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Similar to Preventing employment claims: Dealing with the Three Amigos: Unfair Dismissal, Adverse Action and Bullying
Preventing employment claims: Dealing with the Three Amigos: Unfair Dismissal, Adverse Action and Bullying
- 1. Dealing with theThree Amigos: Unfair Dismissal, Adverse Action and Bullying Preventing Employment Claims
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- 5. Unfair dismissal • Aperson is protected from unfair dismissal if: • Completed the minimum employment period; and Either • Annual earnings do not exceed the high income threshold (currently $142,000) • Covered by an Award or an Enterprise Agreement • Was the dismissal harsh, unjust or unreasonable • Compensation cap 6 months salary • Not a case of “genuine redundancy”
- 6. Unfair dismissal Trends in2017 • Dismissals regarding breach of policy • The investigation
- 7. Procedural fairness Crawford vBHP Coal Pty Ltd •Employee dismissed for allegedly breaching BHP’s safety policies while conducting maintenance on machine •Second incident where fitter alleged to have breached safety procedures in less than four months. In December 2015, given final warning for throwing rattle gun •FWC accepted employee should have known his actions were in breach of BHP’s safety procedures
- 8. Procedural fairness • FWCcritical of investigation, including: – Show cause letter – Fitter not entitled to participate in investigation of the incident – BHP “rushed” to suspend him without his involvement • Dismissal was “unreasonable” due to lack of procedural fairness, and “unjust” because decision to terminate affected by allegations he was rude and dismissive (which weren't put to the employee) • Awarded $25,448 in compensation
- 9. Social media Clint Remmertv Broken Hill Operations •Diesel fitter on final warning for previous instance of bullying •Commented on a post made by another employee “I’ve seen bigger f**kwits with peaks on their hat” •12 employees participated, 4 stood down
- 10. The investigation anddecision
- 11. Lessons - Unfairdismissal NotifyNotify performanceperformance issuesissues Valid reasonValid reason SufficientSufficient investigationinvestigation Relevant showRelevant show causecause Opportunity toOpportunity to improveimprove
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- 13. Lessons from recentcases Operational requirements •Whether a redundancy is genuine is to be assessed at the time of dismissal •Adding qualifications and duties to a role can create a ‘genuine redundancy’ •Operational requirements do not need to be sole reason for dismissal Obligation to consult •Must provide employees with an opportunity to respond/provide input where there is a proposed dismissal
- 14. GENERAL PROTECTIONS ANDADVERSE ACTION General Protections and Adverse Action
- 15. General protections andadverse action Workplace rights •Workplace right to make a complaint or enquiry •Workplace right to minimum entitlements •Workplace role or responsibility •Workplace right to engage in a process or proceeding •Adverse action in connection with unlawful discrimination eg race, gender •Freedom of association
- 16. General protections andadverse action
- 17. General protections andadverse action • Examples of adverse action • Transferring an employee to another position • Starting an investigation process • Issuing a warning letter • Altering a roster • Suspension • Treating an employee less favorably than another employee
- 18. General protections andadverse action Because of: Requires a determination of fact as to the reasons which motivated the person who took the adverse action Even if one of the reasons for termination is a prohibited reason – will be a breach: Managers required to provide evidence of the reasons they took the action Beware: decision makers as accessories ! Important consideration – the reverse onus of proof
- 19. General protections andadverse action • Trends 2017 • High payouts • Has the decision maker made out their case?
- 20. General protections andadverse action CFMEU v Hail Creek Coal Pty Ltd •One of the largest payouts for an adverse action claim - $1.3 million •Employee sustained back injury – received $637,000 in compensation •Stood down by employer for safety reasons. Subsequently terminated because couldn’t perform role •Employer said “primary and only reason” was safety •Employer didn’t prove that compensation claim was excluded from the reasons for dismissing the employee
- 21. General protections andadverse action - Lessons Paperwork to support decision made – beware disclosure Clear decision making processes Single decision maker, if appropriate Quarantine facts, if appropriate
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- 23. Anti-bullying – FairWork Commission A worker who reasonably believes they have been bullied at work may apply to the FWC for an order to prevent the bullying
- 24. Anti-bullying • FWC canmake “stop bullying” orders: • Stop conduct; monitor conduct, development of policies/procedures, require compliance with policy, employer to provide information/extra support/training to workers, mediation, counselling, transfer of bullier, written warnings, apology • Worker may seek a penalty if there is a contravention of a stop bullying order TheThe workerworker HASHAS beenbeen bulliedbullied There is aThere is a RISK itRISK it willwill continuecontinue Order toOrder to stopstop bullyingbullying
- 25. Anti-bullying A worker isNOT bullied: •Single incident •“Reasonable management action” • proper performance management • reasonable supervisory practices • allocation of work according to employment practices • operational reasons (changes or restructuring) •Reasonableness of action taken by employer established objectively (actual reasons of decision-maker are not relevant) The test for “unreasonableness”: •The particular circumstances •Policies or procedures followed •Investigations in a timely manner
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- 27. Take home messages •Valid reason and procedural fairness when dismissing employees • Always take contemporaneous notes of important meetings, incidents and decisions • Maintain a respectful working relationship with colleagues at all times and remember reasonable management action taken in a reasonable way is the best way to remain protected
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Editor's Notes
- #22 Evidence of decision maker critical Uninformed and ill advised decision making may lead to contraventions Care must be taken when making decisions Have a clear decision making process and document reasons