What Every Business Manager Needs To Know About Unfair Dismissal

 

UNFAIR DISMISSAL? A term slung around very often.

But what do employers need to know, and probably don’t?

A useful statement from a senior Judge of the employment court in a mediation conference was where he told both lawyers that “it is all about conducting a proper assessment of the risks and making sure your clients understand them”. When considering dismissing an employee, it is probably timely to ask yourself the question – As an employer have you considered any and all risks that termination of an employee may bring upon you?

As an employer why should you avoid unfair dismissal claims and how?

An unlawful dismissal can cost an employer in terms of time, money, and reputation.  Claims can be multiple so are the remedy(s). To properly dismiss and to minimize your penalty risks, simply ask these questions from yourself, although the list is not exhaustive:

• Is termination the only way to address the employee’s conduct?
• Is this in accordance with the termination clause in the employee’s agreement?
• As a decision-maker, have you directed your mind correctly to the reason for termination and the consequences of your decision; and
• As a reasonable person in the employee’s shoes, do you consider the dismissal fair and reasonable?

What if the termination is the right call?

Whether it is a simple termination or summary dismissal, always double-check your facts, notes, and the history that led the situation to become what it is before you. At best, if the termination call is the right one, and unless the situation is not serious to warrant summary unfair dismissal, make sure that:

• You are not overreacting to a matter that may deserve a lesser action than termination;
• You have proper procedures in place to investigate the issue that gave rise to the termination and before terminating anyone;
• You give the employee a chance to narrate their side of the story within a reasonable time and accord them with the right to have support persons with them throughout the process and when you are investigating the matter before you;
• To allow a fair investigation, you provide the employee with paid leave (This may sound costly, but the result will generally be to your benefit in the long run); and
• You only terminate if the agreement allows you to do so, and ensure that you are correctly interpreting your termination clause.

What if you are unsure that termination is the right call or not?

The employer’s quagmire would be when the employer is unsure of dismissing an employee or not.  Obviously, it is a natural expectation that as an employer you wish to save face with other employees, and accordingly do not want to take the wrong step. It is, therefore, always better to seek qualified employment law advice if you are unsure whether to fire or keep an employee.

Can you fire your employee when the relationship of trust and confidence is broken?

The answer may be drawn from a law maxim; “lex neminem cogit ad vana seu inutilia peragenda” which means; the law does not compel one to do useless things.

That is, if you and the employee cannot work side-by-side and you have valid reasons, providing such a term is stipulated in the employment agreement, you may terminate the employee. To do so, however, you need to ensure you have valid supporting documents as proof that the relationship of trust and confidence between you the employee, was broken such that the relationship was unsustainable. You also need to ensure that in a valid termination, all accrued entitlements are paid to the employee without delay or hindrance and that you document everything you do.

If you face the difficult task of firing your staff, for whatever reason, then speak to an experienced employment lawyer on 1800 217 217 today.

Article Source: Unfair Dismissal Lawyers Brisbane

 

Property Contract Termination

A case before QCAT has recently confirmed that the fee for terminating a property purchase contract during the cooling off period (which is 0.25% of the total contract price) is payable by the proposed Purchaser to the Seller if the seller requires payment even if the proposed purchaser has not paid a deposit.

 

The proposed Purchaser had signed an REIQ Contract of Sale for a property on the Gold Coast. They paid the deposit by way of personal cheque which the proposed purchaser cancelled before it had been cashed by the selling agent. The proposed purchaser attempted to argue before QCAT that because no deposit had actually been received by the seller or their agent that the buyer was not required to pay the termination fee. QCAT rejected that argument and the decision from QCAT was that the buyers were required to pay the 0.25% termination fee. If you are considering purchasing a property, we can advise you regarding the insertion of additional special conditions into contracts, for instance providing for a Due Diligence period which enhances the proposed purchasers rights to terminate the contract without penalty.

Work Place Sexual Harrassment

In the decision in a case known as Ewin v Vergara (No. 3) (2013) the Federal Court has clarified the position under the Sex Discrimination Act 1984 as to what is a workplace for the purposes of unlawful sexual harassment. In this case the Respondent attempted to argue that common areas of the office, such as corridors or lavatories or kitchens were not the workplace for the purpose of this Act.

 

The Court rejected this argument and confirmed that what is important is the people and the relationships between them and the fact that they are connected by their common workplace/employer and that relationship rather than the precise physical environment. This was also a case in which the Court confirmed that the fact the Respondent was a Contractor rather than a direct employee was no bar to the application of the Sex Discrimination Act 1984.

To Ask or Not to Ask, That is the Question

Prospective Employers in Queensland can now ask Job Applicants to disclose pre-existing injuries or Medical Conditions. If a prospective employer wishes to do this the request to the job applicant must be in writing, must describe accurately the duties of the job and must notify the job applicant that if they knowingly give a false or misleading reply to the questions then they will not be able to claim compensation or damages if something occurs at work that aggravates the pre-existing injury or medical condition. It seems likely that the question of what is pre-existing, and what is knowingly, as well as whether the job duties were accurately described could all be fertile grounds for dispute.

Just because a prospective employer can ask these questions is it wise to do so? If an employer knows that an employee has a pre-existing injury or medical condition that employer is likely to have a higher duty of care towards that employee. Prospective Employers are also still required to ensure that during their recruitment process they do not make decisions about hiring staff which breach the various provisions of the Fair Work Act (Cth), the Disability Discrimination Act (Cth) and the Anti Discrimination Act (Qld). The process of recruiting staff remains one that employers should undertake with great care.

Tweeting about Employment Law

Social media and employment law have again been the focus of litigation in Australia. Michaela Banerji was a public servant in the Immigration Department. Ms. Banerji also operated a Twitter account, anonymously, upon which she posted comments, many of which were critical of Government Policy as well as individual Politicians. In proceedings before the Federal Circuit Court of Australia, Ms. Banerji, who was subject to disciplinary proceedings by her employer, argued that her comments on Twitter were protected by an implied right of freedom of political expression. His Honour Judge Neville rejected that argument and in finding that there is no unfettered right to freedom of political expression Judge Neville also commented that even if Ms. Banjeri was correct and such a right does exist that it does not provide a licence to breach an employment contract. The terms and conditions of Ms. Banerji’s contract of employment did expressly prohibit the sort of comments on Twitter that she had been posting.

Amongst other things this case very neatly illustrates the importance of employers maintaining an up to date policy in relation to the use of social media by their employees and for employees being aware of and conscious of the terms of such policies with regards to any posting they might make on the various social media platforms.

Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?

In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

·The origin of the electronic communications;

·The destination of the electronic communication;

·When the electronic communication was sent;

·When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

·The time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or

·The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

oThe electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.

Unfair Dismissal

A recent decision of the Fair Work Commission in a case involving Australia Post, has thrown up a decision which at first glance is something of a surprise. Three employees of Australia Post were dismissed from their employment for using the Australia Post email system to send and receive mails which included material considered to be pornographic. None of the three employees denied that this is what they had done. Australia Post dismissed the three employees who then brought the case to the Fair Work Commission. The Fair Work Commission decided that dismissal of the three employees was harsh and that the circumstances did not justify dismissal.

The main problem for Australia Post was that whilst they had a policy against the use of their computer systems to send and receive pornographic images the Fair Work Commission adopted the view that over a number of years that policy had not been monitored and enforced. The Fair Work Commission accepted that there was a culture of acceptance of this behaviour amongst Australia Post Managerial Staff, and that the employees had not been given sufficient prior warning that the consequence of breaching the Australia Post Policy could be dismissal from employment.

The Fair Work Commission stressed that their decision should not be taken as authorising employees to use the email systems of their employers to transmit pornography or other unacceptable material. This decision from the Fair Work Commission highlights and reinforces the absolute importance of  employers following proper procedures before they make a decision to terminate the employment of their employees, even in circumstances where the behaviours of the employees, on the face of it, seems to justify that dismissal.