July 16

Do I really have to go?

Everyone has those appointments, tasks or events that they just don’t want to show up for. However, there are some things you must bite the bullet and attend.

It should go without saying that one of those times is when your attendance is required by a court.

It appears this common sense has not transferred to required attendance by the Fair Work Commission (FWC).

Though the FWC is a tribunal and not a court, it is still essential that you attend when required to do so. Non-attendance at a FWC conciliation or hearing never goes well for the party not in attendance.

If you believe that by not attending, that no order can be made against you, you are very much mistaken. A Member of the FWC has the power to decide on a matter in the absence of a required attendee.

It is also incorrect to believe, that by not participating in the process, any orders made against you will be unenforceable. Non-compliance with an order of the FWC is a criminal offence. The other party can seek enforcement through the Federal Circuit Court of Australia or the Federal Court of Australia. These courts can in addition to enforcement order a monetary fine for non-compliance.

Case Examples of Non-Attendance

Staying in a similar area of law as my colleague’s blog last week, there are two unfair dismissal case examples from this year, that show some people need to be reminded to participate in the FWC process.

The first is Giuseppe Trigilia v Di Carlo Civil Construction Pty Ltd atf Di Carlo Drainage Trust [2019] FWC 1832. In this case the employer, Di Carlo Civil Construction Pty Ltd, did file a Form F3 – Employer response to unfair dismissal application. Yet the employer did not attend the two conciliations, file any further material, attend the telephone Mention hearing, nor attend the arbitration conference/hearing. The FWC was unsuccessful in attempts to contact Di Carlo Civil Construction Pty Ltd using the details provided on the Form F3.

In the second case, Farzana Khan v Oakleigh Fruit Barn [2019] FWC 3458, Oakleigh Fruit Barn did not file a Form F3. The FWC, after multiple attempts, managed to speak to Mr Darren of Oakleigh Fruit Barn before the conciliation. Mr Darren informed the FWC that he had not received any notification of the matter. Mr Darren confirmed his telephone number for the conciliation and receipt of another copy of the documentation. After multiple attempts to contact Mr Darren for a second conciliation the matter proceeded to a hearing. Mr Darren did not file any material for the hearing nor respond to any attempt by the FWC to contact Mr Darren by telephone calls, email, sms messages and mail. Mr Darren did not attend the hearing.

Deputy President Masson concluded that by not participating Mr Darren showed that he had made a conscious decision not to participate. Though Mr Darren had the opportunity to respond he failed to do.

By not filing any materials or attending the employer organisations’ were unable to respond to the submissions and evidence of the Applicants nor provide additional evidence or explanations. The evidence of the Applicants was left unchallenged and accepted by the FWC Members.

In both cases it was found that the employees had been unfairly dismissed. They were both awarded monetary compensation. The compensation amount may have been reduced if the Respondents had filed material or attended to lead evidence that the amount would have impacted the viability of their business in accordance with section 392(2)(a) of the Fair Work Act.

Reminder

It is always best to file forms and material and attend the FWC when required to do so. No matter what you think of the matter or the prospects of success. By doing so it gives you the opportunity to respond to the submissions of the other party, provide additional information or explanations for your case. It might also provide you with the opportunity to decrease the amount of any monetary compensation orders made.

If the reason for considering non-attendance is the cost of representation you can represent yourself in the FWC. Nevertheless, it is strongly advised that you have a representative to assist you by explaining the process and helping you prepare.

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July 8

To text or not to text? That is the question.

Technology has fundamentally altered the way in which we interact. Five billion people use text messages globally every day.  Socially, it is one of our primary ways of interacting. Staggeringly, if you are dating someone born after 1984, there is a 53% chance that if that person ends your relationship, it will come to an end via some electronic device, rather than a face to face meeting.  Welcome to the modern world.   

For many business people, SMS is one of the primary ways that they interact with their employees when they are not at work.  So if it is becoming normal for romantic relationships to end via SMS, is it appropriate for an employment relationship to end this way?  Last week, two senior members of the Fair Work Commission have independently answered this question with an emphatic ‘No’.

A year ago, a colleague of mine blogged about the issue of face-to-face dismissals, following a dismissal vial email being challenged at the Fair Work Commission. The effect of that blog was to advise our readers of the Fair Work Commission’s view that communicating an employee’s dismissal other than via a face-to-face meeting were only to be used in ‘rare circumstances’. In these two more recent cases last week, the Fair Work Commission has shown us that nothing has changed in the past year.  

In the first case, Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, Mr Wallace, a casual security guard, was dismissed by text message. AFS Security 24/7 Pty Ltd submitted that as a casual employee they could dismiss Mr Wallace at any time and for any reason. In defending their use of a text message the employer submitted that text messages were the ‘normal method of communication’ for the company and that the preference for text messaging was a ‘generational thing’.

Commissioner Cambridge stated that an employee should be dismissed face-to-face. The use of text messages or other forms of electronic communication should only be used if there is a ‘genuine apprehension of physical violence or geographical impediment’.

The small size of the company and common use of text messages in communicating with its employees did not provide an excuse for the company not to comply with its obligation to communicate the dismissal in person.

The second case, Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116, involved Mr Van-Son Thai, a first class sheet metal worker, who was informed of his dismissal via text message. Mr Van-Son had worked for Email Ventilation Pty Ltd for 12 years and had refused to accept an offer of decreased wages.

Deputy President Sams, another very senior member of the Commission, confirmed the same view as his colleague Commissioner Cambridge, in finding that it is inappropriate to inform an employee of their dismissal via text message, email or phone. It is only in very rare circumstances that it would be appropriate to do so, such as when an employer feels that their safety is threatened.

Further, Commissioner Cambridge and DP Sams expressed that dismissal has a significant impact on employees. Employees should accordingly be treated with dignity and respect during the dismissal process.  Commssioner Cambridge described the actions of the employer in this case as “unnecessarily callous”; DP Sams describing the dismissal in his case as being “disgraceful and grossly unfair”.

In both cases it was found that the termination of the employee was harsh, unjust and unreasonable, and significant compensation orders were made.

What Employers can Learn from these Cases

While it can be a difficult conversation to be having in person, and even though use of electronic methods of communication in business is increasing, an employee should always be informed of their dismissal in person. The size of the business or their main method of communication does not negate this obligation. Basic decency dictates this, and we cannot see this changing any time soon, despite society generally embracing technology more and more each year.

Using electronic means of communicating dismissal should only be used if the employee has been given ample opportunities to meet face to face and refuses to meet or there is a threat to safety or there are geographical limitations.

In our experience from a practical context, providing a courteous and open forum to communicate the employer’s decision, greatly decreases the potential for employees to be aggrieved enough by the outcome to consider challenging the dismissal legally.

A dismissal does not have to be affected in an adversarial or combative manner. Often, having a respectful conversation, which allows the employee to preserve their dignity, can be the best protection against the issue escalating unnecessarily. Even if the employee becomes abusive or emotional, the employer/manager is well advised to remain as calm as possible.

It is also recommended that employers provide the employee with an opportunity to have a support person present. Contrary to common belief, the Fair Work Act does not create a positive obligation to provide this.

The employer only must not ‘unreasonable deny’ the employee a support person. In our experience, however, the best practice is to actively provide an employee an opportunity to have a support person present during a termination or disciplinary meeting. While an employer does not have to unreasonably delay the meeting for the employee to find a support person. If a reasonable request is made, the request should not be refused.

The employer is entitled to impose conditions on who the support person is (for example not a lawyer) and also require a confidentiality agreement to be signed by the support person. The support person is not an advocate for the employee and in most cases should not actively take apart in the meeting. If they do repeatedly interrupt or intervene, it is appropriate to ask the support person to leave.

Final Note

Employees will often bring termination claims where there is no merit, simply because they are aggrieved at the way they have been treated by an employer. Irrespective of the lack of merit, these claims are inconvenient and costly.  At other times, employees will walk away from a potentially valid claim, often because they hold no grudge, and merely wish to get on with their lives.  In our experience, the best protection against potential legal claims arising from termination of employment, is to treat your employees with dignity and respect. We may have become a society of disconnected ‘text-aholics’, but when it comes to the dismissal of an employee, the basic rules of common sense and human dignity still apply.   

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July 10

#TimesUp on inappropriate workplace behaviours

The Fair Work Commission is showing little tolerance for inappropriate workplace behaviour in the #metoo era.

A number of Unfair Dismissal decisions before the Fair Work Commission this year reflect that the #metoo movement is gaining traction in Australia, with employers beginning to adopt a much higher standard of what is appropriate in the workplace, and taking swift action in dismissing workers engaging in inappropriate behaviour. The Commission has traditionally shown limited tolerance for sexual harassment or misconduct, but recent cases have shown that it’s also solidified this position in response to changing community standards. The recent cases show a reluctance by the Commission to accept employee’s excuses for bad behaviour, often scathing in its response to a sacked employee’s claims that they were only having a joke or meant no offence. Excuses that they were intoxicated, suffering mental health problems, or that the conduct in question occurred out of work hours have done little to win the Commission over. Australian employers, with the backing of the Commission, appear to be signalling that inappropriate behaviour in the workforce will no longer be tolerated.

In the case of Carmelo Sapienza v Cash in Transit Pty Ltd T /A Secure Cash [2018] FWC 607, Mr Sapienza’s employment was terminated after complaints were received regarding inappropriate sexual behaviour by Mr Sapienza when visiting client’s premises, including hugging two female employees 30 years his junior, and asking for kisses and phone numbers. The Commission rejected Mr Sapienza’s assertions that he was merely being cheeky and joking around, and any physical contact was friendly and consensual. The Commission held: “Despite Mr Sapienza’s explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naïve, to say the least.” The Commission indicated that ignorance won’t be tolerated stating that if Mr Sapianza didn’t know or appreciate that that he engaged in inappropriate behaviour, which may not be reciprocated willingly by much younger persons, then he ought to have. The Commission, in this case, was willing to overlook some clear procedural deficiencies involved in Mr Sapienza’s dismissal given the gravity of the conduct.

In Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761 the Commission again supported the sacking of an older man unwilling to recognise the seriousness of his conduct which included making excessive sexual remarks and engaging in inappropriate physical conduct with young female subordinates, including sharing his chair and massaging staff. The Commission found that Mr Abarra demonstrated a complete lack of remorse or recognition of the seriousness of his conduct, with Mr Abarra’s arguing that because the staff laughed when he made the sexual comments and did not tell him to stop, he could not have been offending anyone. The Commission held that Mr Abarra’s comments to the young female employees “were in fact a rather blatant form of benevolent sexism which has no place in the workplace”.

Out of hours inappropriate behaviour has also been found to be within the employer’s domain. In Colwell v Sydney International Container Terminals P/L [2018] FWC 174, the Commission upheld the dismissal of a worker who sent a pornographic video to 19 co-workers outside of work hours despite no formal complaint being lodged by the employees to whom the video was sent. The sacked employee asserted that he didn’t mean to cause offence, he thought it was a “bit of a joke”, “a silly mistake on the drink, and he displayed genuine remorse afterwards. Despite arguing that the video was sent in his non-work hours and as such it wasn’t for the employer to regulate the appropriateness of communications between friends outside the workplace, the Commission determined that Mr Colwell was Facebook friends with co-workers only because of their work relationship, and as such there was a connection between out-of-hours conduct and the employment. The dissemination of pornography to employees was clearly contrary to the values and culture that the employer was endeavouring to engender, including the minimisation of sexual harassment of female employees.

In Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148 the Commission upheld the dismissal of a manager, with 30 years tenure, for sending numerous salacious texts to younger female co-workers, who failed to recognise the inappropriateness of the frequency, timing and content of his messages. Despite the manager’s insistence that the text messages were both welcomed and reciprocated, the Commission observed that:

“In this day and age young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed towards them in their workplace.” The employer and the Commission rightly discredited any attempt by Mr Reguero-Puente to argue that because the junior employees did not explicitly tell him to stop, the conduct was welcome, particularly given the power imbalance caused by the age and seniority differentials between Mr Reguero-Puente and the employees he harassed.

In Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital [2018] FWC 3921, a 47 year old employee was dismissed for serious misconduct after he was found to have engaged in inappropriate conduct towards a young graduate nurse in sending a lewd Instagram post. Mr Bridgwater argued that his dismissal was harsh on the basis that the message was at the lower end of the spectrum of sexual harassment, the nurse’s response suggested it wasn’t unwelcome, and it was sent outside of work hours. The Commission decisively rejected all such excuses, arguing against Mr Bridgwater’s attempts to minimise the nature of the message sent, finding that it was a highly offensive and unwelcome message of a sexual nature, in clear contradiction of the employer’s “detailed” policy on sexual harassment, in which Mr Bridgwater had received training.

Concluding comments

Some Australian employers appear to be losing patience with inappropriate sexual behaviour which puts the health and safety of its workplace at risk. In the #metoo era with an increased public awareness of the incidence of workplace sexual harassment, employers are starting to recognise that if allegations of inappropriate workplace behaviour and sexual harassment are not adequately responded to, they may instead be played out in the media or through litigation against the employer for its part in the misconduct. Rather than minimising or justifying behaviours, or victim blaming, some employers are indicating that inappropriate sexual comments, the sharing of pornography, lewd messages, everyday sexism, and unwanted physical contact will no longer be seen as just having a joke with no harm intended. Instead, with the apparent support of the Fair Work Commission, #TimesUp for some workplace sexual harassers.

 

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