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2014

Fair Work Act 2009

- Unfair dismissal

- Adverse action/ General Protections claims

- Bullying claims

Equal Opportunity

WorkCover

Fair Work Ombudsman

General Protections claims- the current picture

- Claims are rising in number and are being made relative to unfair dismissal claims

- Claims are being made by unions, employees and past employees represented by their solicitors, self represented claimants. In 2011 to 2012 there were a total of 14,027 `general protection and unfair dismissal claims in FWA compared to 2,610 similar claims in HREOC

Attractions of the general protections jurisdiction

- Available to high income earners and without any qualifying period of service

- Non-dismissal related claims available

- Reverse onus of proof

- Weakness of federal discrimination laws

- Can bypass FWC (in cases other than dismissal)

- Applicant friendly rulings create employer uncertainty and a greater willingness to settle

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The claims can include :

- Adverse action taken due to union activities

- Adverse action taken due to making a complaint of bullying

- Adverse action taken due to refusing to undertake an unsafe task

- Adverse action taken due to pursuing a work cover claim

The decision maker (the employer’s ) must be able to testify that:

- The alleged proscribed reason for the action was not the real reason for adverse action

- The real reason was not associated with the alleged proscribed reason; and

- The adverse action would have been taken against the employee(s) in the same circumstances who had not engaged in the alleged activity or who did not have the

protected attribute.

Note: For the respondent to win, the decision maker’s evidence must be believed and corroborated by other evidence.

Fair Work Ombudsman

The functions of the Fair Work Ombudsman are Education and compliance.

In 2011-2012 there were 772,409 enquiries received through the Fair work infoline and 3.6 million visits to the website. There were 28,412 complaints finalised and 6,547 audits undertaken. More than $39 million was recovered for employees

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The FWO has two main types of investigations:

- Wages and conditions

- “complex” cases: sham contracting, adverse action , discrimination

- The FWO has the power to enter premises of a national system employer without force, without notice and within ordinary working hours

- Interview anyone (all interviews are voluntary)

- Inspect and make copies of records

- Compel production of documents.

The enforcement powers include:

- Penalty infringement notices

- Compliance notices

- Enforcement(litigation)

- the Fair Work Act provides for a 6 month minimum employment period

- unlawful termination is not covered by this period

- WorkCover is not covered by this period

- Equal opportunity claims are not covered by this period

So, what how does this translate into the work place.

- employees become aware of the fact they are not perhaps “working out”

- employees are likely to either claim an injury, that they are being bullied, that they have not be paid correctly or they are sick.

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- the employee then is able to make a claim of constructive dismissal based on adverse action and the onus will be on the employer to prove this is not the case

- Employees can also make claims to a number of authorities and tribunals based on almost no case.

An example involves a female who did not have any entitlement to unpaid maternity leave as she did not meet the requirement to have been employed for a period of twelve months

She started speaking to the manager of the facility in October 2012 regarding her pregnancy. She made an application for maternity leave later that month and when it was refused based on her not having been there for twelve months she then claimed annual leave. This was also refused.

She then made a claim via the FWO regarding not being granted her annual leave. The employer eventually agreed to allow her to take this leave. She then claimed stress from WorkCover due to being refused the maternity leave and subsequently claimed to have injured herself at work in an unwitnessed fall.

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Her husband was a member of the Victorian Police Force and he rang a resident who she claimed in the investigation saw the fall. The resident then made a statement to the investigator unbeknown to the employer. The insurer did not handle the claim properly and it was accepted.

The employee had lodged two WorkCover claims and then lodged an equal opportunity claim on the basis of not being granted the maternity leave. She also lodged 50 pages of transcript which she stated was of tape recorded conversations with her manager since October 2012 and which were obtained without the knowledge or permission of her manager.

Eventually she was declared fit to return to full duties so the employer advised she was suspended from duty on pay due to the breach of trust involved in tape recording the conversations. She was provided with 3 weeks notice of a meeting to discuss the allegations. The meeting was to be held on a Monday.

On the Friday before the meeting her lawyer provided a letter form her psychologist stating she was unable to meet either at the facility where she had worked or with the HR manager (due to her being a bully)and therefore would not be at the meeting. Her solicitor was notified that the meeting would be in my office with the general manger present.

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This advice was sent at 4.25 pm. The employee failed to attend the meeting and as she had been advised, this meant the employer assumed she accepted the allegations that had been made against her and her employment was therefore terminated in her absence.

She lodged an unfair dismissal

This case shows how far an employee can push an employer when the employer had acted within their rights and the rules.

Unlawful Termination

- the Fair work Act defines what can be deemed as unlawful termination

- includes dismissal based on race, religion, pregnancy, being a member of a union or not but the major issue has been the adverse action claims

Employees can claim they have been terminated for seeking their workplace rights, which includes asking for more money, claiming to be bullied, wanting a change of shift, being on sick leave, being pregnant and most other work related issues. Employees who are in the first 6 months of employment and are terminated can claim they were dismissed for seeking a work place right

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Therefore, despite the 6 month minimum employment period, an employee is able to access the unfair dismissal process which can make the 6 months useless. Additionally, if an unlawful dismissal is claimed, and it does not settle in conciliation, it is arbitrated in federal court. Very different to FWA

Where an employee makes a claim of any type, whether during their first 6 months or not, it is important that the matter is responded to if possible before taking any disciplinary action. For example, if a staff member is having work performance issues and nothing has been done about it and there is a claim of bullying by that person, it is best to try to deal with the bullying claim before moving to deal with the poor work performance.

Where this is not done, the employee is able to claim any disciplinary action has been taken due to the complaint of say bullying.

Employees are also able to claim discrimination for a range of reasons and make a claim in Fair Work Australia, to the Fair work Ombudsman and to the Human Rights and Equal Opportunity Commission. As of the 1st January the employee can also make a claim of bullying to the Fair Work Commission

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Employees now need to be more vigilant than any other time in my experience in relation to following policy and procedure. Employers have to show they have followed all due process in all interactions with their staff. In relation to disciplinary action this includes:

- the employee needs to know what the allegations are they that they are to answer to

- the employee needs to be advised of who has made the allegations (unless it is a resident abuse mandatory reporting matter)

- They need to be advised in writing to attend a meeting and what the outcome of the meeting may be

- they need to be advised to bring a representative

It is not enough for an employer to make allegations about an employee without all evidence being relied on provided to the employee

Employees are very rarely picked up on where they may have been less than perfect by a Fair work commissioner or conciliator, but employers always are.

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WorkCover is another area which if not managed correctly can also end up as a very costly outcome for employers.

If an employer believes a claim should not be accepted, it is true that it still often is. The decision to accept a claim does not lie with the employer it lies with the WorkCover Agent through the Victorian WorkCover Authority.

The Victorian WorkCover Authority monitors every claim and the WorkCover Agents are likely to have to explain any claim where they have said no but the conciliator says yes.

Where a claim is made and you wish to dispute it, your only real opportunity is to ensure a detailed report as to your reasoning is sent with the claim form to your WorkCover Agent.

Disciplinary Process

Remember, the stated purpose of a disciplinary process is to encourage staff to improve or to address the issue in question.

As the warnings have to be within a set time frame, it is important that the issue is tightly managed and not allowed to drag on

Again, some of the issues for which a warning can be given include:

- Poor time keeping

- Taking unscheduled breaks

- Not wearing an uniform

- Not ringing in in a timely manner if sick

- Not ringing in if absent

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- Taking excessive time off or taking unauthorised annual leave (can be serious misconduct)

- Taking the same day off or having a pattern of absence

- Agreeing to work an additional shift then not turning up or taking the day before off

- Failing to undertake work as expected

- Not completing work

- Not following simple policies such as taking the mobile phone onto the floor, using the mobile phone while working

- Not attending properly to resident so that the tasks required are completed in the manner required

etc

Serious Misconduct

Some issues which represent serious misconduct

- Hitting a resident

- Serious derogatory comments on Facebook and other electronic media

- Working elsewhere while claiming paid sick leave from your other employer

- Stealing

- Breaching confidentiality in some instances

- Fraud

- Fighting or making serious threats in the workplace

- Falsification of documents in some cases

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- Sleeping on the premises

- Leaving your place of work during working hours without the permission of your supervisor

- Leaving the residents or patients unattended

- Coming to work under the influence of alcohol and/or drugs

- Part taking of alcohol and/or drugs during working hours

- Deliberately bringing the employer into disrepute

- And other things you would not even think could happen.

These should be referred to in the contract of employment

I have some further examples of disciplinary letters:

“Dear Mary

I am writing regarding concerns that have been raised in relation to your consistently failing to ring in in a timely manner when unable to attend for your shifts. This is a particular problem on weekends.

I have attached a calendar of the occasions you have been absent and marked the times you have provided less than one hour’s notice.

Giving such little notice means that it is difficult if not impossible to find a replacement, meaning that the staff who are on duty have to work short staffed. This is then not a safe environment for either the staff or the residents.

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Accordingly, a meeting has been arranged for (date and time) to discuss this issue, and you are advised to bring a representative.

Under the principles of the Fair Work Commission, I am obliged to advise you that should we be unable to resolve this matter to my satisfaction at this meeting, disciplinary action will be taken, which may include a change of roster

Should you fail to attend this meeting, or to make suitable alternate arrangements, it will be presumed that you accept the allegations as valid, and a warning will be issued in your absence.

Yours faithfully”

The same principle applies in cases where serious misconduct is alleged.

However, in those instances, the employee must be suspended on pay prior to the meeting being held

In my view, employers should try to avoid advising that an investigation is to occur. This is because if this is stated, the investigation process often becomes the issue.

It is imperative that any evidence you have been provided to the employee alleged to have done the wrong thing. This includes statements from other staff, except in extreme situations

It is important that you have the clear evidence of what is alleged

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- It is important the you have explored all the circumstances and witnesses where appropriate

- Copies of relevant paperwork etc. that is to be relied on should be presented

- The matter needs to be dealt with in a timely manner

Any issue regarding unsatisfactory work performance or attitude should be dealt with as to ignore it not only encourages the employee involved but leads to disrespect from other staff who see what is occurring without challenge. Morale can be adversely affected

Complaints from other people (including staff members)

- Unless otherwise provided for, any complaint should be put in writing and provided to the employee alleged to have be doing the wrong thing

- It is not sufficient to have someone come to you and tell you verbally they have an issue

Why do we need it in writing

- We need to be able to rely on the fact that a complaint has been made and not have the complainant deny they said what they did at a later stage

- We need the complaint to be in the words of the complainant not the employer

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- The requirement to put complainants in writing will discourage vexatious complainants

- The fact you have the complaint in writing will give you a basis to rely on if the matter goes to FWC or other places

- If the person making the complaint leaves or otherwise is not available if the mater proceeds further, you have what was provided to you to rely on

Example of a claim under adverse action:

A new company buys a facility. The new company does not offer employment to a number of staff including a woman who is on unpaid sick leave. The woman in question was a registered nurse who when she was employed by the previous employer, they knew she would have to have a back operation which would leave her unable to work for some time. She had the operation and at the time of the transmission of the business

Was on unpaid sick leave as she had used all her annual and sick leave .

She was one of the staff the new employer chose not to offer employment to…..and who would?

She has made a general protections claim

Her claim is that she was not offered a position with the new employer as she had sought her workplace right to be on sick leave and that she was on the OH&S Committee. I am not clear of the relevance of the OH&S Committee at this stage.

Applicants for a position are able to take a claim against the prospective employer

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What does she want:

16 weeks “lost wages”

A fine against the employer of $5000.00 to go to her

Another 10 weeks pay for “pain and suffering”

The issue for the employer is that they are not able at this stage to provide any evidence as to poor work behaviour or any evidence as to why they did not offer her a job.

No doubt money will change hands.

Another example:

Female is in the first 6 months of employment. Upon employment she advised she would be available to work certain shifts. Gradually she becomes totally unreliable and then allegedly told her employer she was pregnant. She claims she told her employer that her doctor had verbally advised her she was unable to work certain shifts but there was no medical certificates provided.

The employer chose to write her a letter terminating her employment but stating she was a good nurse. They did say that her unavailability and mentioned a couple of other issue were problematic. She made a general protections claim on the basis she was terminated due to being pregnant. Money changed hands.

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Making a general protections claim appears to be the preferred action by many solicitors, but there are now claims being made by staff who are not represented. I believe they are advised to do so by the Fair Work Commission staff. You only have to go to the commission’s web site.

My experience over the last 30 years tells me these days are the hardest for employers due to the options staff have to take action against each other and the employer.

SO:

- When in any doubt get advice

- Gather the facts, whether the issue involves WorkCover, bullying or discipline

- Make sure any allegations include details, names, dates, times, witnesses, exactly what was said, exactly what happened

- Get written statements

- Beware of being too nice

- Do not treat staff differently

- Play by the rules and don’t let staff step over the line, it does not seems to ever pay

- Be sure any letters written are not going to cause more trouble for you as the employer

- Try not to “counsel” instead of formal action

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- Don’t hold meetings with employees if you are not sure of your rights and role

- Keep records

It is no longer a Fair go all round.Questions?