In the recent decision of  Paul Johnson v BHP Billiton Olympic Dam Corporation Pty Ltd  [2017] FWC 4097, Commissioner Hampton found that, although the employee had engaged in misconduct constituting a valid reason for dismissal, the dismissal was nevertheless harsh due to a number of mitigating factors. However, the Commissioner did not consider reinstatement appropriate because the employer had a rational basis for its loss of trust and confidence in the employee given the importance of the need for compliance with safety policy and the maintenance of appropriate discipline in connection with workplace health and safety matters. The employee was instead awarded compensation. The facts The employee was employed by BHPB from 24 May 2001 until his dismissal on 31 March 2017. At the time of his dismissal, the employee was a process specialist, responsible for a team of technicians looking after a flash furnace and other equipment in areas of a smelting facility at an und...

Recently an employee who was terminated for workplace misconduct as as result of drinking too much alcohol on Anzac Day and was awarded $8229.00 after the Fair Work Commission found that her dismissal was valid but none the less harsh under the circumstances. Avril Chapman was employed by the Tassal Group. Her job  involved scaling, slicing, weighing and packing fish.  She had  been employed since 1 August 2012 and was terminated for workplace misconduct on 1 May 2017. On 25 April 2017, Chapman telephoned Tassal at 4.56 p.m. and left the following message: “Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.” The next morning the message was heard by a Tassal senior manager, Duane Baker, who was concerned that Ms C...

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...

In situations where a public holiday such as Australia or ANZAC day falls on either a Tuesday or Thursday, businesses typically report high levels of personal leave on the adjacent Monday or Friday.  Many workers, who would otherwise normally use personal leave honestly, find the lure of a four-day weekend irresistible, and put their normal ethical standards regarding personal leave to one side. Chamber of Commerce and Industry chief James Pearson announced that in 2017, businesses were expecting 200,000 employees to call in sick on the Friday after Australia Day, and that the impromptu four-day holiday could cost the Australian economy more than $54 million. In businesses that offer essential services, or customer service, this cost is a directly economic one from disruption to productivity, delivery, and customer service. For others, the costs are more subtle, effecting workplace relationships between employees, and eroding trust between employers and their team. Whe...