April
Employment reinstated due to unclear workplace policy
Employers should ensure their policies and other manuals are easily accessible, understandable, and reasonable or risk the Fair Work Commission deem them only making sense “to some copyright lawyers and some IT specialists, but probably no one else”.
In this case the employer, Western Sydney Migrant Resource Centre (WSMRC), dismissed a worker after she deleted data from her mobile phone.
In 2021, the employee had taken leave during the Christmas period and had deleted data from her on-call phone before leaving it with her colleague. Upon returning, WSMRC suspended her for deleting the data, issued her a show cause letter, and subsequently terminated her employment.
As a sub-contractor for Settlement Services International Ltd (SSI), WSMRC relied upon their contract with SSI which prohibits the destruction of client records and data removal without prior authorisation.
The employee argued that the on-call phone did not contain any client records as her clients called her on her other work mobile at various work and outside of work hours. The employee’s former supervisor provided evidence showing that it was common practice for workers who left WSMRC to restore their phones to factory settings.
Deputy President Michael Easton found that while the potential damage the conduct could cause was “reasonably obvious as the employer was deprived of the opportunity to inspect the device”, the employees’ explanation was “rational and plausible”. He further expressed serious reservations as to whether the employee would have understood the IT procedure given the vague wording and the fact that English was not her first language.
The Deputy President held that WSMRC failed conduct a proper investigation and “made a bad judgement call to dismiss her so swiftly”. Resulting, he reinstated the manager with continuity of employment and restored her pay with 25% reduction for her misconduct.
Dismissal upheld due to unreported cannabis charge
The Fair Work Commission has upheld an employer’s decision to dismiss a long time employee of 37 years for breaching its code of conduct in failing to disclose serious criminal charges, including the possession of more than two kilograms of cannabis.
The employer, Sydney Trains, was made aware of the worker’s thirteen charges for “supply of cannabis – indictable and commercial quantity”, firearms offences and a proceeds of crime offence via an anonymous tipoff. After further investigation, Sydney Trains found the NSW Police had laid charges 11 months prior and were amid an investigation, further, the employee had an additional unreported criminal conviction dating back to 2001.
Sydney Train’s code of conduct requires employees to immediately notify their manager if charged with a serious criminal offence and resultingly dismissed the worker for failing to notify them of these charges. The worker proceeded to file an unfair dismissal claim.
The worker, a station manager, argued he had held the cannabis for a friend and “fully intended” to report his charges to his employer, but had been advised by his lawyer against this until the police had finalised their charges in anticipation of at least one being dropped.
Commissioner Donna McKenna found that the station manager’s failure to report his charges constituted “a breach that went to the heart of the trust that [Sydney Trains] is entitled to have in its employment relationships” and that “the only appropriate course would have been for the applicant to adhere to his reporting obligation”. As such, the Commissioner found the dismissal proportionate, and not harsh, unjust, or unreasonable.
Reducing casual’s hours to zero constitutes a dismissal
The Fair Work Commission has ruled that casual employees cannot simply be ‘dispensed with’ by abruptly reducing their hours, without the employee having recourse to unfair dismissal or general protections provisions.
In this case, the employee was engaged on a casual basis by The Trustee for L & L Chua Family Trust No 17 (Brisbane Quarters) as a live-in caretaker. The employee submitted that he had been ‘forced’ to assume additional responsibilities as the Regional Manager was ‘constantly absent’ and that his complaints regarding his intense workload were ignored.
In consultation with the employee, Brisbane Quarters approved 2 weeks of personal leave after the employee had suffered a psychological injury due to the workload. However, on the first day of his approved personal leave, the employee received notice that Brisbane Quarters no longer had any hours available for him. Resulting, the employee lodged a general protections application, alleging he had been dismissed for exercising a workplace right (i.e., taking approved leave).
Brisbane Quarters disputed the allegations, arguing the employee had not been dismissed. Further, they asserted that the employee had placed ‘undue stress on himself’ by undertaking the additional responsibilities and was often ‘confused about what hours were working hours’ due to living on-site. In defending their decision to reduce the employees’ hours, Brisbane Quarters alleges the employee had been ‘plotting and rumor spreading’.
However, Commissioner Nick Wilson, dismissed Brisbane Quarter’s objection finding their argument that there had been no dismissal ‘plainly misconceived'’ and that the proposition casual employees may be ‘simply be dispensed with by reducing their hours to zero’, without consequence, was incorrect.
Earnings do not include overtime payments
The Fair Work Commission has dismissed an employer’s claim that it should reject a worker’s unfair dismissal claim on the basis that their earnings exceeded the high-income threshold.
The employer, I.P.C. Pty Ltd, argued that the worker, a mechanical superintendent, had income amounting to $201,000 which included his salary, company car use, company phone use, salary sacrifice, and overtime pay which put him well above the high-income threshold of $162,000.
The worker responded that his contract guaranteed “at least” 40 hours of work per week at $58/hour and $63/hour for overtime, amounting to salary of $120,000 and totalling $127,000 when accounting for car and phone use. He further explained that while the employer paid him a base rate of $80/hour base and $88 for overtime at times, this was not the norm. This rate was only paid when the employee worked on a shutdown which “was not guaranteed”.
Citing section 332(2)(a) of the Fair Work Act, Deputy President Abbey Beaumont found that the worker’s earnings fell below the high-income threshold when excluding his overtime payments as they “could not be determined in advance”.
Further, the Deputy President expressed that even if the cost of the workers vehicle and phone use amounted to $15,000 and salary sacrifice $5,200, his total income would amount to $141,000 which remained below the threshold. The case has been referred to a directions hearing.
HR manager fined $7k for egregious dismissal
The Federal Circuit Court has fined a HR manager $7,560 and an employer nearly $100,000 after he humiliated a worker by speaking only to her husband about her quitting and had seized on the first opportunity to dismiss her to avoid a bullying and harassment case.
The employee, a full-time production worker, had been steadily progressing for almost five years at pizza manufacturer Bervar's trading name, Della Rosa Fresh Foods (Bervar), before being called into a meeting for allegedly failing to perform part of her required tasks. The worker then left the workplace to go home two hours later without clocking off.
The HR manager rang the worker’s mobile number to conduct a “welfare check” and spoke to her husband who declared the worker would not be returning. The husband alleged that his wife had been bullied and harassed and that they would be “taking the matter to Fair Work”. The HR manager then took the husband’s word to mean the employee had resigned when in fact he had no such authority.
Judge Karl Blake found that the HR manager’s action of assuming the husband had spoken for the employee and that the employment relationship was at an end had been swift and that the employee was “never afforded any opportunity to speak directly” was “destructive of [the worker’s] sense of self-respect”.
Judge Blake accepted that the dismissal had distressed and humiliated the worker and fined Bervar $37,000 and further ordered them to pay compensation of $47,830 in damages for economic loss and $9,000 in general damages.
QIRC upholds rejection of police prosecutor's WFH request
The Queensland Industrial Relations Commission (QIRC) has upheld Queensland Police Service’s (QPS) decision to reject a police prosecutors’ request to work from home.
Last year, QPS rejected the prosecutor’s application for a flexible work arrangement that would allow him to work from home once a week, instead allowing him to trial it once per month. QPS maintained that with working from home, the service had no meaningful work available to the prosecutor that related directly to his duties and that his work in the arrest courts could not be done remotely.
The prosecutor argued that working from home improved his mental health and supplied medical material in which a doctor raised several concerns about conditions in the arrest court. He further contended that QPS had inadequately considered his medical condition.
A QPS Prosecutions Service inspector acknowledged that “at times the days can be long, breaks can be short or at times not provided, by the magistrate” but that on other days they could finish relatively early. Further, they expressed that during these long days, it was counterproductive to not have a prosecutor physically present to assist other prosecutors and provide them with relief. Regarding the prosecutor’s comments concerning his medical condition, QPS maintained that unless there was a specific diagnosed mental health condition, any considerations of mental wellbeing would not apply.
QIRC Industrial Commissioner Samantha Pidgeon held that QPS had taken a reasonable approach in finding the prosecutor’s request to work from home unsustainable and agreed that the other staff would be “absorbing [the prosecutor’s] absence” if he worked from home.
Instead, the Industrial Commissioner supported the QPS’s suggestion to implement a suitable duties plan. The prosecutor’s submission that the QPS decision “lack[ed] intelligent justification in all the relevant circumstances” was rejected.
Fair Work Commission criticises ‘tick and flick’ training
The Fair Work Commission has ordered reinstatement of a firefighter who shared an explicit image of naked women in a Facebook group but upheld the sacking of another who posted pornography during his shift.
In 2022, two firefighters were dismissed by Ventia Australia Pty Ltd (Ventia). The first created a Facebook group and posted several sexually explicit videos and photo collections, including one while at work whereas the second shared a video outside of working hours of a woman in a bikini top and a meme showing three naked women with their back to the camera.
A third colleague, who retained his job, also posted a video of a woman in her underwear, as well as a meme about body shaming.
Ventia deemed the conduct of the firefighters was in breach of their bullying and harassment policies, their social media standard, and their code of conduct in multiple parts. The firefighters were subsequently dismissed.
Commissioner Bernie Riordan upheld the dismissal of the first firefighter, stating that the distribution of pornography while on duty provided a valid reason for termination. However, for the second firefighter, Commissioner Riordan remarked that workers are entitled to a private life with respect to the pornography sent after work hours.
Commissioner Riordan considered the first firefighter's comments about ‘being the union’ and ‘having the regional manager do what he said’ as “nothing more than a 'tongue in cheek' joke" and called the language between male friends "commonplace and accepted".
Where the firefighters were dismissed for privately viewing pornography on their own electronic device while at work on a single occasion, the Commissioner held that would be a compelling argument that their dismissal was harsh.
Commissioner Riordan found that Ventia was entitled to expect a certain level of decency from their employees but had provided little or no training on the policies. He further criticised the "tick-and-flick" training the firefighters had received. "It is evident that the training program of [Ventia] is, at best, unnecessarily haphazard," he remarked, observing it is "evident that some employees don't understand the meaning of appropriate workplace behaviour" and it is "difficult to understand" why the slower rotating Saturday night shifts could not include a weekly training element.
This is a timely reminder for employers to ensure that employees receive regular and clear training, and that company expectations are clearly communicated and understood. If you require assistance regarding business policies or training, contact NRA Legal for a confidential discussion on 1800 572 679.
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