CFMEU appeal refused: where to for general protections?

In the most recent edition of PCS’ quarterly publication, Strateg-Eyes, we took a look at a decision (Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76) in which the Full Court of the Federal Court (the “Full Court”) held that adverse action is not taken against an employee if that employee is dismissed due to the impact on the employer of the employee exercising a workplace right, rather than due to the exercise of that workplace right itself.

We can now report that the High Court has refused to grant the CFMEU leave to appeal that decision.

The High Court’s refusal is significant in that it cements as good law the Full Court’s view that there is a distinction between the impact and exercise of a workplace right. This means that employers may now be able to defend a general protections claim despite:

>    the employee in question exercising a workplace right; and
>    adverse action having been taken,

if the employee’s exercise of that right negatively impacts the business, and that impact is the reason for the adverse action being taken.

While such arguments (and their potential for success) will always play out in light of the circumstances (for example, the terms of any relevant modern award or enterprise agreement), there is no doubting the significance of this development.

On top of previous decisions (Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41) which have held that it is the subjective reasons of the employer that are relevant in determining whether adverse action has been taken for a “prohibited reason”, the High Court’s refusal has mounted another hurdle for employees to clear if they are to succeed in a general protections claim.

For further advice on what the High Court’s refusal might mean for your organisation, contact one of the PCS team today.

An Important Update on Redundancy Payments

In September, we reported on a decision (National Union of Workers; United Firefighters’ Union of Australia v Compass Group Pty Ltd [2015] FWC 6055) of the Fair Work Commission (“FWC”) which considered when an employer will and will not be exempt from making a redundancy payment because the termination of employment in question is “due to the ordinary and customary turnover of labour”.

A Full Bench of the FWC (“Full Bench”) (in Compass Group (Australia) Pty Ltd v National Union of Workers; United Firefighters’ Union of Australia [2015] FWCFB 8040) has upheld an appeal against that decision, quashing Commissioner Roe’s original order which required the employer, Compass Group Pty Ltd (“Compass”), to make redundancy payments to a number of employees whose employment was terminated following Compass’ election not to renew several of its government contracts.

Reasoning

The Full Bench held that while redundancies arising “because of economic circumstances, technological change or company restructure involve a common element of unexpected termination” (thereby justifying a redundancy payment), “termination of employment where an employee has been engaged for a job or contract is in a different category” (not justifying a redundancy payment). The Full Bench proposed a streamlined test to determine whether a termination of employment is due to the ordinary and customary turnover of labour:

  • “…it is necessary to consider the normal features of the business and then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that business…

The Full Bench accepted that:

  • over a 12 month period, 54 per cent of Compass’ employees had been dismissed at the conclusion of one of Compass’ contracts;
  • since 1999, 67 per cent of Compass’ employees in the defence sector had been dismissed in such circumstances;
  • the employees in question were employed for a particular contract which implied a link between their employment and that contract;
  • dismissing employees at the conclusion of a contract was Compass’ standard practice; and
  • Compass customarily did not make redundancy payments in such circumstances, with employees understanding this (as evidenced by the long-standing inclusion of a standard redundancy clause in Compass’ enterprise agreement).

On the basis of the above, the Full Bench concluded that “the terminations of employment arose from the loss of the Department of Defence contracts and in the context of Compass’ business, this was due to the ordinary and customary turnover of labour”.

Lessons

The Full Bench’s decision is a win for employers because it indicates the correct approach to determining whether a termination of employment is due to the ordinary and customary turnover of labour is a question that “necessarily focuses on the business circumstances of the employer”.

It also indicates that the “ordinary and customary turnover” exception is less narrow than was indicated in the FWC’s first decision – for example, the exception may apply if a link between an organisation’s business contracts and contracts of employment can be implied, despite those contracts not being “clearly tied”.

For advice on your obligations in relation to redundancy and other termination payments, contact one of the PCS team today.

Ringing in the New Year without having to ring your Lawyers

With end of year festivities underway in most workplaces here are some helpful tips for employers to get the most out of celebrating while avoiding the fallout that often arises in the morning, week and month after.

1.  Manage the alcohol

As obvious, while perhaps controlling, as this may be perceived by some workers, employers must take steps to ensure the responsible service of alcohol to employees during the end of year party (and any party for that matter). This includes:

  • communicating with the venue about their procedures for ensuring the responsible service of alcohol;
  • offering light beer and soft drinks; 
  • providing plenty of tasty food throughout the night (preferably prior, or at least simultaneously, to the popping of champagne); 
  • a commitment to cutting off the service of booze at a reasonable time; and
  • recognising that employees “kicking on” doesn’t necessarily mean employers are absolved of any responsibility for their subsequent actions.

2.  Reminders are mandatory; make the most of them

Everyone expects the email from HR about the upcoming party, the organisation’s position on acceptable behaviour and the responsible consumption of alcohol - it’s a must for any employer. However, it doesn’t need to be a boring, killjoy communiqué that people don’t even bother to read. Use it as an opportunity to hype up the event while also getting the mandatory message across by treating employees as adults.

3.  Get home safe

If your event isn’t easily accessible by public transport, you need to provide a safe option for people to get home. Whether it’s handing out cab charges, arranging a bus or calling Ubers, designate a manager to stay sober and ensure that each and every attendee has an acceptable way home. The costs pale in comparison to the alternative if something goes wrong. 

4.  Entertainment in addition to booze

Just because dry parties are a tough sell in Australian workplaces doesn’t mean the bar has to be the only source of entertainment at the party. Arrange a Kris Kringle gift exchange, hire a band and think about some activities that don’t revolve around lemons and salt. Try organising a team building exercise that works towards building stronger ties among employees. 

5.  Have fun

Never forget what the party is about: celebrating the successes of the past year and setting the stage for an even better 2016. Use the event as an informal team building exercise where staff can bond and new team members can get to know the boss. The last thing you want is for this great opportunity to be turned into a disaster. 

Happy holidays from the whole PCS Team!

​BYOD Policy: Should You Consider One for Your Organisation?

There is no doubt that the prevalence of mobile devices in the workplace has increased exponentially and is likely to continue. Technology is changing the face of the workplace including how employees work, where employees work and when employees work.

Some organisations are taking advantage of the technological age by doing away with dinosaur computers chained to desks instead opting for laptops and tablets because of their flexibility, transportability and convenience. Some employers are even going as far as introducing bring your own device (“BYOD”) policies in the workplace thereby cutting the cost of employer provided devices.

So, should you consider a BYOD policy in your organisation?

What is BYOD?

Bring your own device or BYOD is the practice of allowing employees to use their personal devices (such as mobile phones, laptops and tablets) for work purposes in and/or outside of the workplace. BYOD is not limited to allowing employees to check emails or perform work on their laptops. It may also entail allowing (and even encouraging) employees to use workplace specific applications such as a remote desktop, clock in and clock out systems and intranet functions.

What are the benefits of BYOD?

An effective BYOD arrangement can be beneficial for an employer. Not only are there reduced business costs associated with not having to provide employees with computers and mobile devices, there are also benefits such as:

  • flexibility;
  • increased employee satisfaction (by way of using devices employees know, like and understand);
  • increased productivity; and
  • increased efficiency and opportunity.

Whether a BYOD arrangement will have a significant beneficial impact on an organisation will be determined on a case-by-case basis depending on the type of organisation and the information and type of devices used in the organisation. There are a variety of arrangements that can be tailored to suit the needs of the business, including a mix of employer-provided devices and employer devices.

What are the risks of BYOD?

When employees use employer-provided devices, an employer can configure the computer as they please and make strict policies about how it is used and monitor that usage. The difficulty with BYOD is monitoring and controlling how an employee uses their own device, especially since the employer is limited in its control.

Some of the risks associated with BYOD include:

  • privacy breaches;
  • unauthorised use;
  • excessive use;
  • vicarious liability; and
  • breaching workplace surveillance laws.

While these risks are not insignificant, there are many ways an employer can overcome and manage risk including implementing a BYOD policy or amending any existing electronic communications policy to incorporate BYOD. Many employers may consider that a ban on personal devices or taking a blanket approach is an effective means of exercising control and managing any risks. While this method may enforce security, it renders any electronic device useless and any benefits that personal devices bring to the organisation would also be eliminated.

Implementing BYOD in your organisation

Before considering adopting a BYOD scheme, employers may wish to review their electronic communications policy and make certain that it clearly states what is and is not acceptable use ensuring that it draws a line between personal and business use. An employer may wish to retain the right to monitor, access and review data on the personal device associated with the use of the device for business purposes (ensuring that they comply with any relevant workplace surveillance laws). It is also best practice to consider including provisions around employees obligations, such as obligations upon termination of employment regarding deletion of data. Having a BYOD policy in place as well as a clear electronic communications policy will assist in ensuring that when an incident does happen, there is a set of policies and procedures in place that all parties are aware of and have agreed to. That way, for example, an employee won’t be shocked when he or she is asked to hand over their device for a partial ‘wipe’ before leaving the organisation.

If you are considering implementing BYOD in your workplace and need help drafting a policy or reviewing an existing policy, please contact the PCS team on (02) 8094 3100.

Serious Misconduct: when is it safe to terminate without notice?

Kathryn Dent, Director and Beverley Triegaardt, Associate

It’s a situation no employer hopes they’ll have to deal with, but just in case you must, here’s what you need to need to know about instantly or summarily dismissing an employee due to serious misconduct.

WHAT IS SERIOUS MISCONDUCT? 

The definition of serious misconduct under the Fair Work Regulations 2009 (“the Regulations”) expands on the common law definition as including: 

  • wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; or 
  • conduct that causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business. 

Depending on the circumstance, examples of serious misconduct include: 

  • theft; 
  • fraud; 
  • assault; 
  • intoxication at work; 
  • refusal to carry out lawful and reasonable instructions

Where an employee engages in serious misconduct, an employer is at common law entitled to summarily dismiss them, which in other words deprives the employee of any notice or payment in lieu. Many written contracts of employment will set out grounds. The employer is permitted to summarily dismiss as long as it can demonstrate that the employee has engaged in serious misconduct, serious enough to warrant instant dismissal.

Commonly, employers question what exactly that constitutes sufficient evidence for establishing the conduct occurred and how serious the conduct must be to avoid to the risks that can follow from terminating employment without notice. In short, an employer’s exposure to the legal and non legal risks will be minimal if:

  • the employer has complied with any relevant contractual obligations, policies and procedures;
  • the employer has observed procedural fairness particularly in circumstances where the employee has access to the Fair Work Act 2009 (Cth) (“the Fair Work Act”) unfair dismissal jurisdiction, which includes an investigation (in circumstances where the conduct/allegations of misconduct may be factually in dispute);
  • the employee has wilfully or deliberately engaged in conduct that is inconsistent with the continuation of their employment;
  • the employer is reasonably satisfied that, on the balance of probabilities, the conduct occurred (we discuss this in further detail in this article);
  • the employer acts without delay (the argument being that if the conduct was so serious to terminate without notice it should be done as proximate to the offence as possible); and
  • no other form of disciplinary action is appropriate.

What are the risks?

Terminating an employee’s employment without providing or paying them their notice can have both legal and non-legal repercussions for the employer.

Legal Risks

Summary dismissal can result in exposure to the following types of claims:

Unfair dismissal claim

An employee who falls within the jurisdictional threshold can claim under the Fair Work Act that the termination of their employment was either substantively or procedurally unfair, or both, if it was harsh, unjust or unreasonable. If the employee is successful, reinstatement, reemployment or up to six months’ compensation may be awarded and in some cases backpay.

General protections claim

Employees may claim under the Fair Work Act that their summary dismissal constituted adverse action because they exercised a protected workplace right or that they were discriminated against. For this reason, it is vital that the employer has evidence to dispel the claim as they bear the onus of proof. Compensation is uncapped in these types of claims and penalties may also be imposed on companies and individuals involved in the breaches.

Unlawful discrimination claim

Similar to general protection claims, unlawful discrimination claims may be pursued if an employee believes (and can prove) the dismissal was causally connected to a protected characteristic including but not limited to their race, gender, marital status or political affiliations. An employer can be liable for up to $100,000 compensation in the jurisdiction of NSW. (Federally damages are uncapped)

Breach of contract claim

If an employee can establish their conduct did not amount to “serious misconduct” then an employer may be liable for breach of contract relating to the termination of employment. Recently, an employer was ordered to pay its ex-senior executive US$2.65 million and AUD$6,425 in lost entitlements and damages when it failed to attend court to defend a breach of contract claim made by the executive after he was summarily dismissed (and thus there was no evidence to support the allegation, as pleaded, that the employee was guilty of the serious misconduct relied upon to terminate).1

Non Legal Risks

The range of non-legal risks include:

Media attention

If an employer’s actions in dismissing an employee reveal questionable or harsh practices, or reveal the inner workings and personalities within an organisation, then resultant litigation can impact adversely on that employer’s short and long term profitability if its reputation amongst its client base, prospective clients and employees and other stakeholders is damaged. In some circumstances it may be best to avoid public litigation and the scrutiny of the press by settling a matter privately. However, depending on the nature of the conduct, it may also be in an employer’s interest to show to both internal and external stakeholders the firm stance they will take in respect of certain conduct to reinforce cultural and behavioural expectations.

Impact on other employees

The serious misconduct of an employee can impact on the productivity of other employees. Workplace gossip and speculation can divert their attention away from important tasks at hand, cultivate mistrust and unease in the workplace and reduce team morale.

Punishment that fits the crime

The impact of summary dismissal on an employee is significant as not only does it mean they are dismissed with no period of notice or payment in lieu of notice but the nature of the termination is such that it can adversely impact upon their reputation, career development and ability to obtain alternative employment. Therefore, it is only fair that the degree of certainty in the misconduct having occurred and the seriousness of the allegations are considered in tandem prior to instant dismissal. This is commonly referred to as applying the Briginshaw standard.

The Briginshaw test does not create a third standard of proof in addition to the criminal (i.e beyond reasonable doubt) and civil standards (i.e balance of probabilities), but rather, requires that the more serious the allegations and/or consequences arising from a finding, the stronger the proof (ie evidence of serious misconduct) should be. The Briginshaw test does not require the standard of proof in a criminal matter – employers do not need to go to that extent to prove serious misconduct occurred – but employers do need to be reasonably satisfied by evidence of sufficient weight and feel an actual persuasion based on the evidence at hand that, on the balance of probabilities, the misconduct occurred.

Accordingly, we recommend that in order to satisfy the Briginshaw standard, a prudent employer intending to summarily dismiss an employee for serious misconduct would ensure that they:

  • diligently investigate the allegations of serious misconduct (deploying an appropriate level of resources having regard to the factual circumstances and legal risks);
  • have regard to the seriousness of the allegations and the consequences of accepting them as truth; and
  • are sufficiently persuaded that the misconduct more than likely occurred, having considered whether the sufficiency of the proof was commensurate with the seriousness of the allegations.

Is it sufficiently serious?

Serious misconduct is not defined by way of examples but can be characterised as conduct that damages the employment relationship to the point of no return. Summary dismissal may be warranted in the following circumstances, although each case must be considered on its own merits.

Employee is convicted of a criminal offence

An employee’s criminal conduct, if sufficiently serious and relevant to the employment, can jeopardise an employer’s trust and confidence in an employee which is an essential foundation of the employment relationship and can therefore be grounds for summary dismissal. Employers should be mindful that until criminal charges are proven (resulting in a conviction) summary dismissal may not be warranted. For this reason, it is recommended that employers specify in their contract and policies that criminal charges (as opposed to a conviction) can be grounds for instant dismissal.

Safety breaches

In the case of Singh v Fenner2, a mill operator was witnessed by his workmates intentionally placing his hand over a machine that was rotating at high speed and placing him at risk of serious injury. The Fair Work Commission (“FWC”) considered the summary dismissal of the employee as a justified (“not inappropriate”) response to his actions considering the potential damage that could have been caused by the employee’s reckless action (both in terms of serious injury and “significant cost resulting from disruption to the production process”). In this case, the employer was successful in defending the unfair dismissal application because it involved a serious safety breach. Not every safety breach will justify termination though and the individual circumstances must be considered.

Conduct that is not unlawful but has the capacity to bring the employer into serious disrepute

Misconduct that involves an employer being publicly associated with the actions or views of an employee may be grounds for instant dismissal. In today’s age, employers may experience this in the form of offensive or careless use of social media by employees. This sort of misconduct must be dealt with carefully and with and in a procedurally fair manner as dismissal may not always be the proportionate response to the misconduct.

Drug / alcohol related conduct

Instant dismissal may be justified if an employee is impaired by alcohol or illicit substances such that they cannot responsibly or safely perform their duties or fulfil their obligations towards their employer. Furthermore, cases such as Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35 have established that where an employer has a “zero tolerance” policy on drugs and alcohol and safety is paramount to the role the employee performs, returning a positive result in a drug test can be grounds for instant dismissal regardless of whether the employee appears intoxicated or impaired.

Dishonest conduct or theft

Dishonestly claiming personal expenses as business expenses may be grounds for summary dismissal. In Mohapatra v Acciona Energy Australia GlobalPty Ltd t/ as Acciona [2015] FWC 5976 the FWC agreed with the employer’s decision to summarily dismiss an employee after he made a number of unauthorised personal purchases on the company credit over a the course of a few months and dismissed the employee’s unfair dismissal application. Amongst the items were a blender, two Australia Day boxer shorts, a pair of gym shoes and shorts, a cooler bag, vitamins, a heater and 14 massages. The FWC observed that “it is such an extreme case, having regard to the level of education, responsibility and seniority of the employee” that the behaviour, “(e)ven if motivated by a lack of judgment and understanding” “has to be regarded as serious misconduct”.

Bankruptcy

In certain professions such as accounting or where an employee holds an executive role or directorship, it is an inherent requirement of the job to be adept at handling finances. An employee’s insolvency may be deemed serious misconduct as it can be indicative of a lack financial proficiency required for a role and also because the negative stigma attached to insolvency can be particularly damaging to an employer’s credibility and reputation. This is even more so where the employee is very senior or recognised as a public figure. In those circumstances, termination on the grounds of serious misconduct where the employee becomes insolvent, especially where such a term forms part of the employee’s contract, may be justified.

What can you do to prevent serious misconduct?

Hope for the best but prepare for the worst. Give your organisation the best chance of success against serious misconduct occurring by taking heed of these preventative measures.

Induction and training

Set your organisation’s expectations for standards of professional conduct by providing new starters with a proper induction and training on policies around work health and safety, workplace behaviour and codes of conduct.

Contracts and policies

Not only do contractual clauses and policies serve as forewarnings to employees (and are therefore advisable) but they can assist to swiftly resolve termination disputes particularly where the categories of serious misconduct are set out.

Assess your workplace culture

A culture of tolerance for wrongdoing can weaken an employer’s position when allegations of serious misconduct arise. Seek to find innovative ways to reward positive behaviours in your workplace and encourage staff at all levels to speak out in the face of questionable conduct.

What if it’s too late?

While the above measures may prevent serious misconduct from becoming an issue for your organisation, it is important to remember that an employer must deal with allegations of misconduct with a sense of seriousness and urgency, otherwise it risks being seen as affirming the employee’s continued employment. While termination may be upheld by a tribunal, it could be that termination with notice is seen, by the employer’s delay, as being the more appropriate outcome.

When faced with allegations of misconduct, follow your organisation’s policy for investigating the conduct and remain cognisant of the need for procedural fairness. This means putting all the allegations and evidence to the employee and providing them with a fair opportunity to respond. In some circumstances, a neutral third party is best engaged to investigate serious misconduct. This can also provide insurance for the employer if there is a risk of being perceived as biased.

Employers are well within their rights to terminate employment without providing notice where serious misconduct occurs. If your organisation would like to prevent serious misconduct occurring or safeguard against a summary dismissal being mishandled, please get in touch with the experienced team at PCS.


1. Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030
2. Singh v Fenner (Australia) Pty Ltd [2015] FWC 5583 (25 August 2015)