Introduction

Read the full decision here.

The question I ask is: has the Fair Work Commission gone beyond its remit in ruling on an alleged case of elder abuse? The Commissioner in this matter felt it necessary to do so, in deciding on this unfair dismissal application.

I must admit, I am at a quandary with decision. Would the result be different if the respondent placed the applicant on paid suspension and called in an independent specialist investigator? Then acted on the investigator’s report. On the other hand, the respondent might well have felt that if it did nothing, this would put its funding in jeopardy, and therefore be out of business?

Apart from this, I feel the quality of the process (ie the letters and the manner in which the allegations were put) were very good. Unfortunately, for the respondent, they were not good enough.

The only way we will know for certain if the respondent appeals the decision.

Background

A registered nurse at a nursing home was summarily dismissed for elder abuse and obtaining patient records whilst on suspension (using someone else’s password). The Applicant had been employed as a registered nurse, working nightshift for over a year and had 26 years practical experience. She considered that her dismissal was harsh, unjust, and unreasonable and sought reinstatement and continuity of service and wages.

The respondent dismissed the applicant for a number of reasons, the most serious being an allegation of elder abuse, where it was alleged that the Applicant engaged in elder abuse, by using unreasonable force when undertaking a suctioning procedure to assist the resident’s breathing. In addition, it was alleged the Applicant had directed a personal support worker, (working on the shift with her) to use unreasonable force to hold down the resident’s hands, when the resident, it was alleged, was not agreeable to having the procedure performed.

The Respondent considered the Applicant’s alleged conduct constituted elder abuse and that if substantiated, would present as a contravention of the Respondent’s Senses framework, Code of Conduct, the Resident’s Charter of Rights, and the Aged Care Act 1999.

Police report

Prior to investigating the matter, the employer, assessed the conduct to be elder abuse and accordingly, the Respondent considered it necessary at that point to report the incident to the Queensland Police and the Department of Health. It was submitted that an appropriate investigation, affording the Applicant procedural fairness had not been undertaken prior to the reporting.

The first allegation letter

The allegations were put to the applicant in writing [Note: this is a very good letter]:

“It is alleged that:

  1. On or around 26 August, 2019 –
  2. You used unreasonable use of force when you were suctioning client [redacted] against her will;
  3. During the ‘sunctioning (sic) process you directed a PSW to use unreasonable force and hold down [redacted]’s hands indicating that [redacted] was not agreeable to being suctioned.
  4. On 29 June, 2019 –
  5. You were rude and abusive to HRM, [name], when she phone you at 11:00 pm and 11:30 pm to make you aware there was an important email that had been sent to you and you were required to open your emails. During this phone call you stated you were with a ‘patient’ and would not allow [name] to speak as you spoke over her and then hung up in her ear. It is acknowledged you asked [name] for her phone number, however, as [name] tried to inform you the phone call would have only taken 30 secs. It is to be noted that [name] took the option to be transferred to the After Hours Supervisor [name] on the first phone call, however, as you stated you were busy [name] waited 20 mins before making the second phone call and took the option of being transferred to the Nurses Station so she could speak to a Person Support Worker who could advise her if you were still busy and you answered the phone and again hung up in her ear;
  6. You phone the Residence Manager (RM) at 23:29 pm, following [name] phone call, and you were rude and abusive and informed her that you were being harassed by [name] and that you were trying to administer S8 medications. You also said that if [name] kept repeatedly contacting you and kept harassing you the RM would have to complete the night duty shift as you would not work if [name] constantly harassed you. It is to be noted that a review has been conducted of the S8 Medication book and the first S8 drug that you administer that night was not signed out until 11:23 pm, after [name] 2 phone calls.
  7. On 30 June 2019 –
  8. During a phone call at 4:40 am you were rude and abusive to the RM when she asked you if you had opened your email and you responded ‘No’. The RM tried to explain to you that an important email had been forwarded to you and you were to open your emails and you became argumentative, abusive would not listen to what she was saying and over talking her. You continued this abusive, argumentative manner throughout the phone call as the RM was trying to explain to you about the email and you were required to open it. You also started to ‘rant’ about [name] harassing you and that the residents could not get their S8 medication because of [name]. Due to your inappropriate behaviour the RM told you that she had to disconnect the call. It is to be noted as previously identified on a review of the S8 Medication book and the first S8 drug that you administered that night was not signed out until 11:23 pm, after [name] 2 phone calls;
  9. you lodged a vexatious claim against [name], Human Resources Manager Qld, when you completed an Incident Report claiming that [name] had bullied and harassed you during two (2) phone calls to you at 11:00 pm and 11:20 pm. It is to be noted in her role of HRM [name] had a responsibility to inform you of the consequences of you taking unapproved leave and that was the purpose of the phone calls. It is also to be noted that during their working hours, it is the responsibility of After Hour Supervisors e.g. [name] that they answer and respond to any phone calls during their shifts;
  10. you were belligerent and defiant in your manner when you informed the Registered Nurses by Message Board that ‘Admin’ had made an error as follows: ‘Just to let you know I am on leave from 30.6.2019 to 23.7.2019. Admin must have forgotten to take me off the roster. Please liaise with [name] about replacement- Thanks’; This was after speaking to the RM at 4.40 am who had rang you to reinforce and advise you to read your email from HR regarding taking unauthorised leave.
  11. On 8 September, 2019 –
  12. when you were informed that client Pat, Room 18, said she had a sore throat and couldn’t swallow you gave her 50mg Tramedol medication (note Medman indicates that this medication is for abdominal pain) and Pat did not wake up until 0500 expressing concerns regarding the medication you gave her saying words to the effect, ‘what happened? … I can remember the nurse giving me the tablet, but I can’t remember anything else after that, was I unconscious‘;
  13. you thought it was funny when you were made aware that Room 7 had buzzed for pain relief for her sore foot around 1:30 am and you forgot to give it to her until you were reminded again around 05:14 am;

III. when the client in Room 3 had buzzed for a third time to go to the toilet you answered the buzzer and told client Yvonne she had already been to the toilet and that she had to wait;

  1. when the client in Room 2 had been up to the toilet quite a few times around 2:00 am you asked the PSW if the client had any pain and the client said that he had no pain whatsoever. You stated if the client gets up again that you would just give him something although he had not requested any medication;
  2. During the night shift on 8 & 9 September, 2019 it has been alleged as follows:
  3. You left client Betty’s room in a dirty state following her cares as you left her in sheets that had faeces on them as well as leaving her used pad with faeces in it on the toilet seat;
  4. You falsified documentation and did not follow Policy as you documented that you administered Resource to (redacted) at 6:00 am as a full glass of Resource was found in (redacted) room indicating that you did not sight (redacted) taking the Resource and (redacted) not receiving the Resource;

III. Although you had been directed to ensure client (redacted) was showered during the night shift as she was going to hospital in the morning to have an operation you did not shower (redacted). The PSW on duty asked you to assist her to shower (redacted) as she was a two person assist and you told her you would not assist her;

  1. On a number of occasions, you have encouraged the PSWs who have been rostered to work with you to work outside of their scope by telling them to administer medications and they have informed you they are not able to administer medications.

Your alleged actions have compromised the health, safety and wellbeing of a number of [respondent] clients and staff.

[Respondent] views these alleged behaviours as constituting Elder Abuse. If substantiated, these actions are in clear contravention of [Respondent] Senses Framework, Code of Conduct, Residents’ Charter of Rights, and the Aged Care Act 1997. The alleged behaviour has caused stress to both clients and staff members.

Under mandatory reporting requirements, incident ‘1’ has been reported to the Queensland Police and the Department of Health.

You are therefore required to attend an investigation meeting at [respondent] on Wednesday, 18 September 2019 at 3pm. In attendance at the meeting will be [name], Regional Support Manager and myself. You may bring a support person of your choice to this meeting. If you do intend to bring a support person, please advise me directly not less than 24 hours prior to the meeting.

At this point in time, the above are allegations only and no conclusions have been reached. The purpose of this meeting is to provide you with the opportunity to respond to the allegations. This information will be vital in enabling us to assess whether the allegations are substantiated or not. Should you fail to attend the meeting without an acceptable reason, it will be assumed that you accept the validity of the allegations made against you and any disciplinary action that may result.

If not substantiated, there will be no further action. If substantiated, it could lead to one or more of the following outcomes:

  1. Counselling or Mediation
  2. Training
  3. Performance Improvement Plan
  4. Written Warning
  5. Summary dismissal

You are formally directed not to discuss the nature of the investigation with any other staff, residents, their families or any other parties associated with [respondent]; failure to adhere to confidentiality, if substantiated, may result in disciplinary action up to and including termination of employment.

Please also be aware that subjecting, or threatening to subject, any person who has been involved in this matter to any form of disadvantage or victimisation will not be tolerated.

[Applicant], it is appreciated that being the subject of an allegation and involvement in the subsequent investigation can be difficult for you. Please do not hesitate to use the Employee Assistance program on (redacted), which is a completely confidential counselling service provided at no cost to you.

Any queries you have should be directed to myself.

Yours sincerely,

[Name]

Group Manager – Human Resources”

The Applicant was suspended on pay from this date.

The second allegations letter

Subsequently, the Applicant received a second letter from the Respondent including further allegations, namely that while she was suspended:

  • The Applicant entered the Facility, accessed the IT system, printed off personal information, and removed property from the facility;
  • Her conduct breached the Respondent’s Policy and Procedure – Suspending an Employee, Respondent’s Values and Conduct, and the Applicant’s Position Description; and
  • The Applicant would be given an opportunity to respond to these allegations at the meeting.

Lack of cooperation leads to dismissal

The applicant was dismissed by letter, because she failed to cooperate with the investigation and subsequent interview meeting, in which gave a “no response” answers to question put to her.

Legal representation

Both the applicant and respondent were given permission to be represented by legal counsel.

The Applicant was represented by Ms Polina Kinchina, of Counsel, instructed by Mr Alexander Williams of Hall Payne Lawyers. The Respondent was represented by Mr Vince Rogers, Partner of Ashurst Australia (and then Landers and Rogers) instructed by Ms Patricia Ehlers, Human Resources Manager of the Respondent. Both parties were granted permission to appear pursuant to s.596 of the Act, due to the matters having some complexity and the dismissal having significant implications (with regard to the reporting of alleged elder abuse) and the potential repercussions of a finding of such, for the Applicant’s continuation as a registered nurse.

Respondent sought an 11th hour adjournment

It should be noted that the Respondent had legal representation at the Hearing, who had advised that he had been briefed, in the week before the Hearing, at a time when the Respondent participated in a Member Assisted Conciliation (MAC), before another Member. The Respondent’s legal representative sought to halt the proceedings (at the commencement of the Hearing) and sought fresh Directions to be set then, to allow for the filing of further evidence and submissions. This application was not foreshadowed at any time prior to the Hearing by the legal representative or the Respondent’s Senior Human Resources Officers. The Respondent’s senior personnel involved in this matter, had previously been put on notice by the Commission and the Applicant’s legal counsel, regarding the limited nature of the evidence they had filed. This matter was brought to the Respondent’s attention prior to the Hearing, in circumstances where the Applicant’s representatives had raised written concerns regarding imposing further costs on the Applicant. Further, the Applicant’s representative prior to the Hearing, when a MAC was under consideration, set out that delaying the matter and further costs would cause significant prejudice to the Applicant.

The Commissioner:

“At the commencement of the Hearing, both parties made lengthy submissions regarding the request on behalf of the Respondent for the late provision of new material and witnesses. I put the Respondent on notice that my provisional view was that there would be significant prejudice, to the Applicant, in allowing further material to be filed so late.

[…]

“That has meant that, and fully cognisant of the fact that the company had not complied with provisional statements in accordance with the directions and that they should’ve been provided on 13 January, and it’s a case where people internally within the organisation, for whatever reason, weren’t fully cognisant of what was required of them, notwithstanding the directions had been issued. The fact is that they did seek some guidance from in-house counsel. Unfortunately that in-house counsel within the company do not have experience in this area of the law and hence weren’t able to sort of give direction as to what approach [name], who was the person who was preparing that material, had to address.

[…]

“Taking into account all matters, after adjourning to consider the submissions, I decided (on the transcript) not to allow further material to be filed in relation to the matter (and not to allow new witnesses to be introduced, who had not provided statements of evidence)…”

Reverse onus of proof

In cases of dismissal for serious misconduct (summary dismissal or dismissal without notice), the onus is on the Respondent, in the current matter, to discharge the conduct that there was a valid reason for dismissal, on the balance of probabilities, in accordance with the principle established in Briginshaw v Briginshaw:

“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ …”

Applicant chose her right to remain silent

The commissioner’s view was that the applicant had the ‘right to remain silent” (all though there was no evidence that the applicant needed to be Mirandized (in accordance with American police TV dramas). The Commissioner:

“It was emphasised on behalf of the Applicant, that as the Respondent had contended that as the 26 August 2019 incident, was capable of constituting a criminal offence, answering the questions posed in relation to these allegations at the meeting of 18 September 2019, had real consequences. The Applicant was concerned that the answers could be relied on to prove her guilt of criminal conduct, and therefore the Applicant was entitled to claim privilege against self-incrimination”.

Right to have a support person present

Given the “criminality” of the allegations, the applicant’s union was unable to represent the applicant. This was to provide somewhat fatal to the respondent’s case, in that it failed to provide procedural fairness in allowing the applicant time to seek legal representation.

The Commissioner:

“Whilst, I am satisfied there was no unreasonable refusal to allow [the applicant] to have a support person present, however in the circumstances, the employers required timing of the meeting responses and the gravity of the allegations prevented a procedurally fair meeting for the Applicant. She was not able to have a relevant support person, that is she sought to obtain a representative, to assist in the serious discussions. She was unable in the time provided, to do this. She advised the Respondent of this, and on that basis would not be able to respond to the questions at the meeting”.

The procedure in question

The allegation of elder abuse was that the applicant forcibly undertook a suctioning procedure on a patient, ordering a subordinate to hold down the patient’s hands as the patient was resisting the treatment.

In the Commissioner’s words:

“…In this regard I accept the Applicant’s evidence that in her professional opinion the suctioning was necessary. I also accept that it was not inconsistent with the resident’s care plan which did not indicate that the suctioning should not be carried out, if it was necessary to prevent choking. In addition, whilst it is recognised that changing a sanitary pad was a necessary hygiene duty, it can be deferred for a short time and it cannot be considered to the same physical necessity level, as the requirement for the suctioning, in the circumstances of the patient, as confirmed. I prefer [the applicant’s] evidence, that suctioning was only performed where there was a medical necessity and the resident was at serious risk of choking, asphyxiation, and possibly death, if the procedure was not performed. [The applicant’s] uncontested evidence was that choking could begin in a matter of seconds. The patient’s chart demonstrated that suctioning had been performed and required in the past.

“[The applicant] is an experienced nurse and the documented evidence demonstrated that is was necessary to perform the procedure regularly. [The applicant] was the only RN on night shifts and the only one qualified to determine whether the suctioning was necessary. In making the assessment, [the applicant] was required to act quickly and without delay”.

Allegation of elder abuse not proven

The Commissioner found that this did not constitute elder abuse, finding:

“On the balance of probabilities, the allegations of elder abuse were not made out. This allegation was the primary and most serious allegation. The other allegations related to nursing matters that would regularly be dealt with in daily notifications, ward handover matters and not raised in an aggregate form sometime later. Whilst not in any way diminishing the importance care of patient duties, these allegations would not form the basis for dismissal, where the allegations had not previously been raised in a timely manner, and had formed the basis of discussions. Further allegations of insubordinate conduct towards [HR name] regarding these issues form the category of alleged rudeness and not immediately responding to her emails whilst on night duty, do not support a valid reason for the termination.

“The employer reported the allegation of elder abuse, on a premature basis. No proper investigation was conducted. The onus is on the Respondent, in establishing the basis for the criminal referral of ‘elder abuse’. The Respondent should be able to prove, to meet those tests, the basis of proving the conduct ‘beyond a reasonable doubt’. The witness evidence relied on by the Respondent in this matter in regard to the two employees that were working on the night shift with the Applicant was not cogent or credible. Their evidence demonstrated that they did not have a sound understanding of the procedure. One witness had an ulterior motive for complaining about the Applicant, rather than a genuine consideration that the Applicant had engaged in elder abuse. The other witness was not confident in her evidence about the alleged incident or her complaint”.

[…]

“Even if [the Applicant] did instruct the personal support workers to hold [the patient’s] hands tightly or firmly, in the context of her performing a medically required procedure, in the circumstances as described with this patient. I consider that such an instruction would not constitute elder abuse or excessive force. The procedure is uncomfortable and to be effective, involves precisely inserting a tube into the resident’s mouth and throat. Allowing the resident to pull at the tube, would hamper administering the procedure which, was time sensitive and necessary and if not done safely, could result in injury to the resident”.

Insubordination (rudeness over the phone)

The Commissioner found that:

“…whereby it was suggested that the Applicant was insubordinate to the manager, in circumstances where the manager repeatedly contacted her, whilst on duty on the night shift, to check her emails, the response to these matters does not adequately form a basis for the dismissal. There were reasonable alternatives to these demands to the Applicant, whilst she was on duty. The repeated contact of the primary registered nurse, responsible for the care of the residents on the night shift, cannot be considered appropriate or contribute to a valid reason for the dismissal. Whilst the Respondent stated that the Applicant’s involvement in dispensing medications at particular times during the shift did not match with those times that the Respondent called for her, the provision of medications were not the only necessary duties undertaken on shift by the Applicant”.

Accessing confidential patient records whilst suspended

Here, in a rare (part) concession to the respondent, the Commissioner noted:

“However, the employer did make a serious allegation against the Applicant, in relation to the Applicant’s accessing and removal of patient information and records, after being suspended. The Respondent considered the Applicant has engaged in a significant contravention of her general obligations to patients in relation to this matter. It is inconsistent with her evidence of her experience and knowledge as a registered nurse, that she was not aware of the strict required custody and privacy requirements of patient records. However, this must be balanced with the pressure the employer placed on the Applicant, in refusing an adjournment of the meeting, which required specific responses to defend herself, in relation to the allegations related to patient care. The allegations, had the potential to end her career as a registered nurse and to expose her to criminal investigation, by referring the elder abuse allegations without an appropriate investigation and without receiving an appropriate response from the Applicant.

“The allegations of the conduct of the Applicant in returning to the workplace and accessing patient records has been carefully considered in the context. It was submitted that the conduct was undertaken in the mitigating circumstances, in that the Applicant stated, she was not clear on the specific details of the allegations involving patients and therefore the need to check patent records to verify such. The Applicant said she was unclear on the parameters of the suspension from the workplace and that she was not advised, that she was not able to return to the workplace, while suspended. Further that she was directed to respond to a series of serious allegations, that directly affected her ongoing registration, in her long-term vocation. The real concern regarding criminal charges being laid, in the circumstances, provided significant pressure to be able to have the relevant documentation to address and defend the allegations. The decision to access the records was taken in circumstances, where it can be considered that the Applicant was under real duress given, she did not have any representation at that time and the timeframes in which she was being required to respond were short. She was also without representation”.

[…]

“…The allegations have not been made out, this matter of itself does not constitute a valid reason for dismissal. Notwithstanding this, the breach of conduct in accessing and copying patient records, forms a serious matter”.

Conclusion

The Commissioner summarised as follows:

“Having determined that there was no valid reason and that the Applicant’s dismissal was procedurally and substantively unfair, it is necessary to consider the question of remedy. As required by s. 390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that she was unfairly dismissed. I am also of the view that the Applicant should receive a remedy for her unfair dismissal”.

Reinstatement or no reinstatement?

The applicant was insistent that she wished to be reinstated to her former position.

On the other hand, the respondent argued that there was a loss of trust and confidence.

The Commissioner:

“Reinstatement is the primary remedy for unfair dismissal, and compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the present case the Applicant is seeking reinstatement as the remedy. The Respondent submitted that reinstatement was not an appropriate remedy, given the further conduct of interference with patient records. The parties were, further to the Hearing and the subsequent Directions, were afforded a further opportunity to address remedy and to make submissions in relation to remedy as requested. The Respondent provided an additional more recent statement in relation to remedy. This evidence did not indicate any impediment (bar the issue of trust and confidence addressed later) to the Applicant’s reinstatement.

Adding:

“However, the elevated criminal test would be relevant if the matter was considered in circumstances beyond the Commission findings, that provided for the Applicant losing her certificate to practice nursing.”

Reinstatement: The precedents

The Commissioner provided useful information in what to consider when determining whether reinstatement should be granted.

“…The relevant legislative provisions for consideration of a remedy are set out in s.390, s.391 and s.392 of the Act…In considering whether reinstatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence raised by the Respondent must be considered. The following observations regarding the issue of loss of trust and confidence in Australia Meat Holdings Pty Ltd v McLauchlan, are relevant:

‘In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability…

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Relations Court said:

“…We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.”

“In assessing the evidence, there were no impediments to reinstatement made out on the evidence”.

The outcome

The Commissioner finding:

“For all of the aforementioned reasons, it is determined that the Applicant was unfairly dismissed…I consider the Respondent’s reasons for dismissal, in that it considered that the Applicant had engaged in the alleged misconduct of elder abuse is not substantiated. The other allegations also were not made out and would not equate to a valid reason, as set out. No loss of trust and confidence in returning to undertake her duties has been made out. It is appropriate, based on the evidence and submissions, to make an order…for reinstatement to the position in which the Applicant was employed, immediately before the dismissal [and] to maintain the continuity of the Applicant’s employment and to ensure the period of continuous service.

“In the circumstances, where it is considered that there is no valid reason for the termination, but a breach due to the accessing of patient records and it is considered that the termination was harsh, unjust and unreasonable. It is therefore considered appropriate to make an Order for compensation, as set out, this does not restore the Applicant’s lost remuneration in terms of ordinary time wages for the period between the dismissal and the reinstatement. The Order, as explained reduces the amount in recognition of the conduct of accessing the records.

“I have determined that in the circumstances of this case, it is appropriate to make a 75% deduction, from the amount awarded for lost renumeration, on the basis of the Applicant’s conduct in accessing and removing confidential patient records from her workplace without authorisation. This conduct was inconsistent with her employee obligations; however, I do not consider this conduct alone amounted to a reason for the dismissal, although it is considered sufficiently serious, as to warrant a significant reduction in interim renumeration”.

Introduction

Read the full decision here.

What happens when two work colleagues have worked harmoniously for almost a decade, suddenly cannot simply work well together. In this case gun licences, referencing mental health issues, a somewhat arrogant MD and a scathing FWC member.

In this unfair dismissal matter, the managing director represented the company and the applicant defend herself. The applicant having been employed for some 91/2 years, starting as a receptionist to administrative manager. The applicant’s “crime”: taking sick leave without approval, plus sending allegedly “confidential” emails to her private email address – an email account she shares with her husband (which had the FWC member somewhat mystified that she did not have her own email account).

The email

The email in question relates to the behaviour of the applicant’s co-worker (“ZA”), which the applicant passed on to another employee, who then forwarded to the medical clinic that was to assess the co-worker’s behaviour. It read:

“Hi

I am sure there is more, but this is a start

Bullet points

  • Short fuse
  • Staff freighted to talk to him in case he losses it (has smashed trays at work, kicked and threw a chair)
  • Victim
  • Selfish
  • Takes no responsibility for actions
  • Threatens to kill himself (putting 2 fingers to his head)
  • Said everyone is inconsiderate (on the road), so now doesn’t indicate, speeds and if he dies, so be it
  • Gun licence – guns and bullets at home
  • Said if he losses his guns then life is not worth living as these are the only things that make him happy
  • Money – will not spend as if he has to now that means his whole life has been a waste
  • Worries about everything to the extreme – laid awake at night worrying if neighbours were going make noise
  • wont drive into city and will not pay for taxi so IBS staff have to take him or pay for cabs
  • Doesn’t want to go on any medication, he said it is better for everyone else but no him, so not doing it
  • Should of stayed in Cairns????? Took drugs, drank and got a slut pregnant
  • Talked about trying something new, but said if he doesn’t like it after 3 months then its been a waste of money
  • Lives with mum
  • The only thing that would make him happy is more money, and opening up a gun range/place to ride bikes or quads
  • Doesn’t understand why he hasn’t got a girlfriend
  • Hates Brisbane and talks of moving back home
  • Depressed and miserable all the time
  • Doesn’t attend work Christmas parties…..”
[original text]

Following receipt of the above correspondence from the applicant, the other employee forwarded a copy of the email to a reception email account of the medical clinic to where the problematic co-worker was to attend an appointment. In doing so the other employee included the correspondence below:

“Hi

We are bringing [Mr ZA] in on Friday at 11am to see [doctor’s name] for his appointment.

I thought it best that we right down a few things that we are very concerned about and why the company is paying for his initial treatment.

The office is “walking on eggshells” at the moment so we have written down below an insight on to what is going on.

Please add this to his file. I will be the one driving him in on Friday.

He’s a good [occupation] but we are very concerned about his mental health.

Kind regards

[Name]

Bookeeper”

[original text]

Why MR ZA was being sent to a psychiatrist was not explained – only inferred.

Confidentiality Order

The Commissioner granted the “co-worker” a Confidentiality Order, so economising his name to “ZA”.

Co-worker v Applicant

The applicant stated that she asked Mr ZA a question three times, and after he ignored her, she asked him, “Are you deaf?”. He replied that she was a raging bull and that she had better watch herself. Her evidence is that he made that statement with real malice and hatred. Further, Mr ZA said to her, “We all know what you areyou’re a vindictive narcissist, and you better look that up”. The applicant replied that she knew what it meant to which he replied, “I bet you do”. The applicant went home early that day as she felt threatened.

Manager’s fear of being shot

The applicant met with management representatives the next day to explain what had happened. She requested Mr ZA be given a written warning as she felt threatened in the office. Her evidence is that a management representative said he didn’t want to do anything just in case it set Mr ZA off and he came in and shot them.

At no stage throughout the dealings with Mr ZA was there any conflict resolution undertaken. The best that management did was advise the applicant to stay away from ZA.

The applicant claimed that on many occasions Mr ZA would walk past her desk to leave the office, and he would say words to the effect, “Still here, you won’t be for long, narcissist”. The applicant acknowledged that on some occasions she snapped back at him.

MD has been watching too many courtroom dramas

In a fruitless attempt to go to the applicant’s state mind, the MD brought up domestic violence issue that the applicant had suffered. However, the Commissioner was on to this tactic, as the bringing this issue to the table brought forward the fact that this had occurred some eight years previous and was of no probity value; and painted the MD in a very poor light. Put plainly, it backfired.

Not to be beaten on this point, the MD then went on to suggest that the applicant’s stress was caused by a car accident and wrote off her car. The applicant provided correspondence from her insurer indicating that the vehicle was repaired and not written off.

Dismissed for serious misconduct

The applicant, being dismissed for serious misconduct, was not paid notice period and was six months from being eligible for long service leave (this being in Queensland).

The Commissioner’s own words…”pretty thick”

I will leave it to the Commissioner’s own words which are very pointed, noting that I have highlighted the juicy bits):

“Upon learning that she was likely going to be taking some time off work, [the MD] took it upon himself to declare that it would be paid as annual leave, and that if she did not return to work by Friday, he would be looking for somebody to replace her. Another employee (the same one who sent the email to the medical clinic] relayed this information to [the applicant]. [The MD] asks the Commission to accept his evidence that he did not consider dismissing [the applicant earlier] on account of her absence from the office, and when he said he would need somebody to replace her, he meant that he would need the job to be performed by somebody in her absence.

“It is difficult to accept [the MD’s] evidence on this issue when he said…that [the applicant] would have to be “pretty thick” if she didn’t get the message that if she didn’t attend work…she should know that she was being dismissed”.

The Commissioner goes to town on the MD

“I find [the MD’s] views on [the applicant’s] absence from the workplace…to be astounding. He is not a doctor, yet he considered that she was retaliating against him. He had no regard for the medical certificate obtained by her, issued by a medical practitioner, and in these proceedings appeared to me to unnecessarily eager to discuss the fact that she had, many years ago, and not in her present relationship been a victim of domestic violence. Why he did so appears to me to be perverse and demonstrative of his views of [the applicant]. It is not clear why [the MD] thought it appropriate to raise this issue. Did he think the Commission would think less of [the applicant]? Think her weak? Think her a victim? Think her the continual subject of abusive men? The fact that [the applicant] was a victim of domestic violence many years ago has no bearing on why [the applicant] was declared absent from work at this relevant period of time…[The MD] need be assured the Commission thinks poorly of [the MD] for even raising the issue, not [the applicant] for her past unfortunate circumstances.

“Further…[the MD} rudely suggested that perhaps it was [the applicant] and not Mr ZA who should have been seeing a psychologist. [The MD’s] contempt for [the applicant] was evident, and in my view unpalatable, unnecessary and unwarranted. It appeared to me during the hearing that [the MD] simply wanted to point-score against [the applicant], yet he did not impress me at all, nor did he succeed in his attempt to point-score.

“This is evident [when] I was questioning [the MD] if [the applicant] needed his permission to be absent from work on account of being ill and he laughed at the question put to him. His contempt for the question being put demonstrated to me the arrogance that [the MD] dealt with [the applicant’s] absence; how dare she be ill and not well enough to attend for work!”

Permission not required to take sick leave

“[The applicant] did not need [the MD’s] permission to be absent from work…She was excused from attending for work by a medical practitioner…who declared on a workers’ compensation medical certificate that she would be examined again on 11 April 2020.

“[The applicant’s] obligation to the Respondent was to inform the Respondent of her inability to attend for work and provide evidence of such. She met this obligation and did not attend for work during the period of her incapacity.

“Where [the applicant] did not need to obtain consent to commence taking leave on account of her incapacity, she did not need to consult with the Respondent to make a workers’ compensation claim. [The applicant] had statutory entitlements regarding personal leave per ss.95, 69, 97, 98, 99 of the Act, and a statutory entitlement to make a worker’s compensation claim. Relevantly, s.352 of the Act provides that:

‘An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.’

“Similar provisions apply at s.772 of the Act. Ms Tracy was certified unfit to attend for work until 11 April 2020. She provided the evidence required at regulation 6.04 of the Fair Work Regulations 2009.

“[The applicant] left the Respondent short-staffed during a critical time for the Respondent’s business. This is a fact, not a feeling, sentiment or perception. Her inability to perform work would have been the same if she had been suffering from gastroenteritis, influenza, or any other ailment preventing her from performing work. It was [the MD’s] inference that she was deliberately pulling a “strike” on the Respondent that contributed to the Respondent’s decision to dismiss her.

“For the above reasons, one of the reasons for the dismissal, being the Respondent’s assertion that [the applicant] took unauthorised and unwarranted leave in a time of crisis is not a valid reason for the dismissal.”

Breach of confidentiality

“Primarily, the Respondent contends that [the applicant] either did not have exclusive use of the email account shared with her husband, or it was her husband’s email account and not hers. The termination letter states the following, suggesting that it was because it was sent to [the applicant]:

‘You not only betrayed this trust by taking unapproved leave at a time of national crisis but you also forwarded sensitive internal emails to other parties [the applicant’s husband] on [date/time] using the admin account. This is a direct violation of [the respondent’s] Policy and directly affects government restrictions on OTP payroll conditions for suppliers. It is also a violation of your Employee Confidentiality Contract and Employment contract. This violation alone is sufficient cause for instant dismissal.’ [The Commissioner’s emphasis].

“[The MD], put to [the applicant] that it was odd that a woman would share the same email account as her husband. [The applicant] responded that she had done so for around three years. I do accept that it is an odd thing to do; [the applicant] would no doubt have had her own personal email account prior to meeting her now husband, but now shares use of his account which uses his name. Why [the applicant] gave up using a prior, personal email account has not been explained. I accept her evidence that she and her husband share the account. I do not accept the inference that it is solely an account for [the husband’s] use and therefore it would mean there was a further improper reason for sending the emails to [the husband’s] email account.

“While the forwarding of work emails to an employee’s email account (or one that is shared with a family member) should be discouraged, in these circumstances I do not accept that it constituted a breach (or if it did it was not a serious breach) of the Respondent’s policies. Nor do I find that at common law it would constitute a breach or serious breach of confidentiality obligations an employee in [the applicant’s] position owes to the Respondent.

“The most ‘damning’ email included in the emails [the applicant] sent to herself…is the one prepared by her, with her own thoughts and opinions on Mr ZA’s psychological issues. It is clear that this is what she considered to be significant issues with Mr ZA’s psychological state in [at the time], and she listed them and forwarded them to [another employee]. [The other employee] then added her own email to provide context to the relevant medical practitioner who was shortly going to be examining Mr ZA.

“There was nothing company-sensitive in the material…I do not accept that the material [the applicant] sent herself would constitute the defined term of Confidential Information…Any reliance on it then being Confidential Information and a breach to share is not then supported.

“I accept [the applicant’s] evidence that she was encouraged to provide as much relevant information to her workers’ compensation claim as was necessary. [The applicant’s] own opinions on Mr ZA’s psychological condition was, in my view, not overblown or overstated as asserted by the Respondent. She held genuine and real concerns, based on Mr ZA’s various statements to her over a relatively short period of time that Mr ZA was unstable.

“I accept [the applicant’s] evidence that Mr ZA put two fingers to his head and suggested that he didn’t want to be here (as here on Earth, not at work or in his location as suggested by him in his evidence). I accept [the applicant’s] evidence that she was dealing with a real scenario of an employee violently punching a chair, intimating suicide by putting two fingers to his head, and she demonstrated the appropriate duty of care to Mr ZA by meeting with him privately and investigating the issue.

“[The applicant] reported all of this information at the time. [The MD] has, in my view, now turned on [the applicant] and conveniently forgotten the seriousness of the issue because of his loyalty to Mr ZA. He approved and endorsed the medical examinations of Mr ZA with the information he had before him at the time. It appears to me that [the MD]…had no regard to [the applicant’s] sizeable length of service with the Respondent and her exemplary employment history, but reverse engineered a determination that [the applicant] was the root cause of Mr ZA’s mental health issues. This is so despite a very good relationship existing between [the applicant] and Mr ZA for the period late 2010 to August 2019.

“Where [the applicant]left the meeting of 18 March 2020 in tears, with [the MD] suggesting she might find another job, and he would choose Mr ZA over her if necessary, it is understandable that [the applicant] might gather for herself a modest amount of material generated during work time to assist with her in making her workers’ compensation claim.

“The mere fact that [the husband] might read these emails is, in the circumstances, not an important issue. [The applicant] no doubt discussed with [her husband] the concerns she held about Mr ZA’s psychological state, including her concerns regarding his access to firearms.

“I do not accept that the material sent by Ms Tracy to herself constitutes employee sensitive medical information. All it simply confirms is that Mr ZA had medical appointments which is a fact. The emails do not contain medical information.

“The Respondent’s submissions make it clear that the Respondent was more concerned with Mr ZA’s potential emotional breakdown than that of [the applicant]. This is so because of the more valued position Mr ZA holds within the Respondent and his known fragile state. [The MD] was, as is demonstrably clear, more concerned with Mr ZA bringing a workers’ compensation claim against the Respondent than he was about [the applicant] doing the same. When she did, he immediately dismissed her.

“Further…the Respondent appears to me, to make some concession that if [the applicant] is correct, the Respondent’s employees might be at risk if Mr ZA had a psychiatric breakdown. This is supported by [the applicant’s]…evidence…where [the MD] suggested that Mr ZA should not be set off as he could come into the office and shoot people up

“I reject the Respondent’s assertion that [the applicant’s] act of sending the emails that she sent to herself would affect the Respondent’s reputation in the marketplace or with the ATO as a trusted data repository and processor. There is no evidence that this constituted any sort of data breach, was reportable, or would otherwise become widely known.

“For the above reasons, one of the reasons for the dismissal, being the alleged breach of confidentiality is not a valid reason for the dismissal”.

The Commissioner becomes medically trained?

In what to me sounds contradictory, in that the Commissioner noted the lack of medical training of the MD relating to the sick leave certificate, went on to comment:

“I accept [the applicant’s] evidence that Mr ZA would, at times, ask her if she was still at work and call her a narcissist. He clearly was projecting all of his own issues on her, making out that they were her fault and not his. I have no doubt she held concerns about his conduct, yet she was still doing her work right up until 18 March 2020 when [the MD] suggested she should find other work because of the conflict in the office”.

[…]

“For the above reasons, one of the reasons for the dismissal, being the ongoing conflict and alleged bullying of Mr ZA since August 2019 is not a valid reason for the dismissal”.

The Commissioner rips into the MD in concluding

In finding that there was no valid reason for the dismissal, the Commissioner summarised the matter as follows:

“The MD’s] conduct in the manner of the dismissal is, in my view, one of the poorest displays of a respondent I have seen since being appointed to the Commission. One of the reasons for the dismissal was [the applicant’s] absence from work whilst incapacitated. During the hearing [the MD} made further statements that she would have been “thick” if she had not have known that she would have been dismissed from the role if she didn’t return to work.

“Unfortunately for [the applicant], [the MD] placed his loyalties with Mr ZA and determined that he would rather see Mr ZA remain in the business than [the applicant]. Fortunately for [the applicant], she no longer has to work for [the MD]”.

The Commissioner then philosophises that:

“When one runs their own business, it would be helpful to have some self-reflection of one’s own conduct. It is almost impossible to imagine how [the MD] could reason that the Commission would not find for [the applicant] with all of the information before it. This is so, despite [the MD’s] “declared victory” in having [the applicant’s] workers’ compensation claim rejected. The considerations before WorkCover Queensland are not the same as the considerations before the Commission.

“I find that [the applicant’] dismissal was harsh, unjust and unreasonable. Whilst it is not necessary to determine all three grounds, I find that [the applicant] was unfairly dismissed”.

Remedy

The Commissioner ordered that the applicant be awarded compensation to the maximum allowed, that is six month’s pay plus superannuation ($32,850).

However, in a twist, the Commissioner ordered that the applicant produce to his chambers bank statements for the period from her dismissal to the date of the hearing to determine whether the applicant had earnt any income during this period (as this would ordinarily be deducted from any compensation order).

A nod to COVID-19

The Commissioner ended on:

“I regret that there has been a sizeable delay for the parties in having this matter determined by the Commission. This is due to the large number of reserved decisions I currently have before me as a result of the spike in various applications in this very unusual year. I consider it would not have been appropriate for the material above …to have been sought in the lead-up to this decision being released as it would have foreshadowed that I have made a finding of unfair dismissal”.

Introduction

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Introduction

In this matter the applicant was employed as a catering assistant at an aged care and was dismissed following an incident where he deliberately coughed in the face of a Registered Nurse.

It was alleged that the applicant acted this was as he was annoyed that he needed to have his temperature taken for COVID-19 reasons prior to commencing work. The respondent further submitted that the applicant was frustrated that the temperature checking process was taking too long and coughed directly in the nurse’s face to express his dissatisfaction. The applicant had received training in the form of “toolbox notes” concerning the need for strict hygiene measures while at work and that the applicant had signed the notes. The applicant submitted that he coughed involuntarily, and it was too sudden for him to put his hand over his mouth.

Outcome

The Commission noted that the registered nurse was not an employee of the respondent but rather a contractor and had no personal interest in the outcome of the matter. The evidence of the nurse was compelling and cogent while the evidence of the applicant was not convincing in respect to how he coughed and why he was unable to move away from the nurse to prevent a direct cough on another person. The Commission further noted that the applicant did not immediately apologise and that it was only until later when he was directed to apologise that he reluctantly did so. The applicant’s failure to instantly recognise that his conduct was a serious incident that was contrary to the known hygiene procedures in an aged care facility during a pandemic, raises the incident in its seriousness exponentially.

The Commission accepted that the applicant’s behaviour was inconsistent with all expectations of the employer and posed a potential serious health risk to the residents and employees at the facility and understandably led to a direction that the applicant was to no longer work at the site. The Commission found that applicant had not made out his case that his dismissal was unfair, and as such the applicant’s case was dismissed.

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Introduction

This matter (which has been successfully appealed), relates to an unfair dismissal application involving a casual employee who the company argues did not work on a “regular and systematic” basis.

In this application for an unfair dismissal remedy, the respondent lodged a jurisdictional objection that the applicant was a casual employee and was not regularly and systematically employed, had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. The jurisdictional objection upheld in the 20 September 2019 decision [[2019] FWC 6448]. The September decision was appealed and a Full Bench of the Commission quashed the September decision and remitted to a Commission Member for final determination [[2020] FWCFB 306].

Background

The applicant was employed as a casual sales assistant. The respondent argued that applicant failed to properly notify of her absences, sent intimidatory and disrespectful emails and created a threat to the health and safety in the workplace. The applicant had also covertly recorded conversations between herself and the respondent.

FWC consideration

Commission considered that the recordings were not consistent with the respondent’s version that the applicant had behaved aggressively although the covert recordings would constitute a valid reason for dismissal. The Commission however noted the recordings were not the reason relied on for the dismissal and could not have been as the employer was unaware of the recording until the filing of materials in this matter. The Commission noted that the applicant did not intend to harm the employer by making the recordings and could have achieved the same objective if she had of advised the respondent that she was making the recordings.

Finding

The Commission was satisfied that the dismissal of the applicant was unreasonable because she was not notified of the reasons for her dismissal and did not have an opportunity to respond. The applicant was also effectively denied the opportunity for a support person. The Commission found that the applicant was unfairly dismissed.

Outcome

The applicant wanted to be reinstated. The Commission noted that given the conduct of the applicant having recorded conversations, there was a likelihood that on return to work there would be disciplinary action which would likely result in the applicant’s termination. The Commission further noted that trust and confidence was lost as a result of the recordings and reinstatement would be inappropriate in the circumstances. The Commission held that Directions were to be issued to elicit necessary information to consider and finalise the matter of compensation.

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Introduction

A casual labour-hire worker has been found to have ongoing employment despite being a casual and having more than 3 months off work.

Background

The applicant in this application for unfair dismissal remedy was engaged by the respondent, a labour hire business, as a casual employee on 23 January 2018. The respondent opposed the application on a number of jurisdictional grounds. There was, however, no dispute applicant was engaged as an employee.

Upon commencement in the role, the applicant worked six days a week and was sent text messages each week with his roster for the following week. The applicant’s last day of work was 28 July 2019 and he did not return after this date due to medical issues. The applicant was declared unfit for work until the end of November 2019 and on 4 December 2019 obtained medical clearance to return to work on light duties. When applicant contacted the respondent, he was advised that he was made “inactive” the respondent’s records as he had not worked for more than three months. The respondent further advised the applicant would need to reapply for work or be re-inducted.

The respondent contended that the applicant resigned his employment during a telephone conversation on 2 January 2020 and there had been no dismissal at the initiative of the employer.

Outcome

The Decisions of Wayne Shortland, Bronze Hospitality and Ponce were considered in this matter. The Commission acknowledged the nature of the labour hire industry was that where a resignation was given verbally it was not essential that it be confirmed in writing or that in the absence of a request an employment separation need be issued. It was also contended that in labour hire, there may be a lengthy period where no work is provided, however an employer of a casual employee does not repudiate the employment contract when it fails to offer another shift. Further, a casual employee remains employed until a decision is made by the employer that there is no further work and no further work will be offered.

The Commission was not satisfied the applicant actually resigned his employment on 2 January 2020 during a telephone conversation as the applicant continued to engage with the respondent in respect of seeking employment after 2 January 2020 without it being confirmed by respondent that it was their understanding that he had resigned, including their last correspondence of 4 March 2020 which failed to mentioned resignation but provided other reasons for the employment termination.

The Commission found the applicant’s dismissal effective as of 4 March 2020 was made within the prescribed period. The respondent’s jurisdictional objections were dismissed. Commission held that the matter will be subject to further directions and if necessary, arbitration on the merits of the unfair dismissal application. [Where, presumably, the casual “regular and systematic” argument will be explored – in the unlikely event that the matter is arbitrated]

Introduction

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Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad.

Background

In this application for unfair dismissal remedy, the applicant employed as a Licensed Aircraft Engineer (LAME) since January 1978. In 2016 Qantas issued LAMEs with iPads for use at work. The LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees.

Upon being issued with the iPad in May 2016 and in accordance with instructions from Qantas, the applicant enrolled it into the then MDM system. Qantas subsequently changed the MDM system and the applicant enrolled his iPad into the new system known as ‘Comp Portal’. The Comp Portal app had two settings: ‘corporate’ and ‘personal’, regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed.

The Comp Portal privacy statement informed applicant that Qantas could not see a range of personal material stored on the iPad including his web history and photographs. The applicant used the iPad to view and store pornographic and offensive material. Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad. The applicant’s iPad was seized by Qantas and forensically examined.

The investigation

Following examination an investigation commenced in relation to allegations. During the investigation, another female refueller alleged that on three occasions she witnessed the applicant viewing pornographic images in the workplace during working time. These allegations were substantiated and following a show cause process the applicant was dismissed.

The applicant maintained that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The applicant further contended that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad.

Qantas maintained that its investigation substantiated that the applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy.

Outcome

The Commission found a lack of clarity in the SOC and IT Policies in relation to personal use and on the basis that the original Mobility Terms and Conditions suggest that private material can be stored on the iPad. It was also found that the lack of clarity was compounded by unsatisfactory training provided to the applicant when issued with the iPad.

The Commission considered distinction between private use and viewing pornographic and offensive material at work and held that regardless of lack of clarity in relation to private use of the iPad on his own Wi-Fi when the applicant was at home, the applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace.

The Commission found the applicant’s conduct in viewing and storing pornographic and offensive material was a breach of the SOC and the IT Policies and despite the applicant’s apologies and expressions of regret to the female refuellers, the applicant’s denial he was viewing pornography implicitly impugned the credit of the witnesses. The Commission was satisfied there were valid reasons for the applicant’s dismissal and that his dismissal was not harsh, unjust or unreasonable. The application for unfair dismissal remedy was dismissed.

 

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Introduction

This decision concerns an unfair dismissal application contending a “forced resignation” (also known as a “constructive dismissal”). The applicant was a “customer assist specialist” with an energy retailer

Background

The applicant contended that he was forced to resign because, when in July 2020 the company directed him to work from home (in accordance with the COVID-19 restrictions), it refused to pay for or provide him with a home desk to enable him to do so, and also refused to allow him to work from the office or take six weeks’ leave.

The applicant’s job required him to use a computer and speak to customers on the telephone. On 16 March 2020, the company sent an email notice to staff stating that they were now encouraged to work from home because of the COVID-19 pandemic. On or around 1 April 2020, the applicant’s manager told him that the company could allow him to work in the office at present, but that he should start making arrangements to be able to work from home. The applicant replied that he had recently moved to a new house and did not have furniture, including a table or desk to work from. His manager suggested that he look at second-hand websites to procure one.

On 8 May 2020, the company sent an update to staff about working from home. Later that day, the applicant sent his manager an email message, stating that he did not have furniture in his house, and that he was under financial pressure due to medical expenses. He said that he was ill-equipped to work from home but that if the company would cover the cost of a desk, he would buy one. On 11 May 2020, the manager called the applicant and said that the company would not buy him a desk, but that he could continue to work from the office for the time being.

On or around 1 June 2020, the manager said to the applicant that he needed to “sort out arrangements” for working from home. The applicant replied that if the company could not properly facilitate his working from home, then his role was redundant. The manager told the applicant that redundancy was [ironically] “not on the table”.

On 7 July 2020, the Victorian government announced the reintroduction of stage 3 restrictions, which mandated that, where employees could work from home, they were required to do so. The same day, the company’s CEO sent an email to all employees stating that unless there was an urgent need to come to the office, they were to work from home. On 8 July 2020, the manager spoke to the applicant and told him that he was required to work from home. Later that day, an official of the applicant’s union sent an email to the company’s human resources manager, stating that the applicant had been directed to work from home without being provided with “the appropriate equipment necessary to carry out his work from home, namely a desk”. The union requested a dialogue with the company about the applicant either being reimbursed for the cost of purchasing a desk or being allowed to continue to work from the office.

On 9 July 2020, the HR Manager replied to the union, stating that in line with WorkSafe Victoria guidelines, the company was providing employees with all reasonable equipment and support necessary to work from home, including a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist, and online resources, but that the company would not be providing desks or reimbursement for purchasing them, as it was not fair and reasonable to do so. The union proposed that, as the applicant already had an ergonomic chair and laptop, the company could simply buy him a desk instead [hang-on, I thought he did not have any furniture?].

Contrary to the directions given on 7 and 8 July 2020, the applicant worked from the office on Friday, 10 July 2020. He then took leave on 13 and 14 July 2020. On Wednesday, 15 July 2020, the manager called the applicant and said words to the effect of “where are you at with getting a table?” as the applicant was not to continue working from the office.

Later that day the applicant submitted an application to take six weeks’ leave, commencing on Monday, 20 July 2020. His manager checked the leave calendar, and then advised the applicant that his request could not be accommodated.

On Monday, 20 July 2020, Mr McKean sent Mr Burnside an email stating: “I wish to advise that I am resigning from [the company] effective immediately. I will leave my computer and headset in my old locker, which I will keep locked and surrender my security pass to the front reception staff”. His manager replied to the email accepting his resignation.

Finding

The FWC found the applicant’s argument that he was forced to resign was “entirely without merit”, noting that applicant could have purchased a desk rather than resigning and that the applicant conceded that he has since purchased a table, stating that his position not to purchase a desk was a position of principle.

In dismissing the application, the Commission considered the respondent’s requirements for the applicant to work from home came nowhere near constituting an occupational health and safety risk or a contravention of the Occupational Health and Safety Act 2004 (Vic), noting that the respondent had provided adequate resources for employees to work from home as per Government guidelines. Concluding that it was reasonably practicable for applicant to buy himself a desk and that the request for six weeks leave was excessive and not unreasonably refused by employer; and ultimately determining that there was no forced resignation.

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Introduction

What happens when an employee refuses to undertake duties that they consider “beneath their station” and the employee resigns? Then the employer moves the resignation date. “Unfair and unreasonable” says the FWC.

Background

In this matter, the applicant was employed as a hospital data manager from mid-March 2020. However, despite his position description providing that the applicant undertake data entry work he refused.

Meetings were held with human resources and senior management; the applicant was formerly directed to undertake the data entry work.

This resulted in the applicant tendering his resignation subject to a condition that he first be allowed to take his accrued leave, wanting his resignation to be effective from 1 June but with the date adjusted for his annual and long service leave which may take the date up to December 2020.

The respondent explained that it could not accommodate this request and that termination would be effective from 1 July 2020, whereupon he would receive a payment of his termination entitlements.

The applicant submitted that he only offered to resign on the condition that he take all of his accrued annual and long service leave, from 1 June 2020, such that his employment would not end until late 2020 or early 2021. The applicant further submitted that he did not agree with the resignation date of 1 July 2020 and that by insisting upon a termination date of 1 July 2020, the hospital terminated his employment and that his dismissal was unfair as there was no valid reason for him to be dismissed.

The respondent submitted that it had accepted the resignation despite the extension of the resignation date to 1 July 2020, so that the applicant could receive more favourable tax treatment. In doing so, the respondent argued that the change of date did not affect the essential character of his resignation or on the other hand, the dismissal was not unfair, because the applicant had chosen to resign rather than perform all of the duties of his position as required.

Finding

The FWC found that it was clear from email correspondence the applicant was proposing that from 1 June 2020, he would take all of his leave, and that his resignation would be effective on the date his leave expired. Further noting the respondent processed the termination of applicant’s employment with effect from 1 July 2020 which was clearly against the applicant’s wishes and therefore the applicant’s employment was terminated at the initiative of the hospital.

In finding the employee was in fact dismissed and did not resign, went on to determine that there was no valid reason for dismissal nor was the applicant notified of the reason for dismissal or given any opportunity to respond; and that the dismissal by the respondent was unreasonable, and therefore unfair.

Outcome

The Commission considered what if any remedy should be awarded.

The FWC noted the applicant resigned from his employment rather than agree to comply with the direction of the hospital that he undertake the data entry component of his role as data entry manager and considered were the applicant to be reinstated, the requirement that he undertake all relevant data entry would likely remain a bone of contention between the parties.

There was no basis for a legitimate dispute because an employee must simply perform all of the duties of his or her position and that upon reinstatement, the applicant would want to take a substantial amount of leave and proposed that he be treated as having been on leave between the end of his employment and his reinstatement.

The FWC also noted the applicant’s “particular expectations about the modalities of taking and being paid for leave upon his reinstatement, some of which appear to be unworkable, tells against a conclusion that reinstatement is appropriate, because it begs the question as to what will occur if, as seems likely, the hospital rejects some or all” of the applicant’s proposals.

The FWC decided that it would be inappropriate to reinstate applicant and ordered compensation equal to the “remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”. In this case, the Commission’s best estimate had applicant not been dismissed he would have remained employed for a period of nine weeks beyond the date on which his employment with the respondent ended – the amount of $6,919.45 with deduction of taxation required by law.

Introduction

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Snippet: Cost awarded against ex-employee in unfair dismissal case.

In somewhat rare event the FWC has awarded costs against the applicant in an unfair dismissal matter, after the applicant withdrew her application.

Background

The FWC in this matter requested that the parties file their written submissions by a certain date. The company requested and was granted further time to submit its arguments.

The applicant commenced performing work for the company on 18 April 2018 until she was notified on 11 January 2020 that she was not required to perform any further work.

The applicant (ie the ex-employee), presumably deciding that her case was not strong, sought to discontinue the matter.

Upon the applicant ceasing to sue for unfair dismissal, the respondent sought an award from the FWC for the applicant to pay its legal costs resulting from the unfair application. The FWC gave the parties time to make submissions on the subject, however the applicant – despite an extension of time – failed to respond the FWC’s request.

The company allegations included the embezzlement of its funds

The respondent argued that the application for unfair dismissal was made vexatiously and without reasonable cause and had no reasonable prospect of success causing reh company to incur costs as a result the applicant’s unreasonable acts and omission.

The company successfully argued that the applicant:

  • Was an independent contractor not an employee;
  • Was aware that the company employed three people (a small business employer); and
  • Made unauthorised transactions from the company’s bank account and redirected payments to her own account.

The Company sought costs of $14,150.

Outcome

In finding that the company had incurred significant legal costs, however was not satisfied that the application for unfair dismissal was vexatious or without reasonable cause, finding that the applicant would not have foreseen the number of jurisdictional issues; however found that the applicant had substantially drained funds from respondent’s account and on this basis the application had no reasonable prospect of success.

As a result, the applicant had caused respondent to incur costs because of an unreasonable act in connection with the continuation of the matter beyond the conciliation conference and applicant’s actions which would have significantly impacted on the company.

The FWC ordered the applicant to pay respondent $4,000 in weekly instalments of $100.

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Introduction

This is Full Bench decision of the Fair Work Commission is a perfect example where things can get well out of hand, ending in a lot of frustration (for all parties) and huge costs to a business. The problem being that he was achieved the outcome he sought! All this before we even kick off the case in proper.

The “litigant” or “applicant” in this matter was described as a lawyer. Whether his legal skills were required by the applicant was unclear. However, put this was one determined person, who was determined to get his own way…and did (to a point).

As I noted in the headline, this matter is still to be determined despite at least (by my count and set out at the end of this report) 50 separate actions, involving:

  • The Fair Work Commission.
  • The Full Bench of the FWC (2 appeals).
  • The Federal Court of Australia (5 applications).
  • Allegations by the applicant, including letters to the President of the FWC and Commonwealth Attorney General that the DP hearing the matter was unfit to hold office.
  • Disputing the right of the respondent to be legally represented and objecting to the legal firm they chose.

Background

The applicant was engaged to perform work by the respondent, on 19 November 2018. There is a dispute about whether he was engaged in the capacity of employee or independent contractor. The engagement was terminated effective from 31 January 2020. The applicant filed an unfair dismissal application in respect of the termination.

Cutting to the “last step” (ie beyond the 50 previous actions) the FB found somewhat in favour of the applicant (the “squeaky wheel” does indeed get the oil), finding that in the first instance there was no proper process that clearly identified that the DP had formally allowed the respondent to be legally represented (a matter the FB allowed in the appeals hearting). As a consequence of allowing the appeal and finding in the applicant’s favour, the matter was to be heard by another member of the FWC. The FB stating:

“The two errors we have identified – namely allowing [the respondent] to be represented by [law firm] without having decided to grant permission for legal representation pursuant to s 596, and denying the applicant procedural fairness in relation to the genuine redundancy issue – are significant matters. At least the latter, and arguably the former, constitutes jurisdictional error, and both involve manifest injustice to [the applicant]. In the circumstances, we consider that it would be in the public interest to grant permission to appeal…

“We consider that the appropriate course, having regard to the history of this litigation, is to remit [the applicant’s] unfair dismissal application to a member of this Full Bench for further consideration (including the determination of any application for permission for legal representation) on the basis of the evidence admitted to date and such further evidence as the member may decide to admit.

“It is not necessary in the circumstances to deal with the other matters raised by the first appeal. In relation to the various allegations made against [legal firm], it is sufficient to say that we are not satisfied that [legal firm] did anything other than to act bona fide on the basis of the instructions provided by its client…[the applicant] largely conceded at the appeal hearing that he could not provide evidence of any deliberate malfeasance on the part of [legal firm]. Certainly, the record of the proceedings before the Deputy President does not provide any indication to us that [legal firm] has acted in any improper way”.

With the FB side-stepping the second appeal by:

“The grounds for Mr McKerlie’s second appeal, including the grounds for the grant of permission to appeal, were as follows:

‘1. Deputy President Boyce is unfit to hold judicial office.

  1. Deputy President Boyce has demonstrated egregious and deliberate bias against the Applicant in the conduct of the proceedings to date including in his decision on the application for disqualification.
  2. It is contrary to the obligation of the members of the Fair Work Commission to allow Deputy President Boyce to continue to preside over these proceedings or any other proceedings as his widely publicised conduct since his appointment to the Fair Work Commission is calculated to diminish public confidence in the Fair Work Commission’.

“The first ground is not reasonably arguable. The Commission is not invested with power to rule on the fitness for office of its own members. In relation to the second and third grounds, the relief which [the applicant] could expect to obtain if he is granted permission to appeal and his second appeal is upheld is that his matter is remitted for further consideration by a different member of the Commission. Having regard to our disposition of the first appeal, there would be no utility in us considering the second and third grounds of the second appeal. For these reasons, we refuse permission to appeal in relation to the second appeal”.

After all this effort and expense, the applicant is effectively back to square one: he still needs to provide that he was an employee (not a contractor) and that his redundancy amounted to an unfair dismissal. I suspect the FWC will find that if the applicant had put his energies to finding another job, all the trouble he has gone to is for naught.

Litigation leading up to and including two appeal in the Fair Work Commission

As mentioned earlier, before setting out the list of legal challenges by the applicant, let me summarise that the applicant was not happy with the way the Deputy President addressed his case (calling for “his head”) or the respondent’s lawyers who he also made unflattering observations.

The history of the applicant’s litigations are dot-pointed as follows:

1.       The applicant was engaged to perform work by the respondent on 19 November 2018.

2.       There is a dispute about whether he was engaged in the capacity of employee or independent contractor.

3.       The engagement was terminated effective from 31 January 2020.

4.       The applicant filed an unfair dismissal application 5 February 2020.

5.       The matter was listed for a telephone conciliation to be held on 6 March 2020.

6.       However, on 21 February 2020, the applicant wrote to the Commission alleging that he had received an “extortionate letter” from lawyers acting for the respondent. He requested that a hearing be organised so that he could seek orders including that the respondent’s lawyers be barred from further participation in the proceedings and that the Commission appoint lawyers to act on the respondent’s behalf.

7.       The conciliation conference was cancelled and the matter given over to Deputy President Boyce (the “DP”) for a formal arbitration 27 February 2020.

8.       [By this stage neither the respondent nor its lawyers had submitted the appropriate forms required by the FWC].

9.       2 March 2020 the applicant complains to the DP’s chamber (by email) that the respondent’s legal representatives had “flouted, without reason, a clear direction made by the Commission … could undermine the respondent’s application to be legal[ly] represented…”. The DP responding by ordering that the lawyers provide the appropriate forms within 7 days.

10.   The matter was listed for a mention and directions hearing, by telephone, to be conducted on 6 March 2020.

11.   The respondent’s legal representatives filed the appropriate forms on 4 March 2020, raising two jurisdictional objections, namely:

  • The Applicant was not an employee; and
  • The dismissal was a case of genuine redundancy.

12.   Also on 4 March 2020, the applicant filed a submission with a number of accompanying documents in which he alleged that respondent’s lawyers had engaged in conduct which was “misleading and deceptive” and which “amounted to an attempt to extort the Applicant’s compliance with demands made by the Respondent’s solicitors and an act of contempt of the jurisdiction of the Commission”. The applicant went on to say in his submission:

“The Applicant seeks orders to redress the conduct of the Respondent’s solicitors including but not limited to an order that the Respondent instruct new solicitors drawn from a list provided by the Fair Work Commission”

13.   The DP conducted the directions hearing on 6 March 2020.

14.   16 March 2020, at the request of the parties, the matter was listed for a conciliation conference before a different member of the Commission to occur on 25 March 2020.

15.   This conference was not successful in resolving the matter, which was then allocated back to the DP.

16.   The respondent’s lawyers then raised its jurisdictional objections (by email 27 and 30 March 2020) with the DP’s chambers.

17.   On 30 March 2020, the applicant sent an email to the DP’s chambers:

“I write to request clarification of the issues which are to be the subject of the hearing on 8 May.

The matter was escalated to a hearing without conciliation on my request for consideration of the conduct of the Respondent’s solicitors in the matter.

I can understand that this would translate to a hearing on the Respondent’s request for legal representation but I am unsure of the ambit of the hearing regarding jurisdiction.

Is this hearing intended to be solely in regard to those two issues or is it intended that all issues between the parties are to be determined in this hearing?

I understand that the jurisdictional issue may be determinative, but I am not sure if it is intended to address the substantive issues between the parties if it is decided the Applicant has jurisdiction.

Could you please advise by return, thank you”

18.   The DP’s Associate sent the following reply that afternoon:

“I refer to your email below.

The matter is programmed for a hearing on the jurisdictional objections only. The hearing is not intended to address the “substantive issues” between the parties.”

19.   On 8 April 2020, the applicant filed an application for an order for the production of documents. The same day, the respondent sent the Commission an email indicating that it opposed the order sought and wished to make submissions about it.

20.   On 9 April 2020, directions were issued by the DP’s chambers for the parties to file outlines of submissions about the issue, and it was listed for an interlocutory telephone hearing to be held on 21 April 2020.

21.   On 17 April 2020, the applicant filed a document entitled “Applicant’s Amended Outline of Submissions on Legal Representation”, which addressed at length the applicant’s contention that the respondent ought not be permitted to be represented by its current lawyers. He also filed a witness statement made by himself, which was entitled “Applicant’s Statement Regarding the Issues of Representation, Jurisdiction and Notice for Production of Documents”. This statement addressed the issue of the basis of the applicant’s engagement (whether he was an employee or independent contractor) but did not deal with the circumstances of the termination of his engagement or the issue of whether he had genuinely been made redundant. The statement also briefly dealt with the issues of legal representation and the production of documents.

22.   At the interlocutory hearing on 21 April 2020, a solicitor employed by the respondent’s lawyers, appeared for the respondent. The transcript of the hearing shows that the respondent’s lawyer neither sought nor was granted permission to appear for the respondent, albeit no objection was made by the applicant.

23.   On 24 April 2020, the respondent filed two further witness statements, in response to the applicant’s submissions, which dealt with the basis of his engagement and the question of whether he was covered by an award.

24.   Up until this point, there was no communication from the DP’s chambers to suggest that the respondent had been granted permission for legal representation.

25.   However, at the hearing on 8 May 2020, the DP (mistakenly) stated that: “Okay. I note permission has already been granted for [name] to appear today as the legal representative for the respondent”. The DP pressing:

“And as I’ve said, I’ve already determined under section 596 of the Act, that it would be more efficient, given the complexity of some of the arguments and issues being raised, to go to jurisdictional questions for the respondent to be represented. And I note that they have some evidence in their evidence that was already filed going to the capacity for the respondent to represent itself”.

26.   The DP also (in conjunction with a technical issue which required resolution) allowed the applicant a 40-minute adjournment “to do any further preparation or collect your thoughts in relation to the issue of genuine redundancy…”.

27.   There was insufficient time for the respondent’s lawyer to undertake his cross-examination, so the matter was set down for further on 15 May 2020.

28.   12 May 2020, the applicant filed written submissions on the issue of genuine redundancy and, in addition, a further witness statement made by himself with a number of annexed documents in relation to that issue. Upon being copied into this material when it was filed by email, the respondent immediately sent an email to the Deputy President’s chambers which, omitting formal parts, stated:

“The respondent opposes the tendering of the additional statement as the applicant has already finished his examination in chief and therefore cannot tender new statements.

“Could the Commission advise whether this statement will be accepted as that will increase our time to prepare for cross-examination on Friday.”

29.   The Deputy President’s chambers sent the following email (omitting formal parts) to the applicant later the same day:

“I refer to the matter above, and the Applicant’s email below (and the attachments therein).

Leave has neither been requested nor granted for the Applicant to tender (or otherwise rely upon) further evidence in these proceedings.

Leave has only been granted to the Applicant for him to make further submissions on the jurisdictional issue of genuine redundancy. I note that he has filed those submissions.

In view of the foregoing, the Deputy President advises that the parties should proceed on the basis of the evidence filed as at the 8 May 2020 (i.e. the time that the Respondent’s evidentiary case in these proceedings closed).”

30.   In response to this email, the applicant sent an email in reply stating that he would seek leave to tender the evidence he had filed when the hearing of the matter resumed.

31.   On 13 May 2020 the applicant sent a complaint to the President of the Commission, Ross J, about the Deputy President’s conduct. In this complaint, the applicant contended that the Deputy President was unfit to hold judicial office, had displayed incompetence, ignorance and disinterest in the conduct of his case, and was personally biased against him. He requested that the President intervene in the matter to vacate the hearing listed for 15 May 2020, declare the proceedings in the case to date null and void, and allow the matter to be relitigated. The applicant sent a complaint raising similar matters to the Commonwealth Attorney-General on 14 May 2020.

32.   At 6.16 pm on 14 May 2020, the applicant sent an email to the Deputy President’s chambers giving notice that, at the commencement of the hearing on 15 May 2020, he would make an application for the Deputy President to recuse himself from further involvement in the proceedings and that, should the Deputy President decline to recuse himself, he would seek an adjournment to enable him to file an appeal against that decision.

33.   At 7.41 pm that evening, the Deputy President’s chambers issued directions requiring the applicant and the respondent to file any written submissions and evidence in respect of the recusal application by 11.30 am on 15 May 2020 (i.e. the following day). The parties were notified in the same email that at the conclusion of the hearing, the matter would be adjourned for a date to be fixed after any decision and written reasons in relation to the recusal application had been issued. Neither party filed submissions in response to these directions. the applicant sent an email that simply outlined the matters he intended to raise at the hearing, and the redone declined to file any submissions at all.

34.   At the hearing on 15 May 2020, the applicant re-agitated the matters he raised in his complaint to the President and the Attorney-General and handed up copies of both complaints. At the conclusion of the hearing, the Deputy President reserved his decision.

35.   On 25 June 2020, the Deputy President invited submissions concerning whether s 16 of the Parliamentary Privileges Act 1987 (Cth) applied such as to preclude the admission into evidence of the applicant’s complaints to the President and the Attorney-General and, if so, whether there was any utility in determining the issue of the alleged apprehension of bias. the applicant (on 30 June 2020) filed a submission in which he rejected the proposition that the Parliamentary Privileges Act applied, denied that he had tendered into evidence the two complaints, and said it was not necessary for him to prove facts which were within the personal knowledge of the Deputy President.

36.   On 26 May 2020, the applicant filed an application in the Federal Court of Australia (Court), seeking that the following relief:

(1) A writ of prohibition prohibiting the Deputy President from further involvement in the applicant’s unfair dismissal application.

(2) A declaration that the Deputy President is not a fit and proper person to hold judicial office, particularly the office of Deputy President of the Commission.

(3) An order that the applicant’s unfair dismissal application be transferred to the Federal Court to be heard together with other matters arising.

(4) An interlocutory injunction against the Deputy President from taking any further action or having any further involvement in the applicant’s unfair dismissal application pending the determination of Mr the applicant’s application before the Court.

37.   The applicant lodged the first appeal on 29 May 2020. His notice of appeal included an application for a stay pursuant to s 606 of the FW Act. The presiding member of this Full Bench heard and dismissed the applicant’s stay application on 2 June 2020.

38.   Following the stay decision, the applicant wrote to the presiding member’s chambers on 3 June 2020 inquiring as to the procedure for the determination of whether the respondent has permission to be legally represented at the appeal hearing. The presiding member’s chambers responded stating that when the matter is listed and directions are issued, the parties will be directed to file and serve submissions should they wish to seek permission to be legally represented at the appeal hearing and that it is at the discretion of the Full Bench when the issue of permission to be legally represented is to be determined. The applicant was informed that he would be given an opportunity to respond prior to any such determination being made.

39.   On 9 and 26 June 2020, the applicant filed two further applications in the Federal Court. The application filed on 9 June 2020 sought, among other things, an injunction preventing the Commission from further proceeding in any manner in respect of the unfair dismissal application or the first appeal. The application filed on 26 June 2020 sought an order that the respondent’s lawyers be restrained from acting in respect of that application, the unfair dismissal application and any other legal proceedings in which the applicant is a party.

40.   On 3 July 2020, the Deputy President issued a document entitled “the applicant Decision” which set out the Deputy President’s reasons for a decision which was said to have been earlier made by him granting the respondent’s permission to be legally represented in the proceedings (representation reasons). In the representation reasons, the Deputy President stated that the recusal application would be determined in due course.

41.   On 6 and 8 July 2020, the applicant filed two more applications in the Federal Court. The application filed on 6 July 2020 sought an order restraining the Commission from taking any further action in respect of the unfair dismissal application and the first appeal until further order. The application filed on 8 July 2020 sought a suppression order prohibiting the publication or disclosure of the identity of the applicant in respect of that proceeding and any proceedings currently before the Commission.

42.   On 15 July 2020, the Deputy President issued the recusal decision, in which he dismissed the applicant’s recusal application.

43.   The applicant’s unfair dismissal application was then listed for mention/ directions on 16 July 2020, and also listed for a further jurisdictional hearing on 3 August 2020 before the Deputy President.

44.   The respondent filed an application for costs on 24 July 2020.

45.   On 28 July 2020, the applicant lodged the second appeal and sought a stay of the whole of the proceedings before the Deputy President, specifically before the hearing of the unfair dismissal application which was to resume on 3 August 2020. That same day, the Deputy President’s chambers sent an email to the parties noting the multiple appeal proceedings pending before the Commission and the application for interlocutory relief pending before the Court. The email advised that the listing in that matter was vacated to a date to be fixed, being a date subsequent to the resolution of the appeals before the Full Bench of the Commission and the matter before the Court.

46.   On 5 August 2020, the Court dismissed the applicant various applications for interlocutory relief.

47.   The same day, the presiding member of the Full Bench issued directions and both appeals the applicant has lodged two appeals, application lodged by the applicant relating to the termination of his engagement with the respondent.

48.   The first appeal filed on 29 May 2020 relates to a number of decisions interlocutory and procedural decisions (or purported decisions) made by the Deputy President, which are characterised by the applicant as follows:

  • the decision not to take any action in regard to the applicant’s complaint that the respondent’s solicitors had committed extortion by sending a letter to the applicant demanding the performance of various demands before the respondent company would pay him monies already owed to him;
  • the decision not to take any action in regard to the applicant’s complaint that the respondent and/ or the respondent’s solicitors had committed conspiracy to defeat justice in order to put before the Commission a document that had been obtained by fraud;
  • the decision not to take any action in regard to the applicant’s complaint that the respondent’s solicitors had sought to mislead the Commission by submitting a document purporting to be the applicant’s resume, constituted a “representation” by the applicant to the respondent relevant to the proceedings before the Commission;
  • the decision to give the respondent permission to have legal representation in the proceedings;
  • the decision to allow the respondent’s lawyers to represent the respondent in the proceedings;
  • the decision that the issue of “genuine redundancy” is a “jurisdictional objection”;
  • the decision to refuse to grant the applicant an adjournment to prepare submissions and evidence in regard to the issue of “genuine redundancy”;
  • the decision of the Deputy President on 12 May 2020 not to allow the applicant to file a statement and annexures relevant to his submissions regarding the issue of “genuine redundancy” ; and
  • the decision of the Deputy President on 14 May 2020 to compel the applicant to prepare and file submissions on the issue of his application that the Deputy President recuse himself from further proceedings on the basis of his not being fit to hold judicial office, his demonstration of active prejudice and the apprehension of bias against the applicant both as a member of a class of persons, unrepresented workers, and personally.

49.   The second appeal, filed on 28 July 2020, relates to a decision issued by the Deputy President on 15 July 2020  in which he dismissed the applicant’s application for the Deputy President to recuse or otherwise disqualify himself from further involvement in the proceedings.

50.   At the commencement of the hearing of the appeals on 4 September 2020 and over the opposition of the applicant, the Full Bench granted permission for the respondent to be legally represented in the proceedings for reasons that it was considered that legal representation would permit the matter to be dealt with more efficiently, having regard to the complexity of the matter. The FB (ironically) finding: “…[The applicant’s] unfair dismissal application has been the subject of a significant degree of procedural complexity…”