The FWC has refused to take the "extraordinary step" of temporarily halting an employer's recruitment process while it determines whether an unsuccessful candidate was "bullied". The employee, a senior research fellow at the University of Queensland, alleged the institution bullied him when it overlooked him for a new role and didn't extend his existing employment contract. He blamed his failure to secure the position on an anonymous complaint about his research, which led to a misconduct investigation. The employee made a stop-bullying application, arguing that at least two of the four people on the interview panel knew about the inquiry into his alleged research misconduct, and that his interview was unfair because he was not given the opportunity to discuss his research. While his claim proceeds, the employee sought an interim order restraining the employer from appointing a new candidate to the role he wanted. The employer argued the employee ...

An employee who claimed his new team leader micromanaged and bullied him has had his stop-bullying application rejected, after the Fair Work Commission found her behaviour "abrupt" but not repeated or unreasonable. The Bunnings Warehouse employee claimed that in May 2016 the new team leader asked him about his face – the left side of his face "droops" and he is unable to move his left arm – which he found "deeply disrespectful and hurtful". A few weeks later, the team leader on two occasions confronted him and questioned why he was in different sections of the store, he told the Commission, noting he believed he was being singled out and treated differently from colleagues. He contacted the store manager to discuss the issue but was told she was too busy to speak with him, and he subsequently took two days off because of work-related stress. The employee claimed that when he returned to work, the employer suspended him but didn't tell him wh...

Social club ordered to pay worker $27,000 after firing him over claims he made sexual comments and revealed the company’s finances to patrons A social club venue in Melbourne has been ordered to pay thousands of dollars in compensation to a worker it dismissed over allegations he had told patrons the business had no money and had alleged open discussions of a sexual nature about activities with women in Thailand. The worker, who had been employed at South Oakleigh Club in Melbourne from July 2012 until January 2017, lodged an unfair dismissal claim with the Fair Work Commission when he was fired after the general manager of the establishment put five allegations to him. These included that he had told patrons of the venue that the business “had no money”; that he had revealed confidential details of another staff member’s employment to one of the club’s members; that he had spoken disrespectfully to management; and that he had engaged during work time in ...

In Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee [2017] FWCFB 1714 (18 May 2017) ( Tasports ), a Full Bench of the Fair Work Commission has clarified the obligations of labour hire employers when dismissing an employee . The decision in Tasports makes it clear that, when determining whether to dismiss an employee, labour hire companies cannot simply rely on the process adopted by a host business. The facts of the case Tasmanian Ports Corporation Pty Ltd ( Tasports ) is a State-owned company which owns and operates a number of ports in Tasmania. It also engages in a number of other commercial activities, including supplying labour to privately-owned ports. Amongst its clients is Grange Resources Limited ( Grange ), a mining company which processes and ships iron pellets on the north coast of Tasmania. Mr Gee was an employee of Tasports for a number of years, and was assigned to work for Grange from 2009 until his dismissal in August 2015. The termination of Mr Gee...

Does a Performance Management Process Need to Be Formal? Formal written warnings and structured performance improvement plans are not an essential requirement to prove that a dismissal, based on poor performance, is fair. This was held by the Fair Work Commission (FWC) in Etienne v FMG Personnel Services Pty Ltd [2017] FWC 1637 , where an employee's dismissal was found to be not unfair, despite the employer's failure to: provide formal warnings about his performance; keep contemporaneous file notes; or formally performance manage him. However, the case does reinforce the need for employers to provide evidence of communication of performance expectations, and an opportunity for an employee to address any identified underperformance. Background The employee commenced as a logistics controller with FMG Personnel Services Pty Ltd in September 2014. From around September 2015 the Company had concerns about the employee's performance, such as: his lack of understandi...

Knowledge is power when it comes to managing claims risk Unfair dismissal applications are all too common and employers regularly find themselves in hot water when they are on the receiving end of one. Whilst the outcome of every unfair dismissal case tends to turn on its own individual merits, opportunities to learn and refresh one’s knowledge consistently arise – and knowledge is power when it comes to managing claims risk. To assist you in managing your unfair dismissal claims risk, this article set out some important lessons and reminders compiled from a number of recent unfair dismissal decisions made by the Fair Work Commission. If an employee has “gotten away” with certain conduct in the past, it can be difficult to later justify their dismissal for such conduct. In West v Holcim (Australia) Pty Ltd [2017] FWC 2346, the applicant employee allowed a casual labour hire worker to operate a crane without adequate supervision. This was despite the fact that the labour hire wo...