I thought it informational that when presenting witnesses before any tribunal, they are carefully scrutinised. For example the following is from a recent unfair dismissal decision:

 

“I found the applicant to be an impressive witness. His oral evidence was clear, plausible and consistent both internally and with the contemporaneous documents that he filed with his statement.

 

“Mr Gummi’s written statement, on the other hand, contained a number of sweeping factual assertions about the applicant’s alleged misconduct, none of which were backed up by any specific evidence. I also note that Mr Gummi lives in Canberra and was not closely involved in the day-to-day running of the restaurant, except that he was at the restaurant on some weekends. This in itself limited the weight I could give to his evidence. For example, while he purported to give evidence about the applicant’s hours of work during the week, he also admitted that he was not present during this time. In contrast to the applicant, I did not find Mr Gummi to be a credible witness. Therefore, where there is any inconsistency between the applicant’s evidence and that of the respondent, I prefer the former”.

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.

Adrian Tainsh v Toyota Motor Corporation Australia Limited T/A Toyota. [2018] FWC 4192 (U2016/2952). Harper-Greewell, C. 16 July 2018.

 

Toyota, acting on an anonymous tip-off via its whistleblower’s hotline, that one of its General Forepersons (Mr Tainsh) was providing favours to his girlfriend and her friend(s) in the form of renewal of contracts, approval of leave not accrued, etc.

 

Toyota engaged Frances O’Brien QC to investigate the allegations, who interviewed some 15 employees plus Mr Tainsh and his girlfriend’s ex-husband (who worked at the same place). Following this report Toyota dismissed Mr Tainsh for “favouritism”.

 

Mr Tainsh had been employed for 27 years by Toyota, and in his role was supervising 69 employees. He had an unblemished record during his employment. Toyota ended Mr Tainsh’s employment by handing him a letter of termination and five week’s pay in lieu of notice. The decision also noted that Mr Tainsh was also a senior union delegate.

 

In the outset, the Commissioner stated that:

 

“The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”.

 

And:

 

“In cases relating to alleged misconduct, it is well accepted that the Commission must make a finding, on the evidence in the proceedings before it, whether, on the balance of probabilities, the alleged conduct occurred. Where the misconduct is disputed the employer bears the onus of proving to the Commission on the balance of probabilities that the misconduct has taken place. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.” [My emphasis].

 

In setting out a number “procedural” failings by Toyota, the Commissioner noted that “…had he not been dismissed he would have been entitled to receive a substantial redundancy package”. Further, and more telling, the Commissioner also found that leave policies were not always followed across the board.

 

The Commissioner in considering all the allegations, including that Mr Tainsh and his witnesses unreliable, awarded the maximum allowable under the Fair Work Act:” $68,350 plus applicable superannuation, less appropriate taxation as required by law”.

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.

Unilever Australia Trading Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2018] FWCFB 4463, (C2018/1367). Full Bench: Catanariti, VP; Colman, DP, Wilson, C. 30 July 2018.

 

This is a precedent setting full bench decision of the Fair Work Commission, which has categorically found that casual and seasonal employment does not count towards redundancy pay. This decision does not count where an employer, at it its own volition, has a written policy providing that such service shall be included when calculating redundancy pay.

 

The main statements to consider in the decisions are:

 

“Casual and seasonal employees render service. In relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next. Such is the case also with seasonal workers, who render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next. The common law position can of course be altered by statute, contract, or an industrial instrument.

 

And:

 

“…casual and seasonal employees would not ordinarily be entitled to payment of redundancy benefits anyway. The employer could simply not reengage casual employees; there is no need to make them redundant. The position is similar in relation to seasonal employees; ‘redundancy’ occurring at the end of the season would simply mean that the employer would not reengage the person for the following season…”

 

Redundancy: “Acceptable employment” explained.

The Trustee for Altman Unit Trust No 1 T/A Southgate Holden. [2018] FWC 3542 (C2018/2603). Hampton, C. 19 July 2018.

 

This matter related to an employer seeking to have redundancy pay set aside because it had offered alternate employment to the employee (Mr Klemm) wishing to receive redundancy pay.

 

Klemm was concerned about the sales aspect of the new position, Southgate Holden stated that it had offered him training and advised that his sales targets would be reviewed after a period of 6 months. It submits that this reinforced the acceptable nature of the offer of alternate employment. Further, it contends that Mr Klemm could have earned commission on sales in the new role and this was potentially additional remuneration that was designed to encourage Mr Klemm to take up, and succeed in, the new role.

 

The Commissioner stating:

 

“The critical issue here is whether the alternative position was acceptable.

 

“What constitutes “acceptable alternative employment” is a matter to be determined…on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

 

“Yet, the use of the qualification ‘acceptable’ is a clear indication that it is not any employment which complies but that which meets the relevant standard…including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.”

 

“It is also clear that acceptable employment does not mean identical employment; however, it has been held by the Commission that:

 

“…the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.

 

“Further, employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.”

 

The Commissioner considered the position description of Mr Klemm’s current role in comparison with the new role. The “sales” component was the outstanding item, which the Commissioner ultimately found that the employment offered was “not suitable”.

 

Of course, this course of action is only need be considered where the employee’s employment comes to an end and alternate employment is found to the satisfaction of the employee, who would otherwise have been made redundant.

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

Given the amount of attention by the Federal Court and FWC of late to casuals, temps and labour-hire firms (and the companies that use them), I thought it useful to provide a compendium of advice (which I refer to as a “special report”).

I have provided a sketch by way of “executive summary” and a more detailed (read “lengthy”) summation for those of you who would benefit from this knowledge base.

Also appended are the “Casual conversion” model clause and FWC letter that must be sent to all casual employees.

Casuals

The recent WorkPac v Skene decision has thrown the gauntlet down to employment of casual employees, stating that (despite the payment of 25% loading), the casual in question was entitled to leave entitlements as set down by the NES.

The FWC (and its predecessors) have been tackling this issue for many years in relation to unfair dismissal claims. These decisions, whilst mostly consistent, can be quite unhelpful in defining what a true casual employee is. For example, one decision (consistent with Workpac), and comments that:

“The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered”.

That is, it is because a statutory definition of a casual worker is not provided in the FWA, this has led to (to my mind) very generous interpretations by the FWC (and its predecessors) of what is not a casual employee. In the meantime, employers have the ongoing uncertainty of employing casuals.

And then there are these considerations…

Casual conversion to permanent

The FWC has decided to provide casual employees the right to request that their employment be converted to full-time or part-time employment if, for the preceding 12 months, they have worked a pattern of hours on an ongoing basis, which without significant adjustment they could continue to work as a full-time or part-time employee. There are a number of reasons provided to reject such a request. A letter must be provided to all casual employees with a copy of the new clause within the first 12 months of their employment, or if already engaged, by 1 January 2019.

Temp and fixed term engagement

The hiring of temporary or fixed term employment must:

  • Be very specific on the task the employment is for and provide a definite end date (or end of “season”).
  • Not contain a termination clause which would result in the temp employee being able to be dismissed prior to the end of the contract term (except in the case of breach of contract, such as serious misconduct).

And if you employ foreign workers…

Please read this excellent article by K&L Gates (sponsors of HR@Work):

http://www.klgateshub.com/details/?media=1c8e124b-d83a-41ac-a109-02edc1eab233

Casual: Workpac decision

As you are no doubt already aware, the Federal Court has “tested” the term casual employment in Workpac v Skene, determining that a casual employee was not a true casual and therefore entitled to leave entitlements. This has resulted in an outcry from employers and turning into (yet another) windfall for lawyers who are reportedly establishing class actions to claim underpayments for employees “wrongly” employed as casuals. This finding was made despite the applicant signing a “casual contract of employment” and being paid 25 percent casual loading.

Apparently, Workpac has decided not to appeal, and we have yet to hear from the law-makers on any changes to the FWA. Not helpful.

Much was made of the definition of a “casual” employee for the purposes of the NES in the context of no statutory definition. The Full Court rejected WorkPac’s construction as it related to the definition within the Agreement (and more broadly, applicable industrial instruments) in favour of a legal construction involving consideration of individual factual circumstances against a number of indicia established by case law – similar to the way Courts assess independent contracting arrangements.

The factors in WorkPac that the Court found weighed against casual engagement of Mr Skene included the fact that:

  • Mr Skene’s employment regular and predictable – with 12 hour shifts on a designated “crew” being set 12 months in advance for a roster of 7 days on and 7 days off.
  • The company facilitated, at its expense, a fly-in, fly-out arrangement with accommodation for Mr Skene.
  • There was a plain expectation as to Mr Skene’s availability on an ongoing basis.
  • The work undertaken was not subject to significant fluctuation.
  • It was not open to Mr Skene, in the circumstances, to accept or reject an offer of assignment.

The Court also noted that Mr Skene was paid a “flat rate” of pay which did not specifically provide that the rate was inclusive of a casual loading.

Without any definitive statutory definition of a casual employee, WorkPac makes it clear that specific circumstances will be relevant in determining whether an engagement is reflective of casual employment, balancing considerations relating to contractual documents and work arrangements.

Implicit in the reasoning in WorkPac is that the overriding consideration will be the nature of the engagement as it relates to work performed – ie hours, rostering arrangements etc – over considerations relating to pay rates inclusive of loading and contractual documents specifying that the basis of employment was casual. This may have a significant impact on a number of employees across a number of industries.

This may also impact employers with enterprise agreements that cover casual employees and the future negotiation of agreements.

The Full Court also detailed the other entitlements in the NES that casual employees are not entitled to, which could also form the basis of claims that may arise in the future.

Employers should still carefully consider the engagement of casual employees in the workplace, including by having regard to the following:

  • Classification as a casual employee in an employment contract or an industrial instrument is not determinative.
  • Regular / predictable roster patterns and hours of work are likely to weigh against the argument that an employee is engaged on a casual basis.
  • Rates paid to casual employees should clearly specify that the rate makes provision for a casual loading and the entitlements that loading is paid in lieu of.

Casual: Entitled to Redundancy

In Unilever Australia Trading Limited v AMWU. (C2018/1367) [2018] FWCFB 4463, the Full Bench of the FWC upheld appeal that resulted in casual employment being counted for redundancy pay purposes.

[This was an appeal against decision ([2018] FWC 1150) of Deputy President Gooley in matter number C2017/1089].

Casual: Unfair dismissals

The FWC has defined casual employment over many years. Casuals are exempt from claiming an unfair dismissal unless they work on a “regular and systematic basis”. And I suspect that previous decisions of the FWC relating to unfair dismissal decisions will be used to formerly define a casual employment clause in the NES of the FWA (to defuse Workpac). The following decision summarises the FWC’s view to casual employment and “regular and systematic” employment.

Janell Hansson v Bronze Hospitality T/A The Harbour Terrace. (U2018/6613) [2018] FWC 5665. Wilson, C. 18 September 2018 – which quoted a number of citations.

  • The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.
  • As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement.
  • Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa.
  • The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.
  • Service rendered under a series of separate casual employment contracts may be regarded as continuous in respect of statutory entitlements such as long service leave, certain entitlements prescribed under the National Employment Standards and accident compensation legislation, and for the purposes of assessing whether a particular employee had been engaged for the minimum employment period for the purposes of making an unfair dismissal remedy application under the Act. But such recognition of casual service does not alter the fundamental contractual character of regular casual employment as a series of engagements, each under a separate contract of employment.
  • Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment. In particular, a period of continuous service is not to be seen as broken by a period of “leave” or an absence due to illness or injury.
  • It is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.
  • The term “regular” should be construed liberally. It may be accepted that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”.
  • The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.
  • It is clear from the examples that a ‘regular … basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.
  • Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan.
  • Hours varying from week to week does not lead to an inevitable conclusion that that the casual employment was not regular or systematic.
  • To establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.

Casual: Conversion to permanent employment

The Fair Work Commission FWC), as part of its four-yearly review of modern award, has decided that a standard clause be inserted in awards that provides for casual employees (subject to some rules) to request being made permanent.

This new clause will apply from 1 October 2018.

The new clause will give casual employees the right to request that their employment be converted to full-time or part-time employment if, for the preceding 12 months, they have worked a pattern of hours on an ongoing basis, which without significant adjustment they could continue to work as a full-time or part-time employee.

Conversion to permanent employment is not automatic however, and an employer may refuse the request to convert, but only on reasonable grounds after consultation with the employee.

Reasonable grounds for refusing the request may include that:

  • It would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of the relevant award – that is, the casual employee is not truly a regular casual employee.
  • It is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months.
  • It is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months.
  • It is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

This list of reasonable grounds is not exhaustive and other matters may arise which makes it reasonable to refuse an employee’s request to convert.

Under the new clause, an employer must not engage, re-engage an employee, or reduce a casual employee’s hours of work in order to prevent the employee from being able to make the conversion request.

The Model clause is attached as Appendix “A”. Noting that each award may contain subtle changes.

A template letter which has been approved by the FWC is attached at Appendix “B”.

Action required:

  • Casual employees must be given a copy of the new clause within the first 12 months of their employment, or if already engaged, by 1 January 2019.
  • Employers should also be planning whether casual employment (given Workpac) is the most appropriate method of engagement.
  • A system should be implemented that alerts the employer of a casual employee reaching 12 months of service. It can then be assessed on a case-by-case basis.

Beware of employing labour hire casuals

Ricky Taulapapa v Toll Personnel Pty Limited. (U2018/6243) [2018] FWC 6242. Cambridge, C. 16 October 2018.

  • This matter relates to an unfair dismissal case involving a labour-hire employee that was subsequently employed by the labour-hire company’s client. Specifically whether the time worked with labour-hire employer, counted towards service when employed by the new employer. If the Commission found that the service did count, the applicant would have satisfied the minimum of six months service threshold (ie minimum employment period) to enable the unfair dismissal application to proceed.
  • The Commissioner relied on the unfair dismissal and Transfer of Instruments division of the Transfer of Business provisions of the FWA; finding in favour of the applicant (ie the service of the labour-hire company counted towards service with the new employee) to enable the unfair dismissal application to go ahead, relying on the “regular and systematic…with an expectation of ongoing employment” casual employment definitions, plus interpreting the Transfer of Business definitions contained in the FWA.
  • Whilst raised by the applicant’s representative, the Commissioner did not seem to consider that the simple solution that would have stopped this application in its tracks:
  • “…the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised”.

Lesson: when taking on personnel previously engaged by your business (or associated entity) from a labour-hire business, ensure that the letter of offer stipulates that any previous employment will not be recognised for any and all purposes.

Casual Service NOT counted for redundancy pay

Unilever Australia Trading Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2018] FWCFB 4463, (C2018/1367). Full Bench: Catanariti, VP; Colman, DP, Wilson, C. 30 July 2018.

This is a precedent setting full bench decision of the Fair Work Commission, which has categorically found that casual and seasonal employment does not count towards redundancy pay. This decision does not count where an employer, at it its own volition, has a written policy providing that such service shall be included when calculating redundancy pay.

The main statements to consider in the decisions are:

“Casual and seasonal employees render service. In relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next. Such is the case also with seasonal workers, who render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next. The common law position can of course be altered by statute, contract, or an industrial instrument.

 

And:

 

“…casual and seasonal employees would not ordinarily be entitled to payment of redundancy benefits anyway. The employer could simply not reengage casual employees; there is no need to make them redundant. The position is similar in relation to seasonal employees; ‘redundancy’ occurring at the end of the season would simply mean that the employer would not reengage the person for the following season…”

Casual Engagement (summary)

It is becoming evident that the courts (and FWC) are taking a historical approach to casual employment. Casual engagements should be carefully managed:

  • Better used for ad-hoc employment (ie employed to fill short-term needs).
  • The 25% loading should clearly be stated that it is paid in lieu of annual leave, personal leave and public holidays not worked.
  • Casual employment may be used in calculating redundancy payments.
  • Employees of a labour-hire companies that your business had used as supplementary labour, if subsequently employed may claim service all time worked with your business despite being employed by a third party.
  • AND there is a huge question-mark over the ability for client companies of labour-hire firms to use the labour-hire firm to avoid the legal consequences that come with employment.
  • AND what do you do if the FWC orders reinstatement and you are not the true employer?

Temporary Engagement

Magdalini Nesci v The Playford Hotel T/A The Playford Hotel Pty Ltd. (U2018/5809) [2018] FWC 5777. Platt, C. 14 September 2018. Platt, C. 14 September 2018.

Application for an unfair dismissal remedy – jurisdictional objection – employment ceased as a result of expiration of fixed term contract – contract contained term permitting termination before expiry – not a fixed term contract within meaning of s.386(2)(a) – jurisdictional objection dismissed.

The employment contract, under the paragraph heading “Contract of Employment” makes it clear that the employment was for a fixed period ending on 2 July 2018. The issue is whether the reference in the preceding paragraph which provides “Throughout this period of time, either party may terminate this contract of employment with one week’s notice” has the effect of preventing the characterisation of the contract as a fixed term.

 The case law on this issue is well established. In the decision of Andersen, von Doussa J held:

“A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the regulation. A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time”.

“In the present case the Employment Agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right of either party to the contract to bring the employment to an end on two weeks’ notice, and the right of the employer to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run. The period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.”

Similarly in Cooper v Darwin Rugby League Inc, Northrop J held:

“The clause headed “Notice of Termination” appears to give either party the right to terminate the employment on notice at any time during the three year period. This conclusion follows from the fact that the clause excludes termination in the case of misconduct where the employer terminates the employment “in accordance with the clause relating to the Employment Period in” the contract, but provides for termination of either party by notice. In the context, this must relate to notice given within the three year period. There is no reason to suggest that this clause is limited by implication to apply to any extension of the employment period after 10 December 1995. In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time…”

A Full Bench also considered this issue in the case of Dale v Hatch Pty Ltd, where it was held:

“There is one other aspect of the Contract which requires comment. Clause 27 of the Contract provided, among other things, that Ms Dale’s employment could be terminated by Hatch without cause on one week’s notice during the probation or minimum employment period and on four weeks’ notice thereafter. In relation to employment contracts for a specified time, it was held in Andersen v Umbakumba Community Council…that an employment contract will not be one for a specified period of time if it gives either party an unqualified right to terminate the contract on notice or with payment in lieu of notice within any specified term. The basis for this proposition is that a specified period of time is a period of employment that has certainty as to its commencement and time of completion, and where a contract provides a broad or unconditional right of termination during its term, the period of the contract is indeterminate and thus not for a specific period of time.”

Fixed term contracts, by their very nature, are intended to give both parties certainty in relation to the date of commencement, duration of the employment relationship and the completion date. The inclusion of a termination provision within a fixed term employment contract destabilises this certainty which explains why the Courts and the Commission have found that the inclusion of such provisions prevents the contract being properly described as a fixed term contract.

That the period of time in which the contract allows for the employment to be terminated by one week’s notice is unclear. The period of time could be a reference to the probationary period of three months, or the minimum employment period or indeed the entirety of the contract. Regardless of which of these propositions is correct the effect of the provision is that the employment contract is not for a fixed term but for an “outer limit” with the potential for it to be terminated earlier with one week’s notice. That the contract permitted either party to terminate the contract with one week’s notice results in the contract not being correctly characterised as a fixed term contract.

Specified task

Michael Newton v Lend Lease Engineering Pty Ltd. (U2018/7514) [2018] FWC 6385. Saunders, C. 16 October 2018.

This decision provides excellent guidance to what constitutes being employed for a “specific task” for the purposes of an unfair dismissal application.

Whilst the Commissioner found in favour of the Applicant, the total award was a mere $728.62 less tax (Legal costs were not incurred as the applicant was represented by his union and the respondent was self-represented), the decision was very thorough in its findings, including the emphasis that the FWC has no jurisdiction for claims for non/underpayments:

“I do not consider that the unfair dismissal provisions of the Act should be used as a substitute mechanism for the recovery of monetary entitlements under the Act or an industrial instrument. If Mr Newton believes he has an entitlement to redundancy pay, then he can make an appropriate application to a relevant court for the recovery of such an entitlement”.

In terms of being employed for a “Specific task”, the decision gave the example of:

“Although contracts for a specified task, such as erecting the framework on a house, will likely be for an uncertain duration (due to weather etc.), an employee working on such a task can monitor progress of the task and readily understand the scope of the work they have remaining on the project”. [My emphasis].

In this matter, the application for unfair dismissal remedy by a civil construction roller driver/labourer working on a specific road project. The Applicant was employed on a contract of employment that stated:

“If, at the end of your engagement, you are not offered, or you do not accept, a new engagement, your employment will be terminated in accordance with the Agreement.

“Your employment may be terminated prior to the end of the engagement by either party in accordance with the Agreement.

“Duties and Reporting

“You will be located at the Richmond 2 Ballina project and report to Paul Bull, General Superintendent.

“For the duration of your employment, you will:

“Perform any duties or tasks that the Company directs you to carry out to the best of your skills, competence and training and with reasonable care and diligence. This may include, but is not limited to the duties, task, or roles contained in any job description that is in place for your position…

 

“The Company may also vary your duties provided the variation is reasonable, in accordance with any applicable provisions of the Agreement and the duties are within your skills, competence and training. Depending on management needs and any applicable provisions of the Agreement, you may be required to rotate to different sections and roles throughout your project…”

The Commissioner commentary on the contract of employment was far from complimentary:

“It is clear from the ‘Engagement’ term of the Contract that Mr Newton was not assured employment throughout the whole of the time that Lendlease was engaged on the R2B project. Instead, the Contract states that Mr Newton’s engagement would “end either when the project concludes, or the work for which you are employed on this project concludes”. [My emphasis].

Concluding:

“…the Contract is vague as to how long Mr Newton may be employed on the R2B project. In particular, the Contract permits Lendlease to unilaterally decide, at any time convenient to it and without prior notice to Mr Newton, that the work for which he was employed on the project has concluded”. [My emphasis].

The decision contained numerous citations, which I will summarise:

  • “Task” is a piece of work to be performed or undertaken.
  • It must be the task of the employee, not the employer.
  • “The words “for a specified task” qualify the words “contract of employment”. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words “for a specified task” have nothing to do with the employer’s task, or project.
  • The task must be “specified” – that is, identified in definite terms. In a written contract of employment, it could usually be expected that the task would be identified in express words, although it is not impossible to conceive of a case whereby the task might be specified as a matter of necessary implication. Further, the relevant contract of employment must be “for” the specified task, meaning that it has been entered into for the purpose of the performance and completion of that task.
  • The task be sufficiently definite in its nature and delineation such that identification of when the task is completed is not a matter of doubt or speculation or contingency but is clear and predictable.
  • A contract for a specified period terminating at the end of that period, or for the duration of a specified season terminating at the end of the season – likewise involve the termination of employment occurring at an identifiable time or upon an identifiable event.
  • For the purpose of the phrase ‘specified task’ the term ‘task’ has not the same meaning as a role, job or project which the employee is engaged to perform. A “role”, as a matter of the ordinary meaning of the term, usually involves a collection of work duties and functions required to be performed on an ongoing basis for an indefinite period of time. It does not usually involve the completion of a discrete piece of work.
  • A further example of a “specified task”: an employee engaged to personally develop a piece of software for cash registers for an employer with no software expertise was held to have been employed under a contract of employment for a specified task [as it]:
    • A piece of work imposed on or undertaken by a person.
    • A definite piece of work assigned or falling to a person.
    • Any piece of work.
  • Returning to contractual wording:

“[An] employee has been engaged under a contract to perform a project or job which is distinct or identifiable in its own right. The task to which the original employment contract relates should be self-contained and not leave open the possibility of the employee performing any work outside the realm of the specific task for which the employee is being employed”.

  • Using an example of a labour hire company (“Recruitco”):

“That case involved a casual employee of a labour hire company who was assigned to work for a particular client (a retail grocery distributor) and did so, on a regular and systematic basis, for a period of over six years. The employee claimed his employment with the labour hire company terminated when the client informed the labour hire company his assignment was terminated. This occurred after some absences from work by the employee, alleged to be unauthorised, due to the birth of his child. The following conclusion was stated in that decision.

“We cannot, with respect, accept that an employment contract to perform work of an ongoing and generic nature for a third party client until that client no longer requires the person to perform the work constitutes an employment contract for a specified task. There was no identifiable or distinct piece of work that was required to be performed or any specific result required to be achieved. The facts did not suggest that the employee had completed any particular piece of work or even that the work performed by the employee was no longer required to be performed when the assignment was terminated, but only that

  • A “position” is not the same thing as a “task”, particularly in circumstances where the Contract permitted Lendlease to direct Mr Newton to perform “any duties or tasks”. Further, the Contract permitted Lendlease to unilaterally determine, at any time, when the work for which Mr Newton was employed on the R2B project had completed. Lendlease did this by deciding in June 2018 that it no longer needed Mr Newton to work on the R2B project as a Labourer and/or Roller Operator, notwithstanding that such work was continuing to be done on the R2B project by other Lendlease employees. In this way, identification of when the “task” for which Mr Newton was employed would be, or had been, completed was not clear or predictable, but was a matter of doubt and speculation on Mr Newton’s part. For these reasons, Mr Newton was not employed under a contract of employment for a specified task.
  • A task is one which is completed when the employee finishes the work involved in it.
  • Mr Newton’s employment with Lendlease did not end because he had completed any particular task.

“Rather, Lendlease decided to bring Mr Newton’s employment to an end because it had completed about 85% of its bulk earthworks…and it did not require as many Labourers or Roller Operators working on the project to complete it. Lendlease did not employ anyone else to replace Mr Newton’s role…Lendlease made a no doubt commercially sensible decision that it no longer required as many employees working…so it abolished the roles of a number of employees on the project…”

Labour Hire firms not immune from unfair dismissal claims

Two recent decisions, firstly a full bench appeal of the FWC which upheld a $15,000 award, and secondly an injunction allowed by the Federal Court of Australia involving Workpac (yes, the same company that was party to Federal court case awarding annual leave to a casual employee) ordering a labour hire employee to be reinstated to a client’s site.

The take home message, being put by the FWC and courts is that it is incumbent on labour-hire firms to ensure that due process is followed when concluding an assignment. This may include an alteration to contractual terms between the labour-hire company and its employees, and the labour-hire company and its clients. Read on…

In the first matter, Spinifex Australia Pty Ltd t/a Spinifex Recruiting v Patrice Tait (C2018/3537), the Full Bench upheld the original decision and was very informative in its findings.

In short, Spinifex’s client was unhappy with the attendance and performance of the placement and requested that the placement be removed and replaced. Ms Tait had been on temporary placement through Spinifex and had on foot a contract that stated (in part):

“1. My employment with Spinifex Recruiting is as a temporary on an assignment by assignment basis, with each assignment constituting a discrete period of employment. I may accept or reject any offer of an assignment from Spinifex Recruiting. On completion of an assignment, whether satisfactory, or otherwise, Spinifex Recruiting is under no obligation to offer me further assignments.

  1. I understand that Spinifex Recruiting’s customer (not Spinifex Recruiting) controls the length of any assignment and I accept that whilst Spinifex Recruiting may indicate to me in good faith the potential length of an assignment with a customer, the customer may vary the length of an assignment period or terminate my attendance at an assignment at their absolute discretion. I agree to notify Spinifex Recruiting without delay if I am informed by the customer of the completion date of an assignment.
  2. I accept that I am under care, control and supervision of Spinifex Recruiting’s customer during the period of any assignment. In regard to defined working arrangements and the manner in which and the degree of proficiency at which my work is to be performed, I acknowledge the rights of Spinifex Recruiting’s customer to direct my work activities.”

The decision was also critical of the contractual arrangements that may apply between a labour-hire company and its clients stating:

“[48] Where managers of a host employer inform a labour hire employee that he or she is to be removed from site on the basis of conduct, capacity or work performance, the actions of the host employer may be tantamount to dismissal. This is particularly so where managers or supervisors of the host employer have also been involved in disciplining the labour hire employee. A labour hire employee seeking to contest such action by making an application for an unfair dismissal remedy, faces considerable difficulty, principally because the host employer is not the employer of the labour hire employee. It is also the case that a labour hire company may face considerable difficulty preventing a host employer from taking disciplinary action against an employee of the labour hire company.

“[49] However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and their consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the direction of another entity in effecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal.” [Emphasis added].

In turning to the contractual arrangement between the labour-hire company and the client, the FB determined:

“If, for example, the labour hire contract permitted the host employer to request the removal of a worker only in the case of proven misconduct or non-performance of duties, entirely different considerations would arise. In that case the labour hire employer would have the contractual right to resist the removal of a worker by the host employer where substantiation of any allegation of misconduct or non-performance was not forthcoming. If, notwithstanding this, the labour hire employer simply acquiesced in the removal of the worker and proceeded to dismiss him or her, it is difficult to imagine that such a dismissal could be justified on the basis of the worker’s incapacity, since the inability of the worker to continue working for the host employer would be the result of the labour hire employer’s failure to insist upon compliance with its contract with the host employer rather than any incapacity on the part of the worker. [Emphasis added].

And in quoting another case:

“…the labour hire employer simply acquiesced in the host employer’s contention that the worker had engaged in misconduct without forming any independent view about whether this allegation was substantiated…” [Emphasis added].

The FB became particularly scathing, stating:

“…We agree with the Senior Deputy President when he said the appellant hid behind the terms of the [agreement] when deciding to dismiss the respondent.

“We consider it would be a perverse outcome, were it to be the case that an otherwise unfair dismissal cannot be so described because of technical manoeuvrings over the true nature of the employment relationship and the circumstances giving rise to a dismissal…” [Emphasis added].

Commentary

It is abundantly clear that FWC’s view of labour-hire arrangements can be questionable. As employers, labour-hire companies must ensure that when removing an employee from a client that there is a valid reason and procedural fairness is applied.

In the second (Federal Court) matter (Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590) found:

“…until the hearing and determination of this matter or further order, the respondent, by itself, its servants or agents, be restrained from excluding or otherwise preventing Kim Star from attending the Goonyella Riverside Mine to perform work there on behalf of WorkPac Pty Ltd pursuant to the labour hire contract between the respondent and WorkPac Pty Ltd.”

By way of background:

  • Ms Star was employed by WorkPac as a casual machinery operator.
  • The mine was owned and operated by BMA.
  • Ms Star was engaged in accordance with a regular roster, and she worked a rotating roster across fourteen days out of a 28 day cycle.
  • During the time Ms Star worked at the mine, no issues were raised in respect of her performance by either BMA or WorkPac.
  • Ms Star alleges that she was required to drive a truck on a lamp without lights and then to dump loads of rocks, and because this was hazardous she requested that lights be provided. There was interaction between BHP supervisors and Ms Star in respect of the lights issue, and she assumed it had been resolved. Ms Star was required then to undertake a random mid-shift drug test which had previously been arranged, finished her crib break, and then completed her shift without incident.
  • Ms Star spoke with WorkPac who told Ms Star that her services were no longer required by BMA and that Ms Star was being “demobilised”. WorkPac professed lack of knowledge of why this was the case.
  • Ms Star was subsequently contacted by Thiess to work at another BMA coal mine. She commenced working in her new role on 27 November 2017. In her new role, however, she rarely sees her partner because of different shifts.
  • Ms Star filed an unfair dismissal claim against BMA under the FW Act, seeking orders for reinstatement to her job with WorkPac.
  • The Fair Work Commissioner issued a reinstatement order. As a result Ms Star resigned her employment with Thiess. WorkPac did not reinstate Ms Star, advising her that BMA would not allow her back into the mine.
  • Ms Star has taken up a role with Mackellar Mining, and, although the earning are approximately the same, she will not be able to live in the same house as her partner while she is rostered to work because of the location of her new employment.
  • There are a number of objective facts which support the inference that BMA acted for a prohibited reason, including that no reasons were given by BMA in respect of its decision to exclude Ms Star from the mine, there had been no performance issues in relation to her work during her four years there, the decision to exclude Ms Star came only a few hours after she exercised a workplace right, and, after being informed of the decision of the Fair Work Commission that Ms Star had been unfairly dismissed and reinstated to the mine, BMA continued its exclusion of Ms Star without providing any reason for its position.

As the Judge put it:

“…the only inference I am able to draw from the material before me is that, for unknown reasons, [BMA] does not want Ms Star to return to work at the mine. This apparent, unexplained preference of [BMA] can be contrasted with the personal detriment deposed to by Ms Star. In this respect, the applicant substantiates its case for interlocutory relief.”

In the “unfair dismissal decision, Ms Kim Star v WorkPac Pty Ltd T/A WorkPac Group (U2017/12786), leading to the Federal Court injunction, the Commission foreshadowed the difficulties in forcing Workpac, as a labour-hire company, imposing its employees on a client:

“While expressing a provisional view that I would order reinstatement if it was pressed by Ms Star, I indicated (in summary) that I had reservations about whether reinstatement is appropriate in circumstances where WorkPac has no right to insist that BMA give Ms Star access to its site and that subject to BMA making reasonable attempts to persuade BMA to the contrary, Ms Star could be placed in a position where her incapacity to work at that site was a valid reason for dismissal at a future time.” [Emphasis added].

Justifying the decision by:

“…reinstatement will place Ms Star in the position that she held immediately prior to her dismissal – Mine Worker Level 3 at the Goonyella Riverside Mine. WorkPac will then be in a position where it can take the steps it should have taken prior to dismissing Ms Star including making reasonable attempts to ascertain the reason for the directive from BMA to remove her from the Mine site and establishing whether provisions of the contract between WorkPac and BMA in relation to unsatisfactory performance by WorkPac personnel applies in Ms Star’s case.”

Commentary

The FWC fundamentally washed it hands of the problems, subsequently placing Workpac in an impossible position – a position the FWC knew would occur if reinstatement was ordered.

In fact, the decision has caused further litigation, with the refusal of the client to agree with the order, which in turn has led to the applicant resigning another position.

The applicant (in the Federal Court) claims that an “adverse action” has taken place. This is confusing because (in my mind) this would be “double-dipping” as this involves a separate claim under the Fair Work Act – the original claim being for unfair dismissal.

Note: On 2 October 2018 Workpac filed an application in the Fair Work Commission seeking to vary the reinstatement order, and on 4 October 2018 Workpac appealed the Fair Work Commission decisions. Watch this space!

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.

 

 

Dutta v Telstra Corporation Limited [2018] FCA 1994, Rangiah,J. 13 December 2018

There is a growing tactic by (usually) no-win, no-fee lawyers to prosecute employers through the “Protected/adverse action” provisions of the FWA. This is usually a ploy to circumvent the requirements of the other sections of the Act – including unfair dismissals. It also places the onus on the employer, with the options being to settle the claim by paying money to the applicant, voluntary arbitration (why would you?) or (as in this case progression to the Federal Court or Federal Circuit Court).

 

This is a matter where a very persistent employee would not take “no” for an answer. Telstra (being a large corporate) could afford to stick its guns. Why not? It’s processes and selection criteria for choosing who was to be made redundant was solid, with the applicant arriving at several misconceptions – and out to prove his point.

 

It is an unfortunate fact, that to get to this point was extraordinarily time consuming and costly for Telstra. This why most businesses “settle” at the conciliation phase, to put an end to the matter. This in turn is what the no-win-no-fee lawyers rely upon as their business model.

 

It is my view that the Protected Action provisions of the FWA be rescinded, as there a numerous other pieces of legation that protect workers from “harm”.

 

The Judge in the matter described such claims as follows:

 

“Mr Dutta’s case…requires him to demonstrate, firstly, that Telstra took “adverse action” against him and, secondly, that he “exercised a workplace right”. If he is able to do so, it is presumed…that the adverse action was taken because Mr Dutta exercised the workplace right. Telstra will then be required to prove that it took the adverse action for reasons that do not include that Mr Dutta exercised such workplace rights. Telstra must prove that any such exercise of workplace rights was not an “operative or immediate” or “substantial and operative” reason for the adverse action”.

 

This means that the FWA’s so-called reverse onus of proof does not exonerate the applicant from making their case.

 

In this case, the applicant was chosen for redundancy through an extremely lengthy and thorough process, mandated by an EBA and a written policy. The applicant fought every inch of the way through internal appeals and complaints but was ultimately made redundant.

 

In his application to the FWC and ultimately the FCA, the applicant accused Telstra of:

 

“I have been dismissed from Telstra as revenge attack by my Superior Bruce Gessey. My crime was to rise up and complain about him last year for sufferings, isolation and Bullying after one incident in Dec 2015. His Dictatorship Management style was further supported by Telstra HR while dismissing me on False Assessment done in Jul 17. I was given lowest rating by my superiors to make me forcibly redundant…”

 

Asserting:

 

“In 2014, Mr Dutta commenced working for Mr Bruce Gessey, an Executive at Telstra.  During this period working for Mr Gessey, Mr Dutta suffered a mental and physical breakdown due to bullying, isolation and discrimination.  After two and a half years working for Mr Gessey, Mr Gessey approved Mr Dutta being forcibly made redundant.”

 

The Judge “translated” this to means that, Telstra, through Mr Gessey and other managers, took adverse action against Mr Dutta by:

 

  • selecting him for redundancy;
  • blocking his redeployment to another position within Telstra;
  • dismissing him from his employment;
  • discriminating between him and another employee by telling him the wrong process for a task, but telling the other employee the correct process;
  • bullying, harassing, targeting and isolating him, resulting in injury to his mental state.

 

The adverse action was taken because Mr Dutta exercised his workplace rights to make complaints and initiate a process under the Act by:

 

  • making a complaint against Mr Gessey;
  • making a complaint in a Telstra employee internet forum;
  • making a complaint about his immediate manger, Stanko Zivcic;
  • requesting flexible working arrangements.

 

The Judge’s found the applicant to have “some particular and distinctive personality traits” which affected his perception of the events and incidents he complains of at Telstra:

 

“First, he seems convinced that he must be right and seems unwilling to consider that any different point of view may be available.  Second, he is a stickler for rules and processes and seems quite disturbed by any suggestion that he might be asked to act outside what he perceives to be the rules or the appropriate process.  Third, he has a very literal understanding of what he perceives to be the rules, processes and instructions.  Fourth, he requires clear, precise and detailed instructions and is disturbed by the idea that he might have to improvise, investigate or work out for himself the processes that should be used.  Fifth, and associated with the first, is that where a manager corrects him, disagrees with him or instructs him to do something that he disagrees with, Mr Dutta tends to consider that the manager’s action must be done dishonestly and with an intention to injure him.

 

“Mr Dutta’s allegations of dishonesty, fraud and collusion are very serious and must undoubtedly be distressing to those who are the subject of the allegations.  In case I have not already made it clear, I wish to emphasise that I reject those allegations…Perhaps all that might be said to excuse Mr Dutta’s conduct in making such allegations is that he seems to be suffering from a psychiatric illness, and that may be influencing his perceptions and his conduct.

 

Whilst the Judge found that Telstra had taken adverse action against the applicant, the question to be answered was that has Telstra “overcome the presumption that it took that adverse action because Mr Dutta exercised such workplace rights”.

 

Following many pages of consideration, the Judge dismissed the application.

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.

 

Julia Bastoni v ORC International Pty Ltd. (U2018/6390) [2019] FWC 38. Clancy, DP. 4 January 2019.

 

Ms Bastoni (“the applicant in this matter) was a call-centre employee with eight year’s casual service. It was noted that she was a NUW union delegate. Cutting to the chase, the applicant was dismissed for inferring that her supervisor (which the DP chose to be to be identified as the “Complainant” due to the “personal and sensitive nature of the events”) did not feel the cold due to her “extra padding”. Her employer found that this amounted to bulling, in breach of its policies, and the applicant was subsequently dismissed.

 

Whilst not diminishing the hurt the “complainant” may have felt, should someone lose their livelihood over a one-off comment? Sensitivity training – but dismissal? Just asking…

 

Once upon a time on a cold Melbourne morning, a union representative on behalf of her constituents requested of the supervisor (aka “the Complainant”) that the heater be turned on. Said supervisor stated that she did not feel cold. The applicant responded that this was because the supervisor having “natural extra padding” so she did not feel the cold.

 

As to why she had made such comments, Ms Bastoni said:

  • She was trying to make an argument to get the heater turned on;
  • The Complainant had more padding than she and the others in the room at the time;
  • It is a scientific fact that people with more body fat do not feel the cold as much as skinnier people and that is perhaps why the Complainant would not have felt the cold like the applicant and the other colleagues were feeling it;
  • Her conception of someone having “more body fat” was that they have more body fat than is healthy;
  • The comments were not personal, and she did not intend to hurt the Complainant’s feelings;
  • She meant padding in terms of insulation and she did not mean to be derogatory;
  • She did not think the Complainant would be so offended or take the comment so seriously given the context of their relationship; and
  • She felt the Complainant would see the humour in her comments and did not intend to shame her.

 

On the other hand, the Supervisor stated that she was anxious, upset and humiliated by the applicant’s comments referring to her having “extra padding” and “natural extra padding” as she was concerned that other people nearby had heard the exchange.

 

The DP in this matter, held a contrary view deeming the employer took the appropriate action in dismissing the employee (of eight years’ service), stating:

 

“I regard [the applicant’s] behaviour as being completely disrespectable and unacceptable. I am satisfied her dismissal was not a disproportionate outcome in response to cruel, insulting and demeaning comments”.

 

Oh, in case you were wondering – the heater was turned on.

 

Note: As we all know by now, it is a requirement to allow a support person to attend (eg) disciplinary meetings. The Deputy President stating in this matter:

 

“There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

 

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [Explanatory Memorandum, Fair Work Bill 2008].

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.

Mr Jordan Lamacq v Smerff Electrical. (U2018/5137) [2019] FWC 181. Asbury, DP. 14 January 2019.

 

Mr Hickey is the managing director of a small electrical company. The applicant was a first-year apprentice.

 

Mr Hickey had a belief that a former employee had stolen from him in relation to a fuel card and a cash job (ie a job that “off-books” for the company). Evidence was provided that it was common practice for Mr Hickey to allow employees to fill their own personal vehicles using the fuel cards; whilst cash jobs were permissible insofar that Mr Hickey approved them.

 

MR Hickey was of the belief that a former employee did a cash-job without his permission and provided the applicant with an ultimatum to provide with the ex-employees new work details by a certain date. Mr Hickey, having found the street in which the cash-job was carried out, proceeded to door-knock each of the premises in that street in an attempt to find out which was the one the cash-job had been carried out.

 

Over a period of two days, there was an exchange of emails/texts between Mr Hickey and the applicant. I cannot put these into print as they would most likely be rejected by your email filters. The information can be found using the following link and reading paragraph 35 onwards:

 

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc181.htm

 

Mr Hickey also had issues with the FWC’s process:

 

“No conciliation is possible. Jordan [Lamacq] will not be re-employed. He will not get any money. And neither will this organisation. I will not enter into any conciliation and I will not waste an hour filling out these forms UNTIL somebody investigates the theft by Jordan and … of which I have enough evidence to convict … 3 times over and I think enough to convict Jordan…Jordan is a thief. When somebody starts an investigation into the theft then I will participate in this charade. Until then you get nothing. I will answer your call but don’t Expect any effort to participate. Jordan is a thief…”

 

And:

 

“Oi I am not seeking an adjournment this is not a court. I will not be there. The thief can have his day I don’t care but it won’t be the 15th. Pick another day after the 18th and I may or may not show then depending on whether someone has investigated his theft or not.”

 

He also referenced the FWC: “court/tribunal/whatever you call this event”.

 

And when he file the required form, it contained the reason for the dismissal as:

 

“…serious misconduct based on his fraudulent misuse of company property and failure to carry out a lawful and reasonable instruction that was consistent with his employment contract”.

 

The contract referred to contains various clauses relating to use of company property and cash-jobs, and a novel clause, which the decision quoted:

 

The contract makes for interesting reading. In relation to wages it states at 5.1:

 

“You will be paid Weekly at the rate of $15 per hour. If you are unhappy with your wage, you can f**k off. Nobody is forcing you to work here.”

 

No conciliation conferences were held, and the matter went straight to a “determinative conference” as neither party was represented.

 

Mr Hickey sought a number of adjournments because he needed more time:

 

“…to file additional material on the basis that he was defending a number of charges associated with installing security equipment without a permit and using a carriage service to offend “terrorist wives”. Mr Hickey also asserted that various pieces of computer equipment that he required to defend [the applicant’s] application had been confiscated by Police.

 

“Mr Hickey included links to Smerff’s website to evidence his need for an extension of time in which to file his material. The website gave every indication that Mr Hickey (who refers to himself as the “Nazi Sparky”) had gone to great effort to create and post a wide range of offensive material despite the alleged confiscation of his computer equipment”. Emphasis added.

 

The FWC adding:

 

“Mr Hickey said in response that the information posted on his website represents fair and accurate reporting as he sees it. Mr Hickey also said that prospective employers of [the applicant] are free to call him for a reference. It is the case that Mr Hickey’s website (to which he emailed me a link) contains various derogatory posts about persons who have offended Mr Hickey including a number of Queensland Judicial Officers and the former employee”.

 

Mr Hickey also used this time to threaten the applicant by email:

 

“[The applicant] tendered an email dated 20 August 2018 (also tendered by Mr Hickey) in which Mr Hickey stated that [the applicant] should google the name of the other dismissed employee and that:

 

“If you cancel your Friday extortion attempt [FWC proceedings] before close of business tomorrow I will refrain from publishing the [applicant] version. Do you really want my entry being number 1 of page 1 of google search results for [applicant]?…

 

I should include cash payment for my lost time as well, but I will settle for complete “abandonment of your extortion attempt by tomorrow afternoon or you will have your own page 1 like [former employee]. And I am not finished with him yet.”

 

Whilst arguing that the applicant was provided with a deadline to provide information being a “reasonable and lawful instruction”; the FWC had a decidedly different view, describing the communications by Mr Hickey to the applicant as “…threats and abusive commentary…”

 

Finding that:

 

“…Mr Hickey dismissed [the applicant] because he would not assist Mr Hickey in his pursuit of revenge against the former employee. While Mr Hickey believed that the former employee had been stealing from him, there was no basis for believing that [the applicant] was guilty by association of the same conduct.

 

“The manner in which the request for information was couched and the fact that there was also a request that Mr Hickey provide the address of the former employee’s new workplace, made it entirely reasonable that [the applicant] did not respond.

“However, any legitimacy about the issues that Mr Hickey may have raised with [the applicant] is lost by virtue of being couched in terms so offensive that no employee should be expected to endure such treatment. [Emphasis added].

 

And finding the dismissal to be unfair, the FWC turned its attention to compensation:

 

“In all of the circumstances I have concluded that [the applicant] would likely have remained in employment for a further period of twelve weeks. I make this finding with some difficulty. To find that [the applicant] would not have remained in employment for any lengthy period because of the appalling manner in which he was treated by Mr Hickey has the effect of limiting the amount of compensation that can be awarded to[the applicant] and rewarding Mr Hickey for that behaviour. However, on the basis of the evidence before me I cannot be satisfied that employment would have extended beyond the twelve weeks that I have determined”. [Emphasis added].

 

The applicant was awarded $11,400.00.

 

Commentary

 

Words fail me…

 

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.

 

Mr Matthew Boulton v Telstra Corporation Limited. [2019] FWC 370. (U2018/6378). Spencer, C. 25 January 2019.

 

The applicant in this matter was caught-out selling mobile phones in direct competition with employer – Telstra. This misconduct was discovered when one of his private customers complained of a faulty phone to the applicant’s manager.

 

In rejecting the application, the Commissioner found:

 

  • It is impractical for the Applicant to be reinstated, due to this lack of trust and confidence in him, and the employment relationship had irretrievably broken down.
  • The Applicant confirmed that he had been trained on the Respondent’s Conflict of Interest policy and that he conceded the conduct may give rise to a finding of a potential or actual conflict-of-interest.
  • Even though the applicant stated that the he was selling the phones outside of business hours there was a sufficient nexus with the Applicant’s employment, to bring the conduct within the employment sphere.
  • The Applicant’s conduct was directly non-compliant with the Respondent’s Conflict of Interest policy.
  • It was procedurally fair process.
  • The Applicant’s long employment history was taken into account.

 

Commentary

 

Have to a “Code of Conduct” which includes a “Conflict of Interest”. Also, this provision should be in all contracts of employment. Are your employees aware of these obligations? Have they been inducted?

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.

Chi Nguyen v  KDR Victoria Pty. Ltd. T/A Yarra Trams[2019] FWC 685. (U2018/3593). Gostencnik, DP. 6 February 2019

 

The applicant is 73 years of age and has been a tram driver for nearly 40 years with a bad back. He also has a personal leave balance of 19.5 weeks at the time of the dismissal.

 

All rail workers are covered by legislation, that requires that they are “of sufficient good health and fitness to carry out that work safety; and [are] competent to undertake that work…” This legislation has also detailed physical and mental capability criteria.

 

In summary, this matter turned on the evidence provided by the Yarra Trams’ medical advisors. Overall, the DP found the medical evidence to be conflicting in its process and form, with the fundamental basis of whether the applicant was “Permanently Unfit for Duty”. The applicant was dismissed on these grounds having suffered back complaints since 2010.

 

It should also be noted that [in my humble opinion] this case was run more like a court of law than a hearing held in the absence of such legal restraints and solemnity – with Yarra Trams being represented by a Senior Counsel and the applicant (presumably at the union’s expense) counsel. Ie, lots of “I put to you’s” and “so you say’s”.

 

Following pages and pages of questioning of the medical “experts”, the applicant’s counsel was able to convince the DP that the medical evidence should not be relied as there was some inconsistency established, with the DP concluding that the dismissal was unfair:

 

“First, the Applicant has a good disciplinary record, although in the circumstances of this case, involving a dismissal for capacity, this weighs marginally in favour of the Applicant;

 

“Secondly, the Applicant has a substantial period of employment. The Applicant served the Respondent for nearly four decades. His length of service warranted a more thoroughgoing consideration of his circumstances than the Respondent afforded;

 

“Thirdly, at the time of his dismissal the Applicant was 73 years of age and given his particular experience obtained during nearly four decades of service it must be said it will be a difficult prospect for the Applicant to obtain alternative employment. The impact of the decision to dismiss, given his age and taking into account the possibility of regaining fitness for duty ought to have weighed more heavily in the decision whether to dismiss the Applicant;

 

“Fourthly, the amount of sick leave and accumulated leave the Applicant had at the time of dismissal given the state of medical evidence speaks to the necessity of dismissal at a time when the medical evidence was, at best, conflicting; and

 

“Fifthly, there is no evidence of any consideration by the Respondent of mitigating the affects of the musculoskeletal condition by way of job modification or adjustment. Some of these are set out in the functional assessment”. [Emphasis added].

 

Whilst the DP “hinted” at the prospect of reinstatement, he left it to parties to work out a mutually acceptable outcome based on his findings. If this were not to happen the DP would reconvene and make a finding.

 

Application for an unfair dismissal remedy; whether there was a valid reason for dismissal; whether Applicant was permanently unfit for duty; notification of reason and opportunity to respond; dismissal unfair.

 

Commentary

 

The only advantage in dismissing this employee was (maybe) reduce negative reporting stat’s on absenteeism and any saving on the 19.5 weeks sick leave would have been well eroded by the used of senior counsel and expert witnesses.

 

Perhaps, a career counsellor might have been a better first step?

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.

 

Mr Craig Symes v Linfox Armaguard Pty Ltd T/A Linfox Armaguard. [2018] FWC 7142. (U2018/4510). Asbury, DP. 13 December 2018

 

In a matter that could be a script for comedy, except for the serious ramifications, two Armoured Vehicle Operators were dismissed for not following procedures, which led to the loss (and finally recovery) of a cash collection to the value of $58,710.00. This matter relates to one of the AVO’s, Mr Symes.

 

To summarise the events, it seems (to me at least) how such a large amount of money can go missing and not be detected missing until a global audit is undertaken. The backstory:

 

  • The AVO picks up a cash bag from a customer and places in the external “safe” of the van. The AVO inside the van does not have access to the bag until the outside lid is locked. The inside-the-van AVO then collects the cash bag and stores it ready to be taken back to the depot.
  • For some reason, the inside-the-van AVO did not remove the cash bag and it remained in the external safe.
  • You would think by this stage somebody would have noticed that $58k had not made it to the depot for processing. Nope, some two weeks later the van was sent for maintenance.
  • One of the maintenance workers thought he had won lotto and promptly “pocketed” the cash.
  • We have no knowledge on what happened to the maintenance employee but suffice to say the money was recovered.
  • Armaguard concluded it was the AVOs’ fault for not following procedure and dismissed them for failure to follow proper procedure.

 

As we know, a dismissal may be:

  • Harsh – because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
  • Unjust – because the employee was not guilty of the misconduct on which the employer acted; and/or
  • Unreasonable – because it was decided on inferences that could not reasonably have been drawn from the material before the employer.

 

The DP found:

 

  • The conduct was negligent and in some cases careless, and that it contributed to a string of failures in Armaguard’s systems and processes so that the AVO’s were only partially responsible for the series of events involving the consignment going missing and being stolen, and therefore was not of such gravity that it provided a valid reason for dismissal.
  • There may have also been other mitigating factors at play which led to the oversight.
  • The failure to account for the consignment once the AV returned to the Depot was equally a failure of the Despatch Clerk.
  • As the DP put it:

 

“On balance, a series of errors which ensued after the money was left in the transfer safe by Mr Symes and Ms Bedford contributed significantly to the money being stolen. If service and professionalism was lacking in this unfortunate series of events, it was not only due to the conduct of Mr Symes and Ms Bedford and at best they played an equal part in the series of events when considered against the parts played by other managers and employees of Armaguard and the systems failures which occurred”.

  • The DP also considered:
    • Length of service (17 years).
    • Previous unblemished record.
    • Significant impact on the ability to obtain employment in the security industry.
    • Alternatives to dismissal were not considered (eg demotion and retraining).
  • The DP concluding that the dismissal was unfair on the grounds that it was harsh while deserving of censure and disciplinary action, was not of sufficient gravity to warrant dismissal, much less summary dismissal.
  • The DP finding:
    • Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate.
    • Armaguard’s loss of trust and confidence in the AVO is not soundly based and that it should not be an impediment to reinstatement.
    • Armaguard was ordered to reinstate the AVO to the position in which he was employed immediately before the dismissal.
    • Continuity of employment and his period of continuous service was to maintained.
    • Lost wages be paid (less 60% for his part in the misconduct).

 

“I have determined to reduce that amount by 60% on account of Mr Symes’ conduct resulting in an amount of $29,037.02. I therefore award an amount for lost remuneration to Mr Symes for his unfair dismissal in the amount of $29,037.02 plus an amount of superannuation of $2,758.51. I have also had regard to the fact that the sum for lost remuneration will be taxed according to law”.

 

Commentary

 

A mistake is just that, a mistake. Despite the cost. There was no malice in the actions. As I was taught: if you ask the question why five times you usually get to the nub of the issue. The FWC found in this matter (my words) the AVO’s to be scapegoats for inadequate or unfulfilled procedures by a number of personnel.

 

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.