Category: Dismissal

The Fair Work Commission, in finding that an employer constructively dismissed a female employee when it unreasonably refused her request to work part-time after the birth of her second child, has emphasised that women have the right to “give birth to children without foreclosing their employment.” Hanina Rind –v- Australian Institute of Superannuation Trustees [2013] FWC 3144 (31 May 2013)

Commissioner Lewin said that while “rights to parental leave may be of recent origin in the long history of employment in Australia the right in this case is no small thing.”

The Commissioner found that the “practical necessity” of the former database/IT systems administrator not having her request to work part time unreasonably refused was “essential for her continued employment to be viable“.   he said, “Indeed, the importance of parental leave and in particular leave in relation to maternity has become a matter of vital public interest in various ways reflected in the Act and in the Award system.”

He said the seriousness of the employer’s conduct in refusing the employee’s request “should be viewed from the contemporary vantage point, which affords considerable importance to the ability of women to give birth to children without foreclosing their employment due to the consequences of family formation“.

The employee began work with the Australian Institute of Superannuation Trustees in August 2009, initially full-time.  In February 2010, to accommodate her family responsibilities after the birth of her first child, she and the Institute agreed that she could work from home one (1) day a week.  In late 2012, the employee contacted the Institute to discuss her return from six (6) weeks paid parental leave and a period of unpaid parental leave after the birth of her second child.

The Australian Institute of Superannuation Trustees Certified Agreement 2009, which covered the employee’s terms and conditions of employment, provided a right to request to work part-time until a child reached school age, with any refusal of such a request to be made on objective business grounds.

After receiving a letter in early October 2012 requesting that she return to full-time work from 21 January 2013, the employee requested that she be able to work three (3) days per week, because of her parental responsibilities.  The Institute rejected the request, saying that the role required a “dedicated full time on site resource“, with a part-time off-site arrangement trialled in her absence leading to “frustrations“.

Commissioner Lewin said the Institute made several attempts to convince the employee to return to work, but proposals offered were either “equalling attendance of five days of the week or otherwise conditional in nature“.  “In my view, the conditional nature of this agreement in the factual circumstances of the case can be considered as a refusal” of her proposed request to work part time,” he said.

In terms of the legal principles relating to a constructive dismissal, the Commissioner said that an employee is “entitled to leave their employment in circumstances where conduct of their employer is sufficiently inimical to the continuation of the contract of employment and the employment relationship“.

Commissioner Lewin said “inimical conduct” included behaviour “which is adverse, unfriendly or hostile to the contract of employment and the employment relationship“.  He said the Institute’s argument that it had not constructively dismissed the employee had further been undermined by the fact that it had made no attempt since January 2013 to employ another full-time administrator, continuing instead with the part-time off-site provider used during the former employee’s parental leave.

Manager fails in arguing his managerial duties were simply an ‘add-on’ to his technical responsibilities, before FWA.

A consultant, who became a manager, for a consulting firm, Thomas Duryea Consulting Pty Ltd, has failed to successfully appeal against a FWA decision of Senior Deputy President Drake, that his managerial duties excluded him from the unfair dismissal jurisdiction.

The full bench, made up of Senior Deputy President Richards, Deputy President Harrison and Commissioner Cambridge, rejected the former manager’s argument that Senior Deputy President Drake was wrong in ruling that his managerial duties were not just an ‘add-on’ to technical responsibilities which thereby kept him under the coverage of the Professional Employees Award 2010. 

The full bench found that Senior Deputy President Drake had correctly taken into account:

–         the evidence of the Company’s Chief Executive;

–         the former employee’s position description which outlined a range of managerial duties;

–         the key performance indicators (KPIs) based on management of employees and finances and

–         a remuneration framework “…of some $200,000 (exclusive of 9% superannuation) plus access to a $100,200 bonus upon achievement of a suite of management-related KPI’s”.

The full bench said that Senior Deputy President Drake had correctly applied Australian Industrial Relations Commission decisions relating to assessing the “principal purpose” of a person’s employment.  The bench said that Carpenter v Corona Manufacturing Pty Ltd [2002] PR925731 established that an employee’s estimation of the quantification of their workload was not sufficient to determine a relevant award classification, “One reason for this (and there will be more) is that an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform…This is why the Full Bench articulated the task of ascertaining the principal purpose of the employment as requiring ‘an examination of the nature of the work […] the employee is employed to do’”.

Mr Nicholas Menemy v Thomas Duryea Consulting Pty Ltd [2012] FWAFB 7184 (28 August 2012)

A child care worker summarily dismissed after attending work smelling of alcohol may have successfully challenged her dismissal if not for the previous warning she had received and the fact that she worked with young children.

FWA Senior Deputy President Richards said the failure of the child care centre to stand the worker down and require her to attend to a doctor for a blood alcohol test before she could return to her duties might have otherwise led him to determine there had not been a valid reason for her summary dismissal.

He said that employers cannot “rely solely on an apparent breach” of drug and alcohol policy or guidelines to provide a valid reason for dismissing an employee.

“In other circumstances an employer might stand down an employee on an indefinite basis and not allow a resumption of work until a medical certificate indicating the employee was fit in all respects to resume the ordinary duties was provided. This approach has much to commend in the ordinary case.”

However, it was determined that this was not an ordinary case, as the worker had been warned two months earlier after attending to work in a similar state that her employment may be jeopardised by a further occurrence.  Further, she was required to look after young children.  These particular circumstances, he said, meant that the employer had a valid reason for the dismissal.

FWA determined that worker had “breached the employer’s confidence by her own admission, she had done so on the basis of full knowledge of the implications, and she had presented to her employer a risk that it could not reasonably manage” without removing her from the child care environment.

Ms Kerry Nebauer v Jenni Daley T/A Johnny Crows Garden Childcare Centre [2012] FWA 6946 (17 August 2012)

The risks for employers in stringing out dismissal processes involving matters of serious misconduct have been demonstrated in Jones v Commissioner for Public Employment [2012] FWA 7069 (17 August 2012) where a Northern Territory Parole Officer failed to disclose during her recruitment that her husband was a parolee.

Commissioner Steel said there was a ‘valid reason’ for her termination, but found the Officer was unfairly dismissed after not being afforded the necessary procedural fairness.

The former Probation and Parole Officer was employed by Northern Territory Correctional Services on a 12 month contract from June 14, 2011.  It was anticipated that her employment would continue subject to completing a training course and satisfactory work performance.  However, several months later the Department became aware of her husband’s criminal record and parole status and began an exchange of letters which culminated in her termination in January this year.

Fair Work Australia Commissioner David Steel found the Officer was ‘unfairly’ dismissed because her employer did not carry out a proper investigation into the matter and required her to maintain her duties while the issue was resolved.

Background

In the initial letter of 19 October 2011, the Officer was told her failure to disclose her husband’s criminal history raised concerns about trust and confidence, and that her employment may be terminated. In her response, the Officer maintained the paperwork had contained questions relating to her own circumstances, but not her spouse or family members. The paperwork included a document titled “Criminal History and Integrity Screening” which asked whether she had associated with persons that she knew “had criminal convictions other than in the course of carrying out professional duties?”

The Officer said she had taken advice on the meaning of “associates” in relation to the question, but was “encouraged by others assisting her to gain employment” that she should interpret the term as normally applying in a business relationship context.

She said she had been “open and transparent” in the interview process and had provided referees with knowledge of her husband’s status.

In a second letter, dated 2 November 2011, the Department advised the Officer that it was not satisfied that she had been “open and transparent” and that she had avoided disclosure in completing the form.

In the written communications, the Officer notified the Department of the increasing toll the accusations were taking on her health and wellbeing and that her confidentiality had been breached by the information about her husband becoming known among her colleagues.

She received a fourth letter dated, 13 January 2011, saying that her employment was terminated with one (1) weeks’ pay in lieu of notice because of her failure to disclose the information about her husband and her failure to have responded openly and transparently in the subsequent communications.

Commissioner Steel said there was a ‘valid reason’ for her termination, but found she was unfairly dismissed after not being afforded the necessary procedural fairness.  He said the Department had not carried out an investigation, met with the Officer or held any hearings or discussions with her.  This had meant there was also no opportunity for “representation or support persons that may have assisted the parties”.

He described the conduct as “disciplinary process by correspondence“.  The Commissioner also took into account that the Officer had not been suspended during this period, rather had been required to continue to fulfil her role “in face of information from the applicant that her work situation was deteriorating and she considered the respondent was not meeting amongst other matters, their duty of care towards her“.

The Commissioner ruled out reinstatement and awarded her 12 weeks pay.

A recent decision chal­lenging the commonly held view that adverse action claims are effectively ‘no costs’ matters under the Fair Work Act 2009 may have significant effect on future claims.

In Cugura v Frankston City Council (No.2) FMCA 530, Federal Magis­trate O’Sullivan awarded costs to an employer (the Frankston City Council) from an employee who unsuccessfully pursued an adverse action claim.  This costs ruling signifies a departure from the general judicial reluctance to award costs in such matters.

Performance Management and Dismissal

Fair Work Australia has found it was unfair for HJ Heinz Company Australia to dismiss a Sales Manager who refused to be performance managed because he feared it was designed to trigger his dismissal by the Company.

In ordering the reinstatement of the former WA Sales Manager, employed by Heinz from 1983 until his dismissal in August 2011, FWA Deputy President McCarthy said the performance grounds relied on by management had been “imperfectly, if not carelessly, formed for an employer of Heinz’s size“.

One of the reasons Heinz management gave the Tribunal for insisting on an individual performance management plan for the Manager was a low score in his annual review.  However, this score was not an individual performance rating, but a Company-wide rating that gave all employees the same score.  DP McCarthy said, “It could not be a justifiable reason or even part of a reason for the development of a plan solely for [the manager]”.
The Sales Manager repeatedly asked for details of the performance concerns and expressed his fear that the Company was going to use this process to force him out of his job.  Ultimately, he was given until 17 August 2011 to sign the performance management plan or be dismissed.

Heinz argued that the dismissal occurred because the Manager refused to take part in discussions about performance concerns or even sign up to an individual performance management plan.  However, Deputy President McCarthy said that he did not accept Heinz’s argument, but believed the dismissal was instead based on a possibly flawed view that his performance required improvement.

Deputy President McCarthy said Heinz had not satisfied him that reinstatement was not possible and ordered that it appoint Mr. Moretti to a position on no less favourable terms and conditions than his former position, and repay the remuneration he had lost between his dismissal and the reinstatement.

(Frank Moretti v HJ Heinz Company Australia Ltd [2012] FWA 1016 (7 February 2012))

Fair Work Australia has recently upheld Westpac’s dismissal of a customer service employee who tendered a falsified medical certificate.

Commissioner Deegan said Westpac had no alternative to dismissing the employee after she falsified the medical certificate and then alleged workplace bullying when confronted with the allegation.

Commissioner Deegan said she was satisfied there was a valid reason for the termination of the employee’s employment and that she had been afforded procedural fairness.

Commissioner Deegan said, “I did not find the [employee’s] evidence persuasive in relation to her reasons for falsifying the medical certificate.”

 “Her evidence was contradictory and her story changed whenever she was shown that her version was not supported by the evidence.”

Ropafadzo Tokoda v Westpac Banking Corporation [2012] FWA 1262 (14 February 2012)

The Federal Magistrates Court has found that Queensland Newspapers summarily dismissed one its printers because of repeated misbehavior, rather than his exercising of workplace rights, as was alleged.

The printer, Mr. Gofton, had 34 years’ service.  He claimed the Company dismissed him after he sought to access the supplementary personal leave entitlement pursuant to the relevant industrial award, and when his request was refused, Mr. gofton complained about the refusal.  He argued the Company also forced him to attend a meeting with managers after the refusal.

However, Federal Magistrate Jarrett found he was not entitled to the leave, as he had failed to fulfil the conditions for payment provided in the  award.  His Honour said the printer had failed to provide sufficient certification, and in any case the leave was only available for “illness and non-compensable injury“.

The printer had sought the 9 days of leave when he returned to work after taking compassionate leave following the death of his mother, as he had exhausted all of his personal/carers’ leave during her illness. The Company’s HR manager, Ms. Hawkes, rejected the application on the basis that personal leave was not intended to replace compassionate leave.

The court’s ruling meant two bases of Mr. Gofton’s adverse action claim failed, as his lack of entitlement to the leave meant the Company lawfully took adverse action when it refused to pay his leave claim.  Further, the court ruled that the Company had in fact adequately responded to Mr. Gofton’s complaint about the non-payment of the leave, and not failed to adequately respond to his complaint, as alleged by Mr. Gofton.

His Honour also found that the Company did not require the printer to attend a meeting with its Operations Manager, and it did not summarily dismiss him because he made, or pursued, his supplementary leave claim. His Honour accepted that the “real reason” for the Company’s dismissal of the printer was his “unacceptable behaviour over a period of time and about which he had been warned“.