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Tag Archives: unfair dismissal

 by Stephanie Zillman | 14/08/2012 | 1 comments

An employer has been ordered to pay nearly $40,000 in compensation to a former employee following an unfair dismissal hearing – the arbitrator said the employer’s response had, from the very outset, “no reasonable prospect of success”.

In the case of Stan Kunce v Deliver Australia Pty Ltd (U2012/6097), Fair Work Australia found that while the employer had lodged material in response to an unfair dismissal claim, on the day of the hearing it withdrew its witnesses and failed to make any submissions.

The employer was represented by its HR manager, and Commissioner Bissett was scathing of the manager’s preparedness. “The only motive that can be attributed to the (employer) for its behaviour in the hearing is that it maintained its opposition to the claim of the (employee) when, on some reflection in the days prior to the hearing, it was apparent that its position was not defensible,” Commissioner Bissett said. “It was only after the decision was made and the order for compensation was issued did the (employer) seek to engage in dialogue with the (employee) on some other basis for settling the claim,” she added.

The Fair Work Act allows for one party to pay another party’s costs if their application (or response to an application) is vexatious, without reasonable cause or where it should have been apparent that is had no reasonable prospect of success.

In this particular case, the unfairly dismissed employee submitted that the employer changed the reasons it relied on for termination, produced no evidence in relation to its reasons, failed to cross-examine its own evidence and provided “limited” submissions in its defence. As such, the former employee argued that the employer’s lack of response could be seen as acceptance that it had little chance of success. “Whilst the [employer] now pleads naivety and inexperience with tribunal procedures, no such matter was brought to the tribunal’s attention during or prior to the hearing,” Bissett found.

The employer has some 40 employees on staff, and the HR manager had ample opportunity to seek advice or assistance prior to the hearing, but chose not to. Bissett found that while the reasons for termination weren’t changed as alleged by the aggrieved employee, it must have been ‘reasonably apparent’ immediately before and during the hearing that the employer’s response had no reasonable prospect of success.

In making her decision, the arbitrator took into consideration the employer’s apparent lack of knowledge of the tribunal procedures, but was also mindful that having withdrawn its witnesses the employer was aware, by its response to questions by the tribunal, that without its witnesses it could not substantiate its allegations. “Ignorance, however, can be no satisfactory defence against the claim for costs,” Bissett ruled.

Commissioner Bissett ruled that the employer pay costs incurred the day before and on the day of the hearing.

HR takeaway

The case serves as warning for HR to assess the risks that can come with defending claims. All up, the employer was ordered to pay the maximum penalty of 26 weeks’ pay, coupled with the costs for representation during the hearing. It’s important to seek accurate, strategic advice as soon as a claim is received to ensure risks are minimised.


17 July 2012 7:18am

 A senior corrections officer who was dismissed following his third domestic violence conviction has been reinstated, after a tribunal found an insufficient connection between his out-of-hours conduct and his job.

The case is a useful reminder of factors to consider when disciplining employees for conduct that occurs outside of work hours, say the Lander & Rogers workplace relations and safety team in a recent Bulletin.

The worker in question was a senior corrections officer at Goulburn Correctional Centre.

After his third conviction for domestic violence, his employer – Corrective Services NSW – terminated his employment.

The worker sought reinstatement.

According to the Bulletin, the employer based its decision on two grounds:

    1. that the worker’s history of criminal offences was fundamentally incompatible with the role of a corrections officer, whose role involved upholding the law, and with public service employment generally; and

  1. that as a result of his criminal history, Corrective Services had lost trust and confidence in him.

In the NSW Industrial Relations Commission, Commissioner Elizabeth Bishop ordered Corrective Services to reinstate the worker and pay back his lost wages.

“Central to the Commission’s reasoning was the fact that Corrective Services had failed to show a sufficient connection between [the worker’s] convictions and his employment, or that his convictions would have an adverse impact on the integrity or reputation of Corrective Services,” the Bulletin says.

The worker acknowledged that his convictions had the effect of tarnishing his employer’s reputation and integrity, but Commissioner Bishop held that this acknowledgement was only his opinion, and wasn’t determinative.

Landers partner Neil Napper says third-party evidence of reputation damage was lacking.

“Media comment or feedback from third parties, whether they’re suppliers or customers or clients of the organisation would be typical examples [an employer could rely on].”

The problem is that seeking out such evidence – if it isn’t forthcoming – involves publicising the situation, which would be like “cutting your own throat”, he says.

The Bulletin also notes that the Commissioner rejected the employer’s assertion that it had lost trust and confidence in the worker.

“No reasons were given for the [employer’s] assertion, nor was it supported by evidence,” the Bulletin says.

In fact, the Commissioner drew attention to the worker’s “totally unblemished work history”, his dedication, and the commendations he had received during 15 years of service.

“This case demonstrates that the mere fact that an employee has engaged in reprehensible, and even criminal, conduct does not automatically give an employer the right to take disciplinary action,” the Bulletin says.

“A sufficient connection with the employee’s employment is required.”

Avoid surprises

Napper says that the appropriate response to out-of-hours misconduct comes back to the employer’s policies and procedures.

“For example, is there a disciplinary policy that deals with these sort of infractions? What does it say? What sort of powers does it give or purport to give to the employer short of dismissal? Could there be a demotion? Could there be some sort of final warning? What does the policy provide for? Has that been communicated to staff? Are they aware of it?

“This all goes to the notion of fairness,” Napper says.

“If and when the employer wants to take action, will they be seen as acting in a fair and reasonable way?”

These days, any disciplinary action can be the source of counter action by employees or their unions, Napper warns.

“In order to make sure you get it right as an employer, you really need to make sure that any step you take doesn’t come as a surprise to the individual.

“The general test is if it’s going to be a surprise then you’ve probably got it wrong,” he says.

Drawing on other key cases, the Landers team offers three tips for employers regarding out-of-hours conduct:

    1. Ensure that clear policies are in place concerning the conduct of staff while they are in uniform or travelling for a work-related purpose. The importance of the policies should be clearly impressed on employees, and the consequences for breaching a policy should also be made clear.

    1. When contemplating disciplinary action against an employee for their out-of-hours conduct,
      consider whether it occurred while they were in receipt of any allowance or other benefit. That won’t necessarily be a determinative factor in establishing the fairness of subsequent action, but it could be relevant.
  1. Before taking disciplinary action for an employee’s out-of-hours conduct, consider whether the conduct could reasonably be expected to damage the company’s reputation, or otherwise expose it to liability.

Patricia Karvelas, Political correspondent | March 19, 2009

THE Rudd Government faces the defeat of its workplace legislation today unless Julia Gillard agrees to last-minute changes to Labor’s unfair dismissal policy to appease crossbench senators.

Independent senators Nick Xenophon and Steve Fielding are threatening to vote against the Fair Work Bill unless they secure a higher threshold for unfair dismissal provisions so a larger number of new employees is exempt from making claims for 12months.

Both senators want the Government to define small business as employing up to 20 staff, rather than Labor’s preferred 15.

But the Coalition, which has not revealed how it will vote on the bill, acknowledged that several of Labor’s amendments resolved their objections to the bill.

The Opposition’s workplace relations spokesman Michael Keenan told The Australian yesterday the Government had made various concessions that made the bill more appealing.

“They have essentially acknowledged the concerns that we have about greenfields (new project) agreements and they have accommodated them,” he said. “Our concerns were that the way they had structured them was going to make it very difficult to get projects off the ground without the approval of union officials.

“We are glad the Government’s seen the sense of some of the things we’ve proposed.”

Mr Keenan’s comments signal that the Coalition is moving to a position where it can support the bill, pending movement on unfair dismissal laws. The Opposition is trying to put itself in the same political position as the crossbenchers, in an effort to lose the stigma of being the party of Work Choices.

The Greens have managed to secure another amendment to the IR legislation that eliminates a clause, also contained in Work Choices, allowing employers who are followers of the Brethren religious group to get a special certificate exempting them on the grounds of their faith from the right of entry regime.

Ms Gillard, the Workplace Relations Minister, urged senators to “get rid of Work Choices”.

“We are insisting on our election policy – that is what the Australian people voted for,” she told ABC’s Lateline program.

But Senator Xenophon told The Australian he would not be able to support the bill unless Ms Gillard compromised on unfair dismissal.

“It puts me in a very difficult position,” he said. “I can’t guarantee the success of the bill unless that issue is resolved.”

It comes after a business survey revealed nearly half of all employers feared the new industrial laws would lead to job losses and higher business costs. The Australian Chamber of Commerce and Industry’s chief executive, Peter Anderson, said negotiations in the Senate on changes to Labor’s Fair Work Bill were crucial to jobs.

Mr Anderson said the chamber’s survey of investor confidence found 47 per cent of small business owners believed the legislation would weaken their ability to maintain current employment levels. More than half – 54 per cent – believed removing the current exemption for small businesses employing fewer than 100 staff from unfair dismissal laws would dissuade them from employing more staff.

Ms Gillard was forced to concede yesterday the Government would need to intervene to ensure retail and restaurant businesses were not made to pay workers more, after her plan for revamping award minimum employment conditions was drawn up.

Proposed pay rises that could flow to many workers from a government-commissioned review by the industrial umpire – which have sparked warnings from employers of large-scale job losses – challenge Ms Gillard’s claim that Labor’s industrial regime would not cost jobs.

“I acknowledge that there is an issue here for restaurant owners that they are desperately concerned about,” she said.,25197,25208947-5013404,00.html

Michelle Grattan | March 17, 2009 – 10:35AM

The Senate is likely to widen the net for small businesses exempted from the unfair-dismissal requirements in the Government’s Fair Work Bill, as the Opposition sharpens its attack on the bill.

Workplace Relations Minister Julia Gillard met Family First senator Steve Fielding and independent Nick Xenophon yesterday, but sticking points remained with each.

Both favour exempting more small businesses from unfair-dismissal procedures. Senator Fielding wants to exclude those with the equivalent of fewer than 20 full-time workers; Senator Xenophon would accept a head count of fewer than 20. The Government is persisting with a head count of fewer than 15.

The Opposition wants fewer than 25 full-time equivalents, well below WorkChoices’ 100, but would support the cross-benchers’ position when its own amendment failed.

The Government signalled last night that it is willing to give ground on unions’ right of entry to workplaces but wouldn’t go as far as Senator Fielding’s demand to exempt all small firms.

With its final position on the bill still to be decided but apparently toughening, the shadow cabinet will put extra amendments, described as technical, to today’s Coalition parties meeting.

In Parliament, the Opposition lashed out at Labor’s “job-destroying industrial relations changes”, while the Government claimed the Coalition still backed WorkChoices.

Challenging the Opposition to state its current position on WorkChoices, Prime Minister Kevin Rudd said: “I thought their position was that WorkChoices was dead. It is part dead, is it?”

Mr Rudd pointed to the “very pathetic spectacle” of Malcolm Turnbull being reined in not only on industrial relations and climate change but “right across the board”. Coalition policy development was “paralysed by the opportunism which arises from its own internal leadership conflict”.