Fair Work Act Scenarios

Fair Work Act - Scenarios
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• 394 Application for unfair dismissal remedy
• The application must be made:
• (a) within 21 days after the dismissal; or
• (b) within such further period as FWC allows
under subsection (3).
• (3) FWC may allow a further period for the
application to be made if FWC is satisfied that
there are exceptional circumstances, taking
into account:
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• (a) the reason for the delay; and
• (b) whether the person first became aware of the
dismissal after it had taken effect; and
• (c) any action taken by the person to dispute the
dismissal; and
• (d) prejudice to the employer (including prejudice
caused by the delay); and
• (e) the merits of the application; and
• (f) fairness as between the person and other persons
in a similar position.
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• Section 382 defines when a person is protected from
unfair dismissal.
• As of 1 July 2018 the high income threshold is
$145,400
• 382 When a person is protected from unfair
dismissal
• A person is protected from unfair dismissal at a time
if, at that time:
• (a) the person is an employee who has completed at
least the minimum employment period; and,
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• (b) one or more of the following apply:
• (i) a modern award covers the person;
• (ii) an enterprise agreement applies to the
person in relation to the employment;
• (iii) the sum of the person’s annual rate of
earnings, and such other amounts (if any)
worked out in relation to the person in
accordance with the regulations, is less than
the high income threshold.
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• Section 332 of the Act defines what is included in the
calculation of a person's earnings,
• employee’s earnings include:
• the employee’s wages; and
• amounts applied or dealt with in any way on the
employee’s behalf or as the employee directs; and
• the agreed money value of non-monetary benefits;
and
• amounts or benefits prescribed by the regulations.
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• Section 332 of the Act defines what is not included in
the calculation of a person's earnings.
• (a) payments the amount of which cannot be
determined in advance (commissions, bonuses, over-
time, incentive-based payments
• (b) reimbursements;
• (c) Compulsory superannuation contributions made
by an employer as required by the Superannuation
Guarantee Charge Act 1992 are expressly excluded;
• (d) amounts prescribed by the regulations.
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• Jurisdiction - minimum employment period - when
employee is given notice of termination.
• 383 Meaning of minimum employment period
• The minimum employment period is:
• (a) if the employer is a large business employer - 6
months ending at the earlier of the following times:
• (i) the time when the person is given notice of the
dismissal;
• (ii) immediately before the dismissal; or
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• 384 Period of employment
• (1) An employee’s period of employment with an
employer at a particular time is the period of
continuous service the employee has completed with
the employer at that time as an employee.
• Casual work not counted unless regular and with an
expectation of the work continuing
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• An employee is protected from unfair dismissal if the
employee has completed a minimum employment
period with the employer;
• (b) The minimum employment period is assessed
either when the person is given notice of the
dismissal, or when the dismissal actually takes effect,
whichever happens first;
• An employee's period of employment is defined as
the period of ‘continuous service’ the employee has
completed with the employer.
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• It may be that, in some circumstances, a termination
is effective when its communication could ordinarily
be expected to have been received.
• Ms S was not an employee who had completed a
period of employment with her employer of at least
the minimum employment period.
• FWC has no jurisdiction to hear and determine Ms
S’s application for an unfair dismissal remedy
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• 385 What is an unfair dismissal
• A person has been unfairly dismissed if FWC is
satisfied that:
• (a) the person has been dismissed; and
• (b) the dismissal was harsh, unjust or unreasonable;
and
• (c) the dismissal was not consistent with the Small
Business Fair Dismissal Code; and
• (d) the dismissal was not a case of genuine
redundancy.
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• Section 388 of the Act covers the Small Business
Dismissal Code
• “Summary Dismissal
• It is fair for an employer to dismiss an employee
without notice or warning when the employer
believes on reasonable grounds that the employee’s
conduct is sufficiently serious to justify immediate
dismissal.
• includes theft, fraud, violence and serious breaches
of occupational health and safety procedures
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• Other Dismissal
• In other cases, the small business employer must
give the employee a reason why he or she is at risk of
being dismissed. The reason must be a valid reason
based on the employee’s conduct or capacity to do
the job
• The employee must be warned verbally or preferably
in writing, that he or she risks being dismissed if
there is no improvement.
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• Mr W was protected from Unfair Dismissal (length of
service & annual earnings less than High Income
Threshold)
• Employer is a Small Business (< 15 headcount).
• Summarily dismissed for alleged misconduct.
• Misconduct not proven - therefore there was no
valid reason for the termination of his employment
• Company did not follow the Code
• Termination of employment was not a case of
genuine redundancy
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• Was the dismissal harsh, unjust or unreasonable?
• 387 Criteria for considering harshness etc;
• (a) whether there was a valid reason for the dismissal
related to the person’s capacity or conduct (including
its effect on the safety and welfare of other
employees);
• (b) whether the person was notified of that reason;
• (c) whether the person was given an opportunity to
respond to any reason related to the capacity or
conduct of the person; and
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• (d) any unreasonable refusal by the employer to
allow the person to have a support person present to
assist at any discussions relating to dismissal; and
• (e) if the dismissal related to unsatisfactory
performance by the person—whether the person
had been warned about that unsatisfactory
performance before the dismissal; and
• (f) the degree to which the size of the employer’s
enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
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• (g) the degree to which the absence of dedicated
human resource management specialists or expertise
in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
• (h) any other matters that FWC considers relevant.”
• In Mr W’s case no valid reason exists for dismissal so
deemed Harsh, Unjust & Unreasonable
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• 390 When FWC may order remedy for unfair
dismissal
• (1) Subject to subsection (3), FWA may order a
person’s reinstatement, or the payment of
compensation to a person, if:
• (a) FWC is satisfied that the person was protected
from unfair dismissal at the time of dismissal; and
• (b) the person has been unfairly dismissed.
• (2) FWC may make the order only if the person has
made an application under section 394.
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• 390 When FWC may order remedy for unfair
dismissal
• (3) FWC must not order the payment of
compensation to the person unless:
• (a) FWC is satisfied that reinstatement of the person
is inappropriate; and
• (b) FWC considers an order for payment of
compensation is appropriate in all the circumstances
of the case.
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• Subsection 392(2) of the Act sets out the criteria for
deciding a suitable level of compensation
• “the effect of the order on the viability of the
employer’s enterprise; and
• the length of the person’s service with the employer;
and
• the remuneration that the person would have
received, or would have been likely to receive, if the
person had not been dismissed; and
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• the efforts of the person (if any) to mitigate the loss
suffered by the person because of the dismissal; and
• the amount of any remuneration earned by the
person from employment or other work during the
period between the dismissal and the making of the
order for compensation; and
• the amount of any income reasonably likely to be so
earned by the person during the period between the
making of the order for compensation and the actual
compensation; and
• (g) any other matter that FWC considers relevant.”
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• The termination of Mr W’s employment was
harsh and unjust and an order will be issued
that the employer pay him a total of $4,000
(less appropriate tax), equating to four weeks’
wages.
• Above to be paid in four installments of
$1,000 less tax (14, 28, 42 and 56) days after
judgement date.
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• The respondent Policy that drivers must pay for
damages caused to a vehicle due to drivers’
negligence is contained within the Employee
Handbook and also in the Vehicle Policy – updated in
March 2009].
• There is no mention of the Policy position concerning
damage to vehicles in the Certified Agreement
(2005). Clause 9.5 of the Enterprise Agreement,
under the heading Employee Issues states at sub-
clause (d):
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• “Incidents of serious misconduct such as fighting,
under the influence of alcohol, stealing, unsafe
practices, use of illegal drugs or drug abuse,
harassment, bullying, serious or potentially serious
vehicle accidents, equipment abuse, etc will result in
termination. Other unacceptable behaviour may
result in termination.”
• The Policy had existed since 2005, but had not been
enforced until February or March 2009. After that
period, four or five drivers had been dismissed for
failure to pay for damages incurred – one for the
non-payment of damages of $200.00
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• An employee may be required to meet part or all of
the cost of repairing any damage caused to a
Company vehicle, where the employee or a driver
authorised by the employee was negligent
• No employee of the respondent had any training in
terms of what constituted ‘negligence’
• There is no evidence before the Tribunal to show
that ‘procedural fairness’ was afforded to the
applicant by the respondent.
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• There has been no challenge to the applicant’s claim
that because he worked on the afternoon shift, he
was not present at Union meetings or when Mr G
held a toolbox meeting (in the morning) with drivers
to discuss the reinforcement of the Policy .
• the Vehicle Policy in toto is unfair and unreasonable
• the evidence shows that no-one in a senior position
understood what process had been undertaken by
the ultimate decision-maker (save for looking at the
front page of the Incident Report Form) to terminate
the applicant’s employment.
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• The respondent did not take into account the work
history of the applicant nor any mitigating
circumstances which applied
• The respondent states that the Tribunal, if it found in
favour of the applicant’s claim, should make a
nominal payment because of the applicant’s
“misconduct” in the performance of his duties.
• There is nothing in the evidence which shows or
suggests that the applicant’s behaviour could
constitute misconduct.
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• The applicant has mitigated the loss of employment
by undertaking casual employment and then by
gaining permanent employment.
• The applicant has earned the amount of $4,055.24
gross from one employer since the termination of his
employment. The applicant received a further
amount of $500.00 from another employer during
the months of January and February 2010.
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