staff member alone) and then taking sick leave without advising the Company. The sick leave was later covered by medical certificates.

 

The DP stated that he considered I consider that:

 

  • Mr Patterson’s 90-minute unauthorised absence from the workplace on the afternoon of Friday 30 June was a serious failure warranting sanction but, in all the circumstances, was not a valid reason for his dismissal given that he was an employee who otherwise had an exemplary record.

 

  • The employer produced no policy at the hearing to support its claim that Re-Engage employees were required to telephone and not text notification of sick leave absences. He had previously notified sick leave absence by text without complaint by the employer.

 

  • Mr Patterson did not breach the Company’s Annual Leave Policy by making a request for annual leave without completing a leave request form. The employer’s Annual Leave Policy requires an employee to submit a form at least three weeks prior to leave being taken.

 

The DP’s logic

 

The DP found that Mr Patterson di not resign at the “employers initiative”:

 

“I am satisfied that Mr Patterson resigned because of the employer’s conduct, but I am not satisfied that he was forced to do so. I readily accept that Mr Patterson resigned under the burden of immense pressure. He felt he had to choose between his job and a family holiday that had deep personal significance [and] that if he could not have both the holiday and his job, then he would very reluctantly forgo his job for the holiday. He knew that he couldn’t cancel the trip or the flights”.

 

The DP cited many, many instances of actions Mr Patterson could have taken, to convince his employer that he needed the leave on compassionate grounds but failed to do so, stating:

 

“To him, the situation had gone from bad to worse now that he faced the indignity of being performance managed.”

 

Then the DP found that that Mr Patterson was “forced to resign”:

 

“Taking these factors into account, and especially the combined effect of the unilateral decision to pursue performance management after the employee’s resignation and to shorten the notice period given by the employee and to deny the employee the right to work out the notice based on views arising from the performance management meeting, I consider that the employer brought Mr Patterson’s employment to an end in a manner that was materially different to the terms on which he had resigned. In those circumstances I characterise the employer’s conduct as substituting a termination of employment at its own initiative rather than simply being conduct consequential to the resignation”. [My emphasis].

 

“I have found that Mr Patterson was not forced to resign by the conduct, or a course of conduct, engaged in by Re-Engage. However, I have found that Mr Patterson was otherwise dismissed at the initiative of the employer. Thus, Mr Patterson was dismissed within the meaning of the FW Act”.

 

The Legal Principles

 

As I have mentioned this was a very lengthy decision, which brought to attention many salient case precedents. The following is a dot-point summary:

 

  • The DP also stated that as the Company raised jurisdictional issues, it bears the legal onus of establishing that Mr Patterson was not dismissed. However, in circumstances where an employee resigns but claims their resignation was, at law, a dismissal an evidentiary burden exists on the employee to establish that the termination was at the initiative of the employer or forced by the employer’s conduct. The DP cited Australian Hearing v Peary (2009) 185 IR 359 at [30]].

 

  • The legal principles governing the application of section 386(1) are well established. Together with an analysis of its legislative history, they were recently set out by a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli as follows:

 

“There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign.

 

“(1) Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

 

“(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in section 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” [My emphasis].

 

  • Then quoting O’Meara v Stanley Works Pty Ltd:

 

“In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

 

Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment.

 

‘This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.” [My emphasis].

 

  • Put another way, the DP quoted from the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering):

 

“The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception…is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation… such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

 

“The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period’ before acting upon it…I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.” [my emphasis].

 

The DP also described the FWC’s role:

 

I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of the Full Bench of this Commission which recently said:

 

‘The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.’”  [My emphasis].

 

A verbal resignation is still a resignation…

Miss Addy Foale v Davsan Pty Ltd T/A Seaton Hotel. (U2017/12189). [2018] FWC 1085. Anderson, DP. 21 February 2018.

 

Ms Foale, the Applicant, was employed by Seaton Hotel as a casual Food and Beverage Attendant from January 2017 to 10 November 2017. Her employment was regular and systematic except for absences due to injury or sickness, and she had a reasonable expectation of continuing employment on that basis

 

The Seaton Hotel raised a jurisdictional challenge, claiming that Ms Foale was not dismissed. It contends that she resigned from her employment on 10 November 2017 and confirmed that decision by conduct over subsequent days. In the alternative, it says that any dismissal (if found) was not unfair, as Ms Foale failed to mitigate her loss or accept offers of alternative work.

 

Ms Foale was self-represented but assisted by a former employee (and witness) Ms Tylor. The Seaton Hotel was represented by Ms Legoe of the Australian Hotels Association (AHA) supported by Mr Webb of the AHA as an observer. Ms Foale objected to the employer being represented by an experienced officer of the AHA. The objection was dismissed claiming Ms Legoe, as an officer of an industrial association, was not required to obtain the Commission’s permission under section 596 of the FW Act to represent the employer. However, the DP took into consideration that Ms Foale’s case was being adequately presented and that the employer’s case was being tested.

 

The Legal Principles relating to whether there was a termination are a carbon copy of the previously reported decision – including the FWC’s use of the rules of evidence.

 

Personal circumstances also played a part, that is Ms Foale was dealing with difficult personal and family circumstances. Casual work at the hotel was her only current source of income and she was financially vulnerable. Ms Foale needed and requested more hours and approached her manager with this request. This conversation did not end well, with Ms Foale being somewhat frustrated that she was not getting the hours she wanted and her manager advising her “Rosters are performance based. At this time your attitude and work performance are not up to standard…” Ms Foale (interrupting): “I am leaving this place, this is ridiculous.” The manager: “Do you want me to take you off next week’s roster?” Ms Foale: Ms Foale: “Yes” (walking out and slamming the door closed). Ms Foale denied that she wished to be taken off the roster.

 

Ms Foale returned to her duties. Where a more senior manager met with Ms Foale outside of the hotel to review the conversation as it had been reported to him by Ms Foale’s manager. Ms Foale told the senior manager that her manager had lost his cool and was taking her off the roster. She said she needed more hours and could not live on the hours rostered. The senior manager suggested

Ms Foale approach her manager, apologise for having blown up in his office, explain that she was feeling stressed, seek his forgiveness and move forward. Ms Foale agreed to do this.

 

Ms Foale’s manager then approached her in the carpark, with the DP stating that this was the probable conversation:

 

Manager: “I have never ever been spoken to like that by a staff member before.”

Ms Foale shrugs her shoulders and rolls her eyes.

Manager: “I am new here, I am trying to bring a better culture and I don’t feel you are being part of the team”

Ms Foale: “Well I am guessing that is it then; we are going to part ways”

Manager: “Yes I think that is best”

Ms Foale: “Thank you, do I have to go see Matt?”

Manager: “No you don’t”

Ms Foale: “Will I be paid for the rest of the shift?”

Manager: “Yes. Matt may be in touch”

 

A number of text messages were exchanged between Ms Foale and the senior manager, which Ms Foale put as evidence that she did not quit, but the Hotel stating that they self-serving and an attempt to re-write history.

 

The DP finding:

 

“A dismissal at the employer’s initiative is commonly (but not exclusively) evidenced by a decision to dismiss and communication of that decision. There was no decision to dismiss by [the Hotel], nor communication of a dismissal or an intention to dismiss.

 

“The brevity of both the first and second Foale / [manager] conversations and the imprecise language used created a certain ambiguity to Ms Foale’s departure that was at odds with the clarity [the senior manager] had sought. However, none of the words used to Ms Foale…could be reasonably interpreted as a dismissal…”

“There are circumstances where an employee resigning in the heat of moment can be said to have been dismissed if the employer acted unreasonably in relying on that circumstance without satisfying themselves that this is what the employee really intended. [My emphasis].

 

“However, that is not what happened at the Seaton Hotel. Indeed, the very opposite. [the senior manager’s] …with Ms Foale on that day were designed to allow the heat of the initial confrontation to abate and for Ms Foale to reflect on her position, not quit and mend relations with the manager…Ms Foale had approximately an hour to do that … This constituted an adequate cooling off period…” [My emphasis].

 

The DP stating:

 

“While the employer can rightly be criticised for not seeking her resignation in writing and allowing her to leave the workplace without securing that level of clarity, Ms Foale’s erratic behaviour on the day (saying she was leaving, continuing customer service after storming out, failing to apologise when given that option, declaring a parting of ways after a cooling-off period and leaving the workplace with her shift uncovered) meant that this was not a resignation made in any orthodox manner. It contributed to the ambiguity in the day’s events. In any event, a verbal resignation (once made) is still a resignation”. [My emphasis].

 

The DP stated that he preferred the evidence of the Hotel’s managers over that of Ms Foale, and the matter was dismissed.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

FWC Hands Down Domestic Violence leave (summary) decision.

AM2015/1 [2018] FWCFB 1691.

 

As part of its four-year review on Modern Awards, the ACTU, in 2017, argued for an unlimited or as a “fallback” 20 day paid leave for victims of domestic abuse/violence. The FWC rejected the paid leave, however called for submissions for unpaid leave.

 

This “Summary of Decision” is the forerunner of what will be a standard clause to be developed in the coming weeks that will include an entitlement to five days leave at the start of each year – non-cumulative (ie it will not accumulate from year to the next). As soon as I know, I will send you the standard clause.

 

Details to date

 

Introduction

 

One in four women in Australia have experienced family and domestic violence (almost 2.2 million women). Domestic and intimate partner homicides represent the highest proportion of any category of homicides in Australia. At least one woman a week is killed by a partner or former partner. Family and domestic violence is the leading contributor to death, disability and ill-health among Australian women aged between 15 and 44.

 

Such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. It is an issue that impacts on workplaces and which requires specific action.

 

There is no single generally accepted definition of family and domestic violence, but at the core of family and domestic violence is the perpetrator’s need to maintain control and dominance over the victim.

 

The Full Bench accepted that family and domestic violence is a gendered phenomenon that disproportionately affects women, and that women are more likely than men to:

 

  • be subjected to frequent, prolonged and extreme violence;
  • be sexually assaulted;
  • sustain injuries;
  • fear for their lives; and
  • experience other negative consequences, such as psychological

 

The Findings

 

  1. Family and domestic violence has a significant adverse impact on those who experience such

 

  1. While men can, and do, experience family and domestic violence, such violence is a gendered phenomenon that disproportionately affects women.

 

  1. The effects of family and domestic violence are far reaching and extend beyond the individual directly affected; to their families and the general community.

 

  1. Family and domestic violence has a real and tangible impact on employees and employers in the workplace.

 

  1. Employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or becoming a sole parent; and may suffer economic harm as a result of disruption to workplace participation.

 

The entitlement to unpaid leave

 

The Full Bench went on to address a number of matters relating to access to the entitlement to five days’ unpaid leave, and decided that the unpaid leave entitlement:

 

  • Will be additional to other forms of leave (whether paid or unpaid);
  • will apply to all employees (including casuals);
  • will be available in full at the commencement of each 12-month period rather than accruing progressively during a year of service;
  • will not accumulate from year to year; and
  • will be available in full to part-time and casual employees (i.e. not pro-rated).

 

 

What it means for your organisation

 

If you already have domestic violence leave as a policy (whether paid or unpaid), then take notice of the model award clause, and later the clause where your policy does not cover off areas in the policy.

 

If it is contained in an EBA, no action needs to be taken, however if it falls short of the model clause, then you may alter the EBA – too much paperwork – if necessary do it by policy.

 

No policy? Then develop one, based on the model clause.

 

Commentary

 

This is something that goes back generations (I know: it effected my own family only one generation ago*). I think it is a sad indictment on our society that we must provide leave in in the workplace to help those most vulnerable.

 

It is my hope that the “law of unintentional consequences” does not make a domestic situation, public knowledge and/or cause derision against any person who needs to avail themselves of such leave.

 

*The coppers paid him a visit and gave him a good belting – problem solved? Not an ideal strategy.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

Introduction

 

This edition is focused on what I believe to be the latest “gold standard” decision in “Stop Bullying” orders and is quite long. Therefore, I recommend it be read in in two parts: firstly, to read about the case proper, then for practitioners to note from the section headed “the law”.

 

I have also included at the conclusion, some articles of interest which have raised my interest:

 

  • Nurse murdered whilst on-call a safety breach.
  • Super: Director liability and how the ATO determines what is owed.
  • Whilstleblower news.

 

Rare Stop-Bully Order

Jennifer Watts. (AB2017/517) [2018] FWC 1455. Williams, C. 20 March 2018.

 

As mentioned in my introduction, this decision is the latest precedent in stop bullying orders. The decision itself, reinforces the need to follow your policies and investigate all complaints, regardless of how trivial. Noting the applicant, Ms Watts was very persistent in her complaints: approaching management on a number of occasions (which were ignored because she could/would not name names; then WorkCover; then her union.

 

The Commissioner in this matter commented that there are relatively few decisions concerning applications for an order to stop bullying, therefore thinking it helpful to set out the relevant legislation and to explain the considerations involved in deciding such an application.

Ms Watts is employed as a Catering Assistant, sometimes referred to as a Patient Service Assistant, at the Glengarry Private Hospital (Glengarry). Her employer is Ramsay Health Care (Ramsay).

Ms Watts’ first application named three employees (later amended to two) she believed had engaged in bullying behaviour toward her: Mr Ashok Kumar, the Hotel Services Manager and Ms Miriam Laabei a Human Resources Advisor.

 

Ms Watts represented herself and Ramsay Health Care was represented by Ms Julianne Allan, Ramsay’s Regional HR Manager.

 

Background

 

Ms Watts’ application. describes the behaviour she has experienced that she thinks constitutes bullying as follows (which was supported of three pages of written “history”):

 

There is a group of people who are repeatedly and unreasonably harassing, teasing, victimising, bullying, and victimising me at work. This behaviour is unrelenting, and will continue.”

 

Ms Watts said that she has brought these problems up with Ashok, Mr Vivek (who was Ashok’s second in charge) and Ms Laabei both verbally and in writing. However, Ashok’s response was to say that she had no proof, and when she provided specific incidents and the names of witnesses, which she did in writing, they dismissed this. None of the witnesses that she has asked them to talk to, to verify her claims have been approached by Ashok, Vivek or Ms Laabei.

 

At the hearing evidence was given by Ms Watts who also tendered brief statements from two other persons, Mr Lex Robertson and Mr Philip Aylmore. Evidence was then given by Mr Kumar, Ms Laabei, Ms Allan and Ms Leonie Gardiner (Ms Gardiner) who has been the Chief Executive Officer of Glengarry since 2015.

 

Ms Watts is covered by the FWA, an EBA and the employer’s comprehensive (that is to say, very good) Bullying and Harassment Policy.

 

Ms Watts was provided with a letter written by Vivek, who was the Acting Catering Manager, and required her response to six allegations to an incident that occurred in April that involved her being late for work (stating that she had to go home), an argument with a work colleague and leaving early without clocking off.

 

Ms Watts responded accordingly, with one part of the response being:

 

“No I did not clock out. All staff members have forgotten to clock in and out at some stage of employment. If I am to be reprimanded for this, then all staff members in the kitchen should be reprimanded in just the same way. This last point is just showcasing the bullying, victimisation and defamation of character that I have been experiencing for six years at Ramsay, and never has any of my co-workers been subject to the same kind of harassment that I have had to endure.

 

“This is because there is a handful of staff members that work in the mornings that have admitted to people that they do not like me. They waged a secret war to get me fired for the past 6 years, this has not worked because my previous bosses have eventually seen through their lies”.

 

An investigation followed, and a formal meeting was conducted which found that: “…no formal action will be taken.” There was no reference to the bullying and victimisation matters Ms Watts raised in her written response to the allegations. However, the investigation did not pursue the bullying and harassment allegations.

 

Mr Kumar’s evidence was that Ms Watts advised him and Ms Laabei on a number of occasions that she felt she was being bullied at work by others. He says this most often occurred when she was undergoing formal investigation or being spoken to about her performance or behaviour. He says on each occasion he would ask for specific details of who, when and what has happened, and Ms Watts would not provide details to him and so it was impossible for him to commence investigations into her allegations of bullying. Ms Laabei gave similar evidence.

On 14 August 2017 Mr Kumar met with Ms Watts regarding her allegations of bullying. Mr Kumar completed an Employee File Note (which was signed by Ms Watts) of that meeting which concluded that:

 

  • “Jennifer should have clear understanding of bulling (sic) at work and if she still feels that she is being bullied then she should contact Miriam immediately with evidence.
  • If Jennifer fails to contact Miriam, then she should not bring up previous incidents of bulling (sic) moving forward.
  • False allegation of bulling (sic) may lead to performance management.”

 

The next day, 15 August 2017, Mr Kumar met with Ms Watts and Ms Elizabeth Meldrum “to discuss the conflict between Elizabeth and Jennifer on 8th August afternoon and investigate the reason of conflict”. Mr Kumar completed an Employee File Note (which was again signed-off by all parties) of that meeting which concluded:

 

  • “We expect all employees to attend work and carry out their job in a professional and efficient manner, it is inappropriate to create or bring problems in to the workplace, it is inappropriate to cry in the workplace. It is expected that all employees behave in appropriate manner at all times according to Ramsay Values and code of conduct
  • We must show respect when communicating and working with our team members and all employees of Ramsay, we must treat each other with respect and dignity at all times.
  • “…we should not be participating in or starting rumours, you are at work, not in a playground.
  • “I do not want to see a repeat incident of what happened on Tuesday. I expect to see all employees working together as a team in a professional manner to ensure the best care for the patient. If you have a problem at work, please try to resolve the problem with the person in a professional manner, if you feel you cannot do this, please let me know, do not include everyone else in the team, this is a distraction to others.
  • We have to adhere to the Ramsay Values and code of conduct at all the times failure to adhere to the Ramsay Values and code of conduct may lead to disciplinary action being taken.”

 

Mr Kumar’s said he sought advice from Ms Laabei regarding concerns he had about Ms Watts’ health and well-being at work. Examples of the concerns he had were that Ms Watts lacked concentration and was claiming to forget things; was unable to retain information some of which had the potential to compromise patient safety; and she had tripped twice in a six month period. Ms Watts was highly emotional and had two recent outbursts at work and she could not provide him with a reason as to why she had become extremely emotional. It was decided that Ms Watts would be asked to attend a Fitness for Work Assessment.

 

No report of the assessment was tendered by either party in evidence, however a letter dated 30 August 2017 Mr Kumar confirmed details of a meeting held the same day following the assessment (which was comprehensive) and concluded:

 

“…In Dr Berrisford’s opinion there was no evidence of a current major affective or cognitive disorder impacting on your insight or ability to undertake the inherent requirements of the role”.

 

With the letter concluding:

 

“As your employer we have a duty of care to provide you with a safe system of work and to ensure that you are both physically and psychologically fit to perform the inherent requirements of your role. As a result of Dr Berrisford’s findings and recommendations, you are currently fit to perform the inherent requirements of your role as a Catering Assistant.

 

“In relation to the allegations of bullying, there has been no evidence to substantiate your allegations.”

 

Another report concluded:

 

As Jennifer did not, and would not, provide us with specific information about the allegations of bullying, there were no allegations to investigate.”

 

As Ms Watts did not provide them with specific allegations of bullying that could be investigated Ramsay decided to run education sessions for employees dealing with acceptable and unacceptable behaviour and the process for reporting concerns. Ms Watts was also in attendance at this session.

The Commissioner finding that no investigation at all was undertaken by Ramsay into Ms Watts’ complaints of bullying.

 

In September 2017 Mr Kumar notified Ms Watts in writing of allegations that were made against her. Ms Watts provided a four-page written response and then meetings were held with her regarding these allegations.

 

On 5 October 2017 Ms Gardiner wrote to Ms Watts regarding these five allegations detailing Ramsay’s investigation findings and conclusions and issuing Ms Watts a First Formal Written Warning relating to her discussing the issues with her colleagues in direct violation of her undertaking not to do so.

 

Ramsay concluding that Ms Watts had “…breache(d) of confidentiality, a reasonable management request, the Ramsay Values and Code of Conduct, and making false statements you are being issued with a First Formal Written Warning.

 

Ms Watts then raised her concerns with Worksafe. A Worksafe inspector met with Ms Gardiner, Ms Laabei and two of Ramsay’s OHS managers. Worksafe advised they had completed their enquiries and no breaches of the occupational safety and health legislation were identified.

 

Ms Watts then approached her union, which filed application to the FWC.

 

In her application (and contrary to the “for-for-work” test) Ms Watts stated that the behaviour she has been subjected to has created a risk to her health and safety. She says she cries every day and this can happen at any time when she thinks about work. She cannot seem to stop thinking about why people hate her so much and it’s like a physical pain in her chest. She says she has developed a stress disease called neuralgia on her arms and she has stomach complaints; confirming she had been put on antidepressants by her doctors with increasingly strong dosages.

 

[Despite medical evidence to the contrary], the Commissioner was satisfied on the evidence that Ms Watts’ health has been negatively affected by her experiences at work and what she perceives to have been bullying behaviour.

 

Following the conciliation meeting in the Commission on 18 December 2017, a meeting took place with Ms Gardiner, CEO, and Ms Allan, Regional HR Manager WA & SA, and Ms Watts. As an alternative to proceeding to a full hearing, a number of temporary measures were agreed. Ramsay submit Ms Watts was extremely satisfied with the temporary plan that had been agreed and advised them that she was keen to see ‘how it goes’, and therefore would be postponing the Commission hearing until after this time. The temporary plan was due to commence when Ms Watts returned from annual leave in January 2018.

 

Ms Watts retracted this agreement and decided to proceed to full hearing; claiming workplace bullying against Mr Kumar, Hotel Services Manager, and Ms Laabei, HR Advisor. Both Ms Laabei and Mr Kumar strongly deny these allegations.

 

The Commissioner deciding:

 

  • Ms Watts is a worker who reasonably believes that she has been bullied at work.
  • Based on Ms Watts evidence alone, the majority of her allegations were accepted and therefore she was in fact bullied whilst at work.
  • In terms of the “no investigation,” the mangers “imposed their own requirements on how Ms Watts must complain to them about alleged bullying” thus ignoring the requirement set out in the Ramsay policy. The commissioner also noting:

Whilst complaints of bullying under the policy are required to “…be raised as soon as possible so that the situation can be dealt with quickly,…” the reality will often be that an employee may be subject to unreasonable behaviour by individuals and initially may be willing to and able to ignore and tolerate this however as time passes if this continues they may no longer be willing to or able to tolerate further unreasonable behaviour. In these circumstances an employee should not be criticised for not having raised the earlier instances of unreasonable behaviour at the time they occurred. [My emphasis].

“The corollary of this however is that when an employee raises a complaint about a past incident of unreasonable behaviour it may be difficult for that to be investigated because of the passage of time. This potential difficulty is not a sufficient reason to not commence an investigation at all. [My emphasis].

  • That there are two reasons why an investigation into an allegation of bullying is undertaken by an employer:
    • The first is to establish whether in fact an employee has been subject to unreasonable behaviour so that if this has happened they can be provided with support and assistance and remedial action taken.
    • Secondly that investigation will seek to identify whom was responsible for any unreasonable behaviour and as part of taking action to prevent further unreasonable behaviour the individual/s may be subject to disciplinary sanction if appropriate. In some cases it may be established that an employee has been subjected to unreasonable behaviour but for any number of reasons the investigation does not lead to disciplinary sanctions against any other individual perhaps for example because no individual can be identified. This investigation will still be an important and positive development for that employee who had been subjected to unreasonable behaviour.
  • Ms Watts was at work some individuals have repeatedly behaved unreasonably towards her. I have also been satisfied that the evidence is Ms Watts’ health has been negatively affected by her experiences at work.
  • I am satisfied that there is a risk that Ms Watts will continue to be bullied at work.
  • Some of the instances of bullying that I have found did occur can be viewed in isolation as relatively low-level bullying however considering all that has happened together I have no doubt that it is necessary for the Commission to intervene and it is appropriate to make an order to prevent Ms Watts from being bullied at work in future.

 

The Commissioner concluding:

 

“It is to be remembered that the legislative scheme is not directed at punishing those who may have behaved unreasonably in the past nor is it to compensate someone who has endured such bullying instead it is directed at preventing Ms Watts from being bullied at work in the future”.

 

The Commissioner deciding to issue a “draft order” that can be considered by the parties until to 4 April 2018.

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

 

THE LAW

 

789FD When is a worker bullied at work?

 

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. [my emphasis].

 

Section 789FF of the Act sets out when the Commission is empowered to make orders in a case where the Commission is satisfied there has been bullying at work.

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

 

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. [My emphasis].

 

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

 

The Commissioner cited Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher [[2017] FWC 4988] helpfully identified the relevant consideration involved in determining an application for an order to stop bullying as follows:

 

  • “An applicant for an order from the Commission to stop bullying…must not only be a worker but one who ‘reasonably believes that he or she has been bullied at work’.
  • This belief being actually and genuinely held, as well as it being reasonable in an objective sense.
  • Conduct does not occur “at work” merely because it has a substantial connection to work. The question of whether behaviour or conduct occurred “at work” does not necessarily equate to the performance of work and will require a consideration of the context, including custom and practice, and the nature of the worker’s contract.
  • “Unreasonable behaviour” requires application of an objective test having regard to all the relevant circumstances applying at the time.
  • “Repeated behaviour” refers to the persistent nature of the behaviour and can refer to a range of behaviours over time.
  • “Unreasonable behaviour” is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable. This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.
  • A Corporation cannot bully, however, the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.
  • “Repeatedly behaving unreasonably” implies the existence of persistent unreasonable behaviour and it might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent “repeatedly” behaving unreasonably
  • “Unreasonable behaviour” should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable.
  • “Repeatedly behaves unreasonably” (by an individual or group) will require a purposive approach.
  • “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
  • Further, for conduct to be reasonable it does not have to be the best or the preferable course of action, rather the conduct will be objectively assessed as to whether what was done was done “reasonably”, not whether it could have been done more reasonably or differently.
  • It will be necessary for the Commission to determine whether the alleged behaviour actually occurred, and once the necessary findings of fact have been made, the Commission can then determine whether the behaviour was unreasonable.
  • In relation to the risk to health and safety of unreasonable behaviour, there must be a causal link; however, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger.
  • “Reasonable management action carried out in a reasonable manner” is not an exclusion but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner serves to provide guidance in the interpretation and application of s.789FD(1)(a) in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constituted bullying.

 

In Amie Mac v Bank of Queensland Limited and Ors, some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work:

 

…intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”

 

In Ms SB [[2014] FWC 2104] Commissioner Hampton held that conduct capable of being considered as unreasonable behaviour, depending upon the nature of the actual conduct and the context can include:

 

  • The making of vexatious allegations against a worker,
  • Spreading rude and/or inaccurate rumours about an individual, and
  • Conducting an investigation in a grossly unfair manner.

 

The Commission does not have to be able to identify the person/s who have engaged in the unreasonable behaviour. An employee can be subject to unreasonable behaviour by other persons however the identity of the persons is unknown. Examples of such behaviour may be where an employee’s personal effects have been deliberately damaged, graffiti referring to an employee appears in the workplace or notes, or messages are received by an employee however who was responsible for this behaviour is unknown. [See Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Ors [[2015] FWC 7312]).

 

Interesting reading from the web:

 

Nurse murdered whilst on-call a safety breach:

http://www.mondaq.com/article.asp?articleid=688138&email_access=on&chk=1332247&q=644109

 

Super: Director liability and how the ATO determines what is owed:

http://www.mondaq.com/article.asp?articleid=689856&email_access=on&chk=1333965&q=644109

 

Whilstleblower news:

http://www.mondaq.com/article.asp?articleid=689514&email_access=on&chk=1333623&q=644109

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.

Introduction

 

In this Edition, I focus on a complex (38 pages), but ultimately simple decision relating to “labour hire” employment, in which the Deputy President observed:

 

“The prevalence of genuine independent contracting as well as labour hire (or on-hire) workers alongside direct employment and contractors are features of the modern economy”.

 

This is no more evidenced than a full-page advertisement (no doubt, national newspapers) calling for tenders from labour hire companies for the major Regional Rail project.

 

I have also included at the end, a link to an article on the role of a “Support Person”.

 

Multiple Names x 2 Employers x 2 Unfair Dismissal Applications = No Jurisdiction

Mr Constantinos Trakas v BPL Adelaide Pty Limited. (U2017/11251) [2018] FWC 1530 & Mr Constantinos Trakas v Ready Workforce (A Division of Chandler MacLeod) Pty Ltd T/A Chandler MacLeod (U2017/11252). Anderson, DP. 16 March 2018.

 

As mentioned in my introduction, this was a long-winded decision (38 pages) which provided the Applicant with a great deal of latitude and (arguably a written reference from the DP), but predictably failed for wont of jurisdiction (casual/minimum employment period).

 

The applicant was employed as a casual employee with labour hire firm Chandler Macleod, which assigned the Applicant to Baiada Poultry.

 

The Applicant went by two names: firstly, his birth name was Anastasios Karrasulous, secondly, he then changed his name (to honour his father’s adopted family) to Constantinos Trakas and finally returning to his birth name Anastasios Karrasulous. The name changes were all undertaken lawfully, however he was prone to use the names interchangeably depending on the circumstances at hand (or as the DP put it “naively”).

 

His explanation for the two names was accepted by Chandler Macleod, and he was assigned to work at Baiada Poultry.

 

The Applicant, whilst still under assignment form Chandler Macleod, applied directly with Baiada Poultry for work. The applicant was success in his application and was offered employment, to which the Applicant accepted.

 

At this point the DP accepted that the Applicant was employed under two contracts of employment: one with Chandler Macleod and the other with Baiada Poultry; making the following observations:

 

“The principles governing an employment relationship are well established. They are drawn from contractual principles, including the existence of offer, acceptance, valuable consideration and intention to create legal relations.

 

Also citing a full bench decision, FP Group v Tooheys:

 

“In the context of a genuine labour hire arrangement – that is, one involving a labour hire company genuinely in business on its own account – the fact that a worker supplied by the labour hire company works under the direction of the hirer is not necessarily inconsistent with the proposition that the worker’s contract is with the labour hire company and not the hirer.”

 

Find further:

 

“I do not consider there to be a legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:

 

“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”

 

Returning to the case at hand, upon finding of the Applicant had differing names, Baiada Poultry withdrew the offer of employment. This was due to Baiada Poultry having been found previously to have lacked due diligence in its hiring practices.

 

Chandler Macleod subsequently assigned the Applicant to another company, but he walked out after two hours, still hurting from the Baiada Poultry rejection.

 

The Applicant then filed two applications for unfair dismissal – one for each “employer”. Despite protestations by both respondents, the DP insisted that the matters be heard as one.

The DP providing broad concessions to the Applicant, including holding of the five-day hearing in the afternoons to accommodate the applicant’s new employment arrangements.

 

Then providing a (non) opinion, the DP opined (or in my opinion provided a written reference for a person unknown to the DP):

 

Firstly, whilst I received evidence on merits and on remedy, I have self-evidently not been in a position, given my jurisdictional findings, to make a decision on matters of fairness. Lest the parties, including Mr Trakas, interpret this decision as a statement about whether relevant conduct was or was not fair, I make it clear that no such conclusion has been made.

 

“Secondly, there are matters which emerged from the evidence which should be a cause for reflection for all three parties, Mr Trakas, Baiada and Chandler MacLeod. It is not the Commission’s role to provide gratuitous advice and I decline to do so.

 

“Thirdly, given the public nature of this decision and its accessibility to a prospective employer I highlight my finding that Mr Trakas, despite the unusual circumstance in which he naively operated under two names, did not set out to deceive or mislead. When he changed his name he lawfully did so. He disclosed that fact to his employer Chandler MacLeod prior to being employed on 23 March 2017. He disclosed that fact to Baiada when offered direct employment in September and October 2017. I also draw attention to my finding that Mr Trakas was a hard-working, reliable and productive process worker evidenced by the fact that he was offered direct employment by the host business after six months of satisfactory service as a labour hire worker. His former employer, Chandler MacLeod, also held that view”. [My emphasis].

 

Interesting reading from the web:

 

Role of the Support person

 

http://www.worklogic.com.au/employment-policies/dealing-with-support-people-in-workplace-investigation-interviews/

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.