Manager fired after losing driver’s licence: Is it unfair dismissal?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving an account manager who lost his driver’s licence and was subsequently terminated by his employer, a manufacturer and distributor of products. The worker had been employed as an account manager for Southern NSW by the employer since May 2023. His role involved managing the distribution and sales of the company’s products in the region, with responsibility for allocated client accounts.
In November 2023, the worker informed his manager and the National Sales Manager that he might lose his driver’s licence. The company initially responded positively, assuring him that appropriate arrangements would be made if needed. On 9 January 2024, the worker confirmed he would lose his licence for six months starting 7 February. Discussions ensued about alternative working arrangements, including phone and laptop-based work, with occasional face-to-face client visits facilitated by colleagues. By early February, the worker’s manager had confirmed these arrangements: The worker could work from home, he would maintain client contact via phone, and his colleagues would drive him to client visits every 4-6 weeks.
Importantly, the worker was not told these arrangements were on a trial basis. In mid-February, he completed a successful three-day client visit trip with his manager. At the end of this trip, the manager confirmed he had no issues with the arrangements. It’s worth noting that the manager typically held monthly one-on-one online meetings with the worker. During these meetings, the worker would inquire about his performance, and no issues were raised. The February meeting didn’t occur, and in March, the manager told the worker everything was going okay. The April meeting was cancelled by the manager.
Despite the initial arrangements, the company failed to schedule further client visits in March or April. On 7 May 2024, the worker was suddenly called to an online meeting where he was informed of performance concerns and the company’s intention to dismiss him. During this meeting, the manager stated that the current arrangements were not working due to dropped sales figures. The worker pointed out that he hadn’t received the agreed-upon support for client visits and that some clients had been taken from him, affecting his sales figures. The termination letter, dated 7 May 2024, cited the worker’s “inability to perform the inherent requirements of his role” due to the license loss. It claimed that sales performance had dropped in March and April, indicating face-to-face contact was an inherent job requirement.
The Commission found several issues with the dismissal process:
- The worker was not warned about performance concerns before dismissal.
- He was not given an opportunity to have a support person present at the termination meeting.
- The company failed to honour its agreed accommodation arrangements
The FWC also noted that the worker’s recent sales figures were not significantly different from previous months or other account managers’ performance. For instance, the worker’s March performance was 55% of target, compared to 46% in January, for which no complaint was raised. April’s performance of 64% was higher than January’s and close to figures from July and December of the previous year.
Additionally, the Commission found: “I also consider that it was unreasonable to dismiss [the worker] for being unable to perform the inherent requirement of his role. I accept that it was an inherent requirement of the role that he make sales. Clearly the loss of licence did not incapacitate him such that he could not perform his sales role.”
The FWC emphasised that the worker continued to make sales in March and April without face-to-face contact, and in February, when he received the agreed-upon support, he exceeded his sales targets. The Commission ultimately ruled that the dismissal was unfair. While reinstatement was not sought, the FWC ordered compensation of 12 weeks’ pay.
In its conclusion, the FWC emphasised: “Taking these matters into account and noting in particular that [the worker] would have continued to work for the company had he not been dismissed, he had worked for [the employer] for only 12 months before the dismissal, and he has attempted to find alternative work without success I consider that [the worker] should receive compensation of 12 weeks’ pay in lieu of reinstatement.”
Bullying and harassment claims against Rebel Sport owner to remain under wraps
Rebel Sport owner Super Retail Group has succeeded with its Federal Court application to suppress details of a legal claim by its former top lawyer alleging bullying, harassment and breaches of the Corporations Act. The matter was heard before Justice John Halley on Wednesday afternoon, with both sides agreeing to give undertakings to not release any details of the redacted statement of claim to any third parties. This is expected to be reviewed when the first case-management hearing has been held.
On Tuesday, Super Retail’s former chief legal officer and company secretary Rebecca Farrell commenced proceedings in the Federal Court against Super Retail, its chief executive, Anthony Heraghty, and chair Sally Pitkin following the termination of Farrell’s employment in May this year. Also on Tuesday, it was reported that the parties are in dispute over whether a settlement was reached over the termination of her employment in May.
Harmers Workplace Lawyers issued a public statement on Tuesday saying its client, Farrell, had reached a settlement with the company on May 6. “She is seeking to enforce that settlement agreement. If the court finds that there is not a settlement agreement, Rebecca will pursue the full extent of her claims,” it said. “This includes bullying and harassment and claims she was victimised and dismissed after raising serious corporate governance breaches, including a conflict of interest on the part of the CEO by his failure to disclose the nature of his relationship with the then chief human resources officer of the company.” The claim also says Super Retail breached the Corporations Act, including the whistleblower provisions. “Rebecca is a whistleblower who exposed serious corporate governance issues within the company. As a practising solicitor, Rebecca has a paramount duty to the administration of justice and, under solicitor practice rules, must avoid any compromise to her integrity and professional independence,” Harmers said.
If someone starts a new job while on leave, is it a repudiation of contract?
The FWC recently dealt with a case involving a worker who claimed she was unfairly dismissed after starting a new job while on extended leave from her original employer. This case highlights the complex interplay between employment contracts, workers’ compensation claims, and the definition of dismissal under the Fair Work Act. It raises important questions about when an employer’s actions constitute termination of employment, even if framed as accepting an employee’s repudiation of their contract.
The worker had been employed as a senior designer since March 2022. She went on extended leave in June 2023 due to a medical condition and filed a workers’ compensation claim. While still employed and on leave, she accepted a new position with another company in February 2024 without informing her original employer. The worker’s employment contract explicitly stated that she must not “without the prior consent of the Company, engage in any other business activity or employment.” However, she did not seek permission before accepting the new role.
In late March 2024, the worker requested annual leave from her original employer for early April. This prompted the employer to investigate her status, leading to the discovery of her new employment. When the original employer learned of this new job, they wrote to the worker on 4 April 2024 stating she had repudiated her employment contract by taking another job without permission. The employer claimed this meant her employment had terminated back in February when she started the new role.
The worker applied to the FWC alleging unfair dismissal. The employer objected, arguing there was no dismissal at their initiative as required under the Fair Work Act definition. The employer contended that by accepting other employment without permission, the worker had repudiated her contract. They argued their letter in April merely accepted this repudiation, rather than constituting a dismissal at their initiative. The worker’s representative argued that even if there was repudiatory conduct, the employer’s action in sending the termination letter still amounted to dismissal under the Fair Work Act. They emphasised that allowing employers to avoid unfair dismissal claims through contractual arguments would undermine the Act’s protections. Commission’s analysis of “dismissal”
The FWC analysed the definition of “dismissal” under section 386 of the Fair Work Act. They considered whether an employer accepting an employee’s alleged repudiation could result in termination not being at the employer’s initiative. The member examined various legal authorities on repudiation and dismissal, including High Court decisions and previous FWC rulings. They noted that repudiatory conduct by an employee typically gives an employer the right to summarily dismiss, rather than automatically ending employment. “I consider having to determine complicated contractual issues concerning repudiation and acceptance prior to considering the unfair dismissal and general protections provisions is contrary to a quick, informal and non-technical approach.” Ultimately, the member rejected the employer’s interpretation as inconsistent with the Fair Work Act’s intended operation.
They reasoned: “I consider it would be an extremely odd outcome if an employer who is alleging that an employee has committed a serious and repudiatory breach of their employment contract can select whether to summarily dismiss the employee at the employer’s initiative or alternatively accept repudiation and have the employment terminate at the employee’s initiative.”
The FWC found that even if the worker had repudiated her contract, the employer’s letter in April constituted dismissal at their initiative under the Act. The FWC ruled that the worker was dismissed within the meaning of the Fair Work Act when the employer sent the termination letter in April 2024. As the member explained: “I consider this was an action on the part of [the employer] which was the principal contributing factor which resulted in the termination of the employment. I consider [the employer] summarily dismissed [the worker] on 4 April 2024 purportedly because she had commenced alternative employment with [another company] without its permission in breach of her employment contract.”
This decision emphasises that employers cannot necessarily avoid unfair dismissal claims by framing termination as acceptance of an employee’s repudiation. The FWC member noted: “I do not accept that is the intended operation of the Fair Work Act.”
Consequently, the case has been directed to proceed to a conference to address the substantive unfair dismissal claim. This ruling highlights the importance of carefully managing terminations, even when an employee may have breached their contract.
Transport union suspends branch secretary over harassment allegations
Transport Workers’ Union Victorian state secretary Mem Suleyman is alleged to have harassed branch organisers at his union, leading the organisation to charge him with “gross misbehaviour”. A letter from TWU Victoria/Tasmania branch president John Rowe to Suleyman – says the union’s branch committee of management passed a resolution on Friday to charge him with “gross misbehaviour and/or gross neglect of duty”. On Friday, the TWU confirmed it would stand down Suleyman from his role, pending the investigation, but at the time did not reveal details of the allegations against him.
The union’s internal rules allow members to be “charged” with breaches that, if proven true, can lead to punishment including suspension or expulsion. Suleyman was told he was suspended from his position until the charge was determined by a special general meeting of branch members.
Suleyman’s suspension comes amid a tumultuous period in the state’s union movement. Powerful construction union boss John Setka resigned last month when faced with separate allegations about misconduct involving him and the CFMEU. The Health Services Union’s Victorian secretary, Diana Asmar, is facing calls to step aside while unrelated claims against her, are investigated. She strenuously denies the allegations. Suleyman is the brother of Allan government minister Natalie Suleyman and a significant figure in the TWU and the right-aligned Labor Unity faction. He was appointed assistant national secretary of the TWU’s Victoria/Tasmania branch in 2021 and took over as branch secretary this year.
Former Collingwood employee takes club to court over alleged racist bullying
Collingwood CEO Craig Kelly is at the centre of a racism storm engulfing Collingwood Football Club. The 1990 Magpies premiership defender turned player agent then club boss has been accused of causing an unsafe work environment through a pattern of behaviour.
It has been alleged Kelly suggested putting a live possum in a room with Indigenous players, called an Aboriginal Elder a “dumb old b****”, and a failed to fulfill obligations and financially compensate a First Nations organisation. These occurrences allegedly happened after former Collingwood president Eddie McGuire launched the ’Do Better’ report in 2021 and promised his club would make a clean break from its history of poor treatment of Indigenous players.
The allegations were made in court documents filed Monday with the Federal Circuit and Family Court of Australia by the club’s former head of First Nations strategy Mark Cleaver. The case is listed for a court hearing on August 27.
Senator Reynolds cross-examined in defamation case
Senator Linda Reynolds has begun her final day of evidence in her defamation case against Brittany Higgins. The senator is suing Ms Higgins and her husband David Sharaz over social media posts the couple shared in 2022 and 2023. The posts were critical of Senator Reynolds’ handling of Ms Higgins’ allegation she was raped in Parliament House in 2019 by her then-colleague Mr Lehrmann. He was charged with rape and faced trial in 2022, but the trial was aborted due to juror misconduct. The charge was dropped, and Mr Lehrmann continues to maintain his innocence.
In the Western Australian Supreme Court on Friday, Ms Higgins’ lawyer Rachel Young SC put to the senator that she had brought defamation proceeding against other parties following Ms Higgins’ rape allegations. Senator Reynolds confirmed to Ms Young that she took action against the ACT because she was concerned about comments made by the Director of Public Prosecutions Shane Drumgold. The senator settled with the ACT for $70,000 plus $20,000. The senator confirmed she published a Facebook post in March this year about her action against the ACT, detailing the apology and settlement she received. The post also said she had initiated further defamation action against other parties. Senator Reynolds confirmed she had also taken action against Harper Collins, author Aaron Patrick, The Spectator and The Independent, that had all been settled.
Senator Reynolds on Friday faced intense questioning about whether she knew her staffer had allegedly been sexually assaulted on the night of the security breach involving Mr Lehrmann and Ms Higgins accessing her office after hours. Ms Young put to the senator that her suspicions must have been raised because Ms Higgins was found undressed and she was intoxicated. The senator said she was not made aware of a rape allegation or that anything criminal had occurred. She told the court she had enough experience not to jump to conclusions about what may have happened on that night. The senator said there were many possibilities about what could have happened, and she was concerned Ms Higgins could not remember. But she said she was comforted that Ms Higgins was going to see her doctor. The senator denied she told Ms Higgins this was something women go through and if she was going to report the matter to police, to tell her first.
Disabled employees struggle to find workplace wellness
Australians with disabilities are facing workplace discrimination, with some choosing not to disclose their disability for fear of being overlooked. A Diversity Council Australia report has highlighted a lack of education and potential personal or systematic biases as contributing factors to discriminatory behaviour. This report found that a third of people with a disability believed there were times where they were left out of social gatherings by colleagues or were ignored at work and treated as if they didn’t exist.
Employers are being urged to foster an open and inclusive environment for employees. It was not the disability that created the barrier, the council’s chief executive Lisa Annese said, but rather the way organisations were designed. “Judgement, stereotypes, low expectations – all those biases human beings have also factor into (the problem),” she said.
One-in-two employees with disability working in inclusive organisations said they were very satisfied with their job, compared to only one-in-ten working in non-inclusive organisations. Close to a third chose not to share their disability status with their employer, citing fear of being overlooked, privacy concerns, and a general lack of trust.
The council stated that people with disabilities continued to be one of the most overlooked talent pools in the labour market, regardless of how common a disability was. “Fostering an open environment that allows employees to share their disability status is crucial to bridging the gaps” Ms Annese said. “Improving a person’s comfort and ease in the office could have a positive flow-on effect on mental health and access to services which increases work performance, contribution and innovation.”
Adjustments can be as simple as catering to specific working hours, providing accessible technology like a screen reader, or making sure internal communications are suitable for people using particular technical programs. Providing a low-sensory environment in the office is another method suggested for people who have sensory issues or autism. The report was created in collaboration with Australian Disability Network.
Three-quarters of discrimination complaints declined or discontinued
The Australian Human Rights Commission doesn’t have the power to decide whether unlawful discrimination has occurred. Instead, it aims to resolve claims through conciliation. Outcomes can range from an apology to reinstatement to a job, compensation for lost wages or policy changes.
If the complaint can’t be resolved through conciliation, complainants may then be able to take their case to court. 46% of complaints in 2022-23 were made under the Disability Discrimination Act, 22% under the Sex Discrimination Act, and 19% under the Racial Discrimination Act. The highest number of complaints came from NSW with 37%, followed by Victoria at 20%, and Queensland at 18%. Of those that went ahead in 2022-23, 55% were finalised within nine months, and 85% within a year, 15% taking longer than a year.
Anti-slavery provisions added to NSW suppliers code of conduct
NSW Anti-slavery Commissioner, James Cockayne said the updated code reflects how government can use its $40 billion procurement power to combat all forms of modern slavery including human trafficking and child labour.
Under the updated code suppliers will have to make reasonable efforts to ensure their supply chains are free from products made with modern slavery, such as electronics, garments and solar panels. This includes any product produced in whole or in part through modern slavery at any point in the supply chain. “Suppliers must take all reasonable steps to ensure that businesses within their supply chains are not supplying products of modern slavery,” the update says. “We expect our suppliers to provide a fair and ethical workplace free from workplace bullying, harassment, victimisation and abuse. We expect our suppliers to ensure that businesses within their supply chain are not engaged in, or complicit with other human rights abuses.”
This change initiated by the NSW Anti-slavery Commissioner, was implemented by the NSW Procurement Board this week. Government buyers can refer to the NSW Anti-slavery Commissioner’s Guidance on Reasonable Steps to help ensure the goods and services they procure are free from modern slavery. NSW was the first Australian jurisdiction to pass modern slavery legislation.
Globally, over 50 million people are trapped in modern slavery, with 28 million in forced labour, according to the International Labour Organization (ILO). The Global Slavery Index indicates that G20 countries import $468 billion worth of at-risk products annually.