Posts: Disciplinary Action

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

Cases and Legislation June 2020 NEWS ALERTS NSW Work Health Safety Legislation Amendments The Work Health and Safety Act 2011 (NSW) (WHS Act) was recently amended giving effect to some of the recommendations of the 2018 national review of the modern WHS Act. ...

Cases and Legislation February 2020 Post-Employment Conduct “Ex-employee fined for contempt after breaching Court undertakings" Maxilift Australia Pty Ltd v Donnelly [2020] SASC 8 Executive summary A former sales manager has been fined $7,115 and found in contempt of...

Drunkenness and vomiting at after work drinks did not justify employee's dismissal.

Employers' duty of care for employees, duty of care and contributory negligence, workers compensation and working from home, multiple roles and overtime, general protections and reason for adverse action.

Employee conduct and codes of conduct, employers’ liability and employee out-of-hours conduct, employer in breach of privacy laws, redundancies and suitable alternative employment, workplace bullying and disciplinary action

Workplace investigations and the disciplinary process, labour hire company convicted, review of Miscellaneous Award 2010, recruitment, criminal records and discrimination, sports Law - player suspensions and stand downs

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.

As the Israel Folau saga enters another chapter, our Managing Director Athena Koelmeyer shared her thoughts with Smart Company’s News Editor, Matthew Elmas, on how this case will potentially affect all employers and employees not just sporting organisations and athletes.

A recent decision of the Fair Work Commission (FWC) has reminded employers of the importance of taking a measured and consistent approach to enforcing workplace policies and procedures.

Defamation in the workplace is more often than not associated with disgruntled employees making adverse or negative remarks about their employer (or former employer).

One legal instrument commonly used to provide the parties with assurances about the finalisation of matters between them is a deed of release.

It is becoming increasingly challenging for employers and employees to understand where the line is between a relaxed, open and friendly workplace culture

The matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason.

The 76ers are in the spotlight again following recent posts on the Twitter account of Bob Muscala, the father of one of its players.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

The last 48 hours has seen a lot of discussion in sports media about employment contracts centred around the Wests Tigers, Ivan Cleary and the Penrith Panthers

Small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation.

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

If dishonesty does find its way into the workplace, employers must act swiftly and hold employees accountable where necessary, so that it does not become a part of the workplace culture.

Implementing a Code of Conduct is vital to establish and maintain expected standards of behaviour in the workplace. For some workplaces, it may also be appropriate for organisations to regulate the out-of-hours conduct and behaviour of employees.

In a recent Fair Work Commission decision the FWC commended the Employer for its process in terminating the employment of a habitual latecomer.

When an employer decides it would like to implement a new policy or amend one of its existing policies, key steps in the process are sometimes overlooked – communication and training.

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation. Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.

On 10 July 2016, a Mount Buller Reindeer Ski Club employee posted to Facebook a scathing assessment of guests employed by recruitment company, Michael Page Recruitment. The Ski Club employee alleged that the 22 guests caused a nuisance, were heavily intoxicated and became abusive to her and the Ski Club’s Manager.

In determining whether an employee’s termination was harsh, unjust or unreasonable, s 387 of the Fair Work Act 2009 (Cth) (FW Act) provides a list of criteria the Fair Work Commission will consider. One such criterion is whether there was any unreasonable refusal by the employer to allow the person to have a support person present in any discussions relating to dismissal.

Text messaging is a good way for people to communicate as messages are generally short meaning senders stick to the point and messages are direct to a person’s phone. Unfortunately there are some major drawbacks to the use of text messaging in the employment context and we have noticed a steady increase in cases before the Fair Work Commission (FWC) where text messages have contributed to the situation in dispute.

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.

Employees often argue that they have a “right” to a support person when they are invited to attend a “show cause” or termination meeting.  Do employees have this “right”? Should a disciplinary meeting go ahead if the employee does not bring a support person?

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

The internet and email are essential tools for most businesses. Email makes correspondence and transactions simple and efficient, but it is also easy to send the wrong email to the wrong recipient!

The Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (the Commission) the power to make orders to stop bullying where it is satisfied pursuant to section 789FF that: (1) A worker has been bullied at work by an individual or group of individuals; and (2) There is a risk that the worker will continue to be bullied at work by the individual or group.

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc) to overlook or shortcut the disciplinary process and to proceed directly to the termination of an employee’s employment. This failure to commence formal disciplinary procedures may expose employers to liability where the employee claims that he/she was denied procedural fairness.

Employers are often uncertain as to how to deal with the out of work hours conduct of employees.

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

Whether the termination of an employee’s employment was procedurally fair or unfair forms the basis of the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). Employers can often put themselves at risk of unfair dismissal claims when procedural fairness is not provided to employees during disciplinary action and / or the termination process.

The Fair Work Commission has often held that a dismissal will be found to be harsh, unjust or unreasonable when one of the reasons for the termination of employment included an event which occurred earlier and which was not addressed at the time. This is encapsulated in the concept of “use it or lose it”.