Our Employment, Industrial Relations and Safety expert Murray Procter presented the second #CKBusinessBites seminar for 2018 on Preventing Employment Claims

1. Dealing with the Three Amigos: Unfair
Dismissal, Adverse Action and Bullying
Preventing Employment Claims

2. Introduction

4. UNFAIR DISMISSAL
Unfair dismissal

5. Unfair dismissal
• A person is protected from unfair dismissal if:
• Completed the minimum employment period; and
Either
• Annual earnings do not exceed the high income threshold
(currently $142,000)
• Covered by an Award or an Enterprise Agreement
• Was the dismissal harsh, unjust or unreasonable
• Compensation cap  6 months salary
• Not a case of “genuine redundancy”

6. Unfair dismissal
Trends in 2017
• Dismissals regarding breach of policy
• The investigation

7. Procedural fairness
Crawford v BHP Coal Pty Ltd
•Employee dismissed for allegedly breaching BHP’s safety policies while conducting
maintenance on machine
•Second incident where fitter alleged to have breached safety procedures in less
than four months. In December 2015, given final warning for throwing rattle gun
•FWC accepted employee should have known his actions were in breach of BHP’s
safety procedures

8. Procedural fairness
• FWC critical of investigation, including:
– Show cause letter
– Fitter not entitled to participate in investigation of the incident – BHP
“rushed” to suspend him without his involvement
• Dismissal was “unreasonable” due to lack of procedural fairness, and “unjust”
because decision to terminate affected by allegations he was rude and dismissive
(which weren't put to the employee)
• Awarded $25,448 in compensation

9. Social media
Clint Remmert v Broken Hill Operations
•Diesel fitter on final warning for previous instance of bullying
•Commented on a post made by another employee “I’ve seen bigger f**kwits
with peaks on their hat”
•12 employees participated, 4 stood down

10. The investigation and decision

11. Lessons - Unfair dismissal
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12. Genuine redundancy exemption

13. Lessons from recent cases
Operational requirements
•Whether a redundancy is genuine is to be assessed at the time of dismissal
•Adding qualifications and duties to a role can create a ‘genuine redundancy’
•Operational requirements do not need to be sole reason for dismissal
Obligation to consult
•Must provide employees with an opportunity to respond/provide input where there is a
proposed dismissal

14. GENERAL PROTECTIONS AND ADVERSE ACTION
General Protections and Adverse Action

15. General protections and adverse action
Workplace rights
•Workplace right to make a complaint or enquiry
•Workplace right to minimum entitlements
•Workplace role or responsibility
•Workplace right to engage in a process or proceeding
•Adverse action in connection with unlawful discrimination eg race, gender
•Freedom of association

16. General protections and adverse action

17. General protections and adverse action
• Examples of adverse action
• Transferring an employee to another position
• Starting an investigation process
• Issuing a warning letter
• Altering a roster
• Suspension
• Treating an employee less favorably than another employee

18. General protections and adverse action
Because of:
 Requires a determination of fact as to the reasons which motivated the
person who took the adverse action
 Even if one of the reasons for termination is a prohibited reason – will be a
breach:
 Managers required to provide evidence of the reasons they took the action
 Beware: decision makers as accessories
! Important consideration – the reverse onus of proof

19. General protections and adverse action
• Trends 2017
• High payouts
• Has the decision maker made out their case?

20. General protections and adverse action
CFMEU v Hail Creek Coal Pty Ltd
•One of the largest payouts for an adverse action claim
- $1.3 million
•Employee sustained back injury – received $637,000 in compensation
•Stood down by employer for safety reasons. Subsequently terminated because couldn’t
perform role
•Employer said “primary and only reason” was safety
•Employer didn’t prove that compensation claim was excluded from the reasons for
dismissing the employee

21. General protections and adverse action - Lessons
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22. BULLYING
Bullying

23. Anti-bullying – Fair Work Commission
A worker who reasonably believes they have been bullied at work
may apply to the FWC for an order to prevent the bullying

24. Anti-bullying
• FWC can make “stop bullying” orders:
• Stop conduct; monitor conduct, development of policies/procedures, require
compliance with policy, employer to provide information/extra support/training to
workers, mediation, counselling, transfer of bullier, written warnings, apology
• Worker may seek a penalty if there is a contravention of a stop bullying order
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25. Anti-bullying
A worker is NOT bullied:
•Single incident
•“Reasonable management action”
• proper performance management
• reasonable supervisory practices
• allocation of work according to
employment practices
• operational reasons (changes or restructuring)
•Reasonableness of action taken by employer established objectively (actual reasons of
decision-maker are not relevant)
The test for
“unreasonableness”:
•The particular
circumstances
•Policies or
procedures followed
•Investigations in a
timely manner

26. Conclusion

27. Take home messages
• Valid reason and procedural fairness when dismissing
employees
• Always take contemporaneous notes of important
meetings, incidents and decisions
• Maintain a respectful working relationship with
colleagues at all times and remember reasonable
management action taken in a reasonable way is the
best way to remain protected

28. Questions

29. CONTACT US