Dismissal ruled unfair by FWC despite valid reasons from employer
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a casual forklift driver and a marble and ceramic company. The dispute was around the worker’s reliability, safety practices, and an eye injury he sustained on the job. In a decision that underscores the importance of procedural fairness in terminations, the Commission found the dismissal unfair despite acknowledging valid reasons for the employer’s concerns.
The company’s director stated that the worker had been warned both verbally and via text messages in July 2023 about the need to improve his communication and provide advance notice if unable to attend agreed shifts. On the other hand, the worker asserted he was unfairly dismissed after providing a medical certificate for his eye injury. He also claimed he was pressured to work despite being certified as unfit for duty. The worker’s wife provided a witness statement supporting his claim that he was pressured to come to work while booked off by the hospital.
The FWC found that there were valid reasons for the dismissal and noted: “[The employer]’s concerns are generally all matters that employers can legitimately consider when deciding whether to allocate or continue offering casual hours to casual employees. “The evidence presented by the employer, including text messages and witness statements, established that the worker was indeed unreliable and failed to follow safety procedures. The FWC accepted that the worker’s conduct over a lengthy period was unacceptable.
Despite the valid reasons, the FWC ultimately ruled the dismissal unfair due to a lack of procedural fairness. The employer failed to notify the worker of the reasons for his dismissal before deciding to terminate his employment. Additionally, they did not provide a proper opportunity to respond to the allegations against him. Therefore, the Commission noted that while the worker was told several times during his employment that his conduct was not satisfactory, he was not allowed to respond to these concerns or present a case as to why he should not be dismissed. It added that even when there are valid reasons for dismissal, employers must ensure they provide employees with an opportunity to respond to concerns before making a final decision.
Sacked after complaining about regulator’s own workplace culture
A former employee of the ACT’s workplace regulator has alleged he was sacked from the organisation after complaining about its own workplace culture. Leith Dawes has taken the office of the ACT’s Work Health and Safety commissioner to the Federal Circuit Court, alleging a breach of general workplace protections.
In documents lodged with the court, Mr Dawes claimed he was “subjected to direct and intentional workplace bullying and harassment by several employees” at WorkSafe ACT from the time he commenced employment as a regulatory inspector in late March 2023. He argued he was sacked “as a consequence of and directly after” complaining about the alleged instances of bullying and harassment, including in an email directly to Commissioner Jacqueline Agius.
After a probationary report recommended the termination of his employment, the documents revealed Mr Dawes experienced a “major psychological breakdown” for which he was hospitalised. Mr Dawes returned to work several weeks later in a revised role but was formally terminated in August 2023 on the grounds of “serious misconduct”.
Mr Dawes is seeking more than $400,000 in compensation for financial loss, as well as the “hurt, humiliation and distress” he said he had experienced. The case is set to go to mediation in mid-July.
Work related social media valid ground for dismissal
On March 10, 2024, the FWC handed down a decision in an unfair dismissal case involving negative comments about a management team that were circulated through a social media group chat.
The applicant, Breanna Roche, commenced with the Dolphin Hotel (the respondent) in April 2021, as a casual employee. In August 2023, the general manager and operations manager met with the applicant to discuss inappropriate behaviour and a decline in performance. Specific allegations were raised in the meeting, with managers noting instances where the applicant had gone on breaks during busy periods, instances of tardiness, and customer complaints made against the applicant.
In October 2023, the applicant attended a bar supervisor meeting focused on customer interactions and supporting decisions from the management team. After the meeting, several attendees revealed to the respondent that the applicant had criticised the management team in a Facebook group chat, which was meant to be used for employees to ask work-related questions and invite each other to work events. A manager spoke to the applicant about appropriate social media conduct, but she allegedly took no notice and continued to use the group chat to spread negative comments about management. In addition, the applicant also began unilaterally removing managerial employees from a different social media group chat. On November 10 the general manager spoke to the applicant about how it was inappropriate to exclude certain employees from social media group chats, as well as using the group chats to encourage other employees to think and speak negatively about management and removed employees.
The general manager also noted that the applicant’s behaviour and performance at work had not improved since their initial meeting a few months earlier, and that this was unacceptable. Later that day, the respondent dismissed the applicant, stating in the termination letter that their main concern was the employee’s conduct in the social media group chats, which created a negative and hostile divide between management and front-of-house employees.
The FWC found that both social media group chats were clearly related to work, and there was no justifiable basis for the applicant to describe the group chats as private social chats. It also highlighted the fact that the applicant was already informed of her conduct in the group chats in the bar supervisor meeting, meaning she was aware that her comments were unacceptable before continuing the behaviour and removing managerial employees.
The Commission found that the respondent did give the applicant opportunities to respond before it sent her the termination letter. The employee’s conduct was ruled to be a valid reason for dismissal, and her application was not successful.
Worker conducts personal transactions during business hours with employer’s clients
The FWC recently dealt with a case involving a small business employer and a worker’s claim of unfair dismissal. The dispute centred around the sale of a personal vehicle and its aftermath, which led to the termination of the worker’s employment. The Commission had to determine whether the employer had complied with the Small Business Fair Dismissal Code when dismissing the worker.
The decision hinged on whether the worker’s actions constituted serious misconduct, and if the employer had reasonable grounds for their belief. The case arose from an incident where a customer visited the employer’s car dealership and caused a disturbance, diverting other customers away and making threats against the dealership.
The police were called to remove the customer from the premises. It was discovered that the customer had purchased a car from the worker, which was owned by the worker’s mother. The vehicle was subject to an ‘encumbrance’, preventing the customer from claiming insurance on it. This led to the customer posting a negative review of the dealership online. The employer claimed they had previously instructed the worker not to sell personal vehicles during work hours and had warned them about “operating a conflicting business”.
After considering the evidence and arguments from both parties, the FWC upheld the employer’s jurisdictional objection and dismissed the worker’s application. It found that the worker had indeed sold her mother’s car to the customer, which led to the subsequent issues. The Commission acknowledged the potential damage to the employer’s reputation caused by the negative reviews and customer interactions resulting from this sale.
SA police inspector elected as new president of police union after allegations of misconduct
A police inspector has been elected as union president by a margin of less than 50 votes after allegations of misconduct were aired in South Australian parliament. The Australian Electoral Commission results showed Inspector Wade Burns received 787 of the total 1,936 votes cast on Thursday. Inspector Burns will replace Mark Carroll, who has been in the role for 17 years, as the new president of the Police Association of South Australia (PASA).
Last month, independent MLC Frank Pangallo raised concerns under parliamentary privilege against Inspector Burns about alleged predatory behaviour and alleged sexual assault of a female police employee during a social function. He told parliament multiple complaints were lodged about Inspector Burns’ “egregious behaviour” during that function and Inspector Burns was demoted from chief inspector to senior sergeant in 2017.
Inquiries into handling of alleged rape of Australian defence force trainee
In August 2023, Jane complained to the Directorate of Military Redress and Review, which allows Defence members to complain about an act relating to their service in the Australian Defence Force (ADF). The complaint concerned the lack of action from her chain of command, and a failure to protect her physical and emotional wellbeing after she complained she was raped by another member of the ADF. “They just saw me as a problem child and wanted to get rid of me,” she said.
In February 2024, Jane’s complaint to the Directorate of Military Redress and Review was referred to the Directorate of Inquiries and Investigations for assessment. This Directorate assists the Office of the Inspector-General of the Australian Defence Force (IGADF) in undertaking inquiries and investigations into alleged failures of military justice in the ADF. The complaint is now the subject of a full inquiry by the IGADF.
Correspondence seen by the ABC shows requests from the alleged victim to stand down the accused while the police investigation is underway. In a statement, a Defence spokesperson said they could not elaborate further. “There is an ongoing inquiry and Defence cannot provide further information at this time,” it said.
The culture of the ADF has been under the spotlight for years. Military data published this month showed more than a third of female recruits reported sexual misconduct while attending the ADF Academy in Canberra. The research, first tabled in the Royal Commission into Defence and Veteran Suicide, showed almost 30% of recruits who experienced unacceptable behaviour took no action, with many reporting it was “accepted around here”. During a Senate Estimates hearing earlier this month, Defence Chief General Angus Campbell conceded women could be deterred from joining the military due to workplace culture.
Head coach of Boxing Australia admits sexual misconduct
Jamie Pittman, Boxing Australia’s head coach has admitted to “disgusting” sexual misconduct involving female fighters and has withdrawn from the Paris Olympics. He apologised at the National Sports Tribunal, which delivered damning findings about his behaviour and recommended a six-month suspension.
The tribunal found Pittman’s conduct was “variously described as ‘disgusting’, ‘shocking’, ‘inappropriate’, ‘gross’ and ‘offensive’.” “(It) made those who witnessed it feel embarrassed and uncomfortable around Mr Pittman,” the tribunal said. “Common to nine of the 11 instances of prohibited conduct are inappropriate comments or conduct involving the sexual objectification of women that is puerile, infantile and lacking in sensitivity or awareness. “Especially by someone of Mr Pittman’s seniority and standing in the boxing community who should be leading by example. “There is no place in modern society for such conduct, which also falls well short of the standards of behaviour expected of those involved with CombatAus.” Pittman has also stood himself down from the Australian Olympic Committee’s Indigenous Advisory Committee “for the immediate future”.
The tribunal recommended a six-month ban backdated to November last year and written apologies to a team physiotherapist and at least two athletes. Pittman must also complete a training course on anti-discrimination, anti-harassment, anti-bullying and anti-sexual misconduct within 60 days.