Employment contracts of foreign domestic workers – do they have to comply with Australian law?

If the employment contract of a foreign worker is made the subject of an application for unfair dismissal, can the Fair Work Commission hear and decide the application?  The case of Juliet Buenaobra v Anwar Alesi [2018] FWC 4311 (06 August 2018) illustrates the law on the matter.

An Iraqi couple who worked for the Iraqi diplomatic mission had in their employ a Filipino woman working as nanny to their two children. She had signed an employment contract and was brought into Australia under the diplomatic visa stream of her employer.

Under her contract, she was promised monthly pay of $2975 with deductions of $800 for board and lodging, $125 for medical insurance and $50 for clothing. She should have received about $1750 a month but received only $800 monthly. She also shared a room and slept with the two children of her employers instead of her having her own room. She worked six days every week for long hours (beyond the usual 8 hours a day). Her total number of hours of work each week far exceeded the 40-hour workweek legislated as minimum work hours. She did not receive overtime pay for her work beyond the 40-hours.

She lodged a complaint for underpaid wages under her contract. She was then dismissed for having committed an unspecified misconduct against the family of the Iraqi diplomat. She lodged a complaint for harsh, unjust and unreasonable dismissal.

The Iraqi couple then pleaded diplomatic immunity and sought a dismissal of the domestic worker’s complaint for unjust dismissal. The employment contract lawyer for the Filipino worker said that she did not work for the Iraqi government but for the Iraqi couple. The diplomat and the Filipino worker signed a contract of employment.

The diplomat is subject to the Vienna Convention on Consular Relations which was incorporated in the Consular Privileges and Immunities Act 1972. Under this Australian law, diplomats have no diplomatic immunity with respect to a civil action arising out of a contract concluded by a consular officer or for damage arising from an accident caused by the vehicle, vessel or aircraft of the diplomat.

The Filipino worker lived and worked in the home of the diplomat and not at the consular office, her work was not rendered for the Republic of Iraq. Also, she had signed a contract of employment with the diplomat. Any dispute arising from the contract of employment is not covered by diplomatic immunity. Also, since the work was rendered in Australia, the laws on employment contracts in Australia applies to the Filipino domestic worker – she is a worker protected by Australian law and as such, she had a right to bring an application in the Fair Work Commission.

The FWC found her dismissal to be harsh and unreasonable as the only reason for her dismissal was the complaint she lodged for underpayment. The Filipino domestic worker had the opportunity to record her employers shouting at her for having filed the complaint. The FWC took this evidence finding the conduct of the Iraqi diplomats “morally repugnant” for being exploitative and akin to servitude and slavery.

In determining how much to be awarded to the Filipino domestic worker, the FWC considered that the Filipino worker did not mitigate her losses by seeking alternative employment. However, the FWC considered that the minimum wage in Manila was $89 per month and it made more sense for the Filipino worker to stay in Australia to claim for what she was owed.

The Iraqi diplomatic couple were ordered to pay the amount of $20,000 to the Filipino domestic worker. 

Blacklisting Labour-hire Employees may be a Form of Discrimination in the Workplace

Three employees who were members of a union brought a case alleging that they were working as maintenance workers at a steel rolling plant, but they filed grievance complaints over conditions at work and so the labour hire company that employed them “blacklisted” them.

One casual rigger was hired and began employment on 5 September 2016. He was the leader of an informal cell which was an “industrial association”. On 5 June 2017, the casual rigger informed the labour hire company that if the grievances he had raised were not acted upon, he would resign.

On 8 June 2017, the casual rigger resigned from employment and after his resignation, the labour hire company manager emailed the host employer to say that the labour hire company will no longer use the services of the casual rigger. The company then forwarded the email chain to another contractor urging the contractor not to employ the maintenance worker. 

The casual rigger obtained copies of the email chain and his union helped him file a claim at the Victorian Civil and Administrative Tribunal. The union claimed that the email and the action by the labour hire company discriminated against the casual rigger because it excluded him from future employment because of the grievance complaints he had filed. When the host employer forwarded the email and urged another contractor not to hire the casual rigger, this was also discriminatory.

Both the labour hire company and the host employer sought the striking out of the application, but this was declined. VCAT declined to strike out the application and set the application for reception of evidence.

The issue in this controversy is whether the labour hire company and the host employer committed acts of discrimination in the workplace when it forwarded “do not hire” emails after the employee had already resigned. Thus, the legal issue is whether the protection against discrimination in s 21(1)(b) of the Equal Opportunity Act 2010 applies to a contract worker who had already resigned.

The intent of the law was to protect the status as a union member and activities as union members by penalizing employers for discriminating against workers who engage in union-related activities. Since he had resigned before the alleged acts of discrimination were committed, then the law no longer protects the casual rigger because he himself severed the employment relationship.

However, the Equal Opportunity Act 2010 protects against “refusal to employ” workers. By sending the email and urging other potential employers not to employ the casual rigger, they have in fact refused to employ him even when a vacancy exists in their workplace. This is an example of direct discrimination in the workplace which occurs if the employer treats or proposes to treat a person unfavourably because that person possesses a legally protected attribute.

WORKPLACE DISCRIMINATION LAWYERS

Discrimination Lawyers warn: A fine line separates comedy from discrimination and harassment Most people find it easier to recognise discrimination and harassment in the workplace when threatening or intimidating tones accompany inappropriate statements. When the inappropriate behaviour is couched in comedy, it is often difficult to label the words or comments as discriminatory or harassing. However, making off-colour jokes in the workplace about a co-worker’s body shape, body size, or even their bodily functions are discriminatory or harassing.

During a preview performance of a hit rock musical, a lead actor engaged in banter with a female co-actor. It happened while they were on stage, but not while the microphone was on. He made a humorous reference about menstruation. The female co-actor felt uncomfortable and reported the incident to the management. The following day, the actor was told he didn’t have to go to work. The day after that, he received a letter of termination.

The actor concedes that his allusion to menstruation was crude and in poor taste. Comments about other people’s bodies are not appropriate in the workplace, even if they are meant to be funny. He admitted that his comment was due to poor judgment. While he concedes that the theatre company has the prerogative of terminating his services, he asserts that his termination was without due process because he was not allowed to explain or to apologise.

The Performers’ Collective Agreement governs the entertainment industry. In this Agreement, the parties are to resolve a dispute by discussion with the relevant supervisor. The actor claims that this was a single incident and it was the first time such an incident has occurred. He thought that a mediated discussion was more appropriate than termination, which was too harsh a penalty.

This incident comes at the same time when the Live Performance Australia, an association of theatre producers, issued draft guidelines describing a procedure for investigating an allegation of sexual discrimination or harassment. The draft guidelines allow for a range of penalties such as counselling, a formal written warning, a facilitated meeting or mediated discussion and only in the extreme will it involve termination of employment.

The range of penalties will depend on the severity of the offence, the number of times or instances that harassing behaviour was made, and the weight of evidence. The association of theatre producers will even consider the wishes of the complainant. In the case of the female actor, she did not seek or anticipate that her co-performer would be sacked because of her complaint.

In determining the penalty to be imposed upon an employee who is alleged to have committed acts of discrimination or harassment, it is important to remember that an employer must keep the workplace safe and ensure the health of the workers. The employer also has a right to penalise workers for violating the policies of the employer that ensures the safety and health of the workers. But the employer has an equal duty to ensure that workers accused of workplace harassment or inappropriate behaviour will be given due process. The penalty must not be whimsical or precipitate.

Have your co-workers made jokes about your body shape, body size or body functions? Did you feel uncomfortable or harassed by their behaviour? Are you thinking of lodging a complaint about harassment? Or, have you made a complaint about harassment that your employer has not taken seriously? Speak to any of the workplace harassment lawyers at MKI Legal – we’re happy to help.

What are adverse action claims?

An adverse action is any act by an employer, usually a dismissal, a demotion, a transfer, or a reduction of working hours, in retaliation for the employee’s demand or exercise of a workplace right or a workplace entitlement. This adverse action is the issue in the case of Richard Simon Lunt v Victoria International Container Terminal Limited, VIC1364/2017.

A stevedore worked at the Victoria International Container Terminal (VICT). He did not get full-time work but was given only casual shifts totalling 1,829 hours every year and without certainty about their weekly shifts. The VICT reduced the casual shifts of the stevedore and reasoned that his casual shifts were reduced because the stevedore did not have a Maritime Security Identification Card (MISC).

An enterprise agreement at VICT specified that Level 1 workers were employed for 1,820 annual hours, and they should be paid $75,206 yearly salary but with the right to payment of additional hours at an hourly rate. Despite this, casual workers at the dock never achieved the promised full-time work but were still employed casually. They were paid a flat hourly rate of $36.50 without premium pay for work at night, on weekends, and during public holidays.

The stevedore also happened to work as a union delegate for the Maritime Union of Australia. He had earlier filed a complaint about workplace bullying and harassment against VICT. The work conditions described by the stevedore were reported to the International Transport Federation. The report was based, in part, on the complaint lodged by the stevedore. He had also complained that the stevedores were systematically intimidated and their safety at the workplace was disregarded.

The stevedore filed an adverse action claim against VICT. He claimed that his casual shifts were further reduced because of the complaint he lodged against VICT. He also asserted that VICT reduced his casual shifts to coerce him to give up his adverse action claim.

In his submissions, he asserted that VICT never required other dock workers to hold a MISC. The stevedore also claimed that he had already obtained a MISC and should be re-employed. In the meanwhile, the MUA picketed the VICT. The ships due to arrive at the VICT had to be diverted.

Refusing to give an employee full-time or regular work may be an adverse action if it is done to keep the employee from exercising or claiming a workplace right. The stevedore needs to prove that the acts done by VICT (refusing to allow the stevedore to gain permanent employment status, reducing his casual shifts) were in direct response to his claim or demand to obtain permanent or regular employment status.

If the stevedore succeeds, he can ask for orders against VICT to make him a regular employee and to peg his weekly work hours. Further, if he succeeds in proving that VICT harassed or intimidated him he can claim for damages.

Do you feel that you are singled out in the workplace? Are you a victim of adverse actions from your employer? Do the adverse actions serve to stop you from further demanding or exercising a workplace right? You may be a victim of adverse actions. If you want to know what you can do to stop the adverse action, call any of our Adverse Action Lawyers at MKI Legal. We are happy to help you.

Unfair Dismissal Lawyers

Can a small business be exempt from unfair dismissal? Unfair Dismissal Lawyers weigh the case of the Manager of a Flight Attendants’ Union who sued for unfair dismissal.

The Flight Attendants’ Association is a nationwide union of flight attendants. It had dismissed a union development manager for volunteering as campaign administrator for the division secretary when the secretary ran for the national position. After she was dismissed, she stood as the support person of the division secretary during the investigation of the allegations of gross neglect of duty, gross misbehaviour and breach of fiduciary duty. After that, the FAA dismissed the secretary for allegedly supplementing his base pay with payments from a bank of leave days of the members of the FAA.

When they filed claims for unfair dismissal, the FAA raised the issue that the Fair Work Commission had no jurisdiction to hear the claims for unfair dismissal because the FAA was an employer of fewer than fifteen employees. The union claimed that the Small Business Fair Dismissal Code and not the Fair Work Act should apply to them.

The division secretary and the union development manager asserted that the elected officials of the union who were elected by the members of the union should be counted as employees. For if the elected officers of the FAA were counted as employees, the employees of the FAA would exceed 15 and the Fair Work Act will apply.

In deciding the question of whether the elected officials should be considered as belonging to the legal definition of “employees” will also include a determination if they engaged in work in any form and if their salary arrangements fall under the definition of “wages”.

Under the Small Business Dismissal Code, an employer may dismiss an employee without notice or warning when there are reasonable grounds to believe that the employee committed severe misconduct such as theft, fraud, violence and serious breaches of occupational and health safety procedures. The employer must file a complaint with the police for the theft, or fraud. For other causes of dismissal, the employer must give the employee notice that they are in danger of being dismissed. The employer must also provide the employee with the opportunity to respond to the warning.

The employees of a small business must file a claim for unfair dismissal if the employer failed to comply with these requirements. They can file a claim with Fair Work Commission and not Federal Court. In effect, the jurisdictional question raised by the FAA is meant to work as a dismissal of the unjust dismissal filed by the division secretary and the union development manager.

Are you a small business owner? Do you need advice on unfair dismissals? Do you need Unfair Dismissal Lawyers to write up a policy or protocol for dismissals for your small business? Call us at MKI Legal today.

Independent Contractors or Sham Contracting: Here’s Some Employment Law Advice

A Senate inquiry seeks to determine if the so-called “gig” economy is sham contracting, and if it is, they want to determine if young workers are exploited. Evidence has been presented that gig contracting is a means for corporations to avoid legislation that protects workers and workplace rights. For example, young workers perform temporary work, but they do not receive safety insurance or minimum pay.

Work under the “gig” economy are usually piecemeal, short-term contracts or engagements. Young workers work on internet platforms such as Uber, Foodora, Deliveroo, and Airtasker. They criticise these large corporations working through internet platforms for their flagrant disregard for legislation and avoidance of obligations to workers. These digital platforms receive commissions or fees from each short-term contract fulfilled by young workers.

One problem is, these internet platforms engage young workers as independent contractors but do not provide the workers with minimum conditions or entitlements. Young workers do not receive hourly rates for the work they perform. They are often paid per task regardless of how many hours are spent on the job. Some may be paid by the hour, but the hourly rate may not comply with the minimum hourly wage set by law.

Workers seek an amendment to the Fair Work Act to make sham contracting a strict liability offence. They want “gig” economy internet platforms to be included in the definition of “employers” so that the young workers who sign contracts will be protected as “employees”. They especially want the internet platforms to be responsible for their worker’s safety by providing their workers, health and safety insurance.

The same trend has been noted and complained of in the fashion industry where young workers are selected as “interns” to learn the ins and outs of the fashion industry. The young interns are not paid a salary or any form of compensation. They have none of the entitlements of employment, and they have no health or medical insurance. They receive the benefit of experience, the right to put their internship on their resumé as work experience, and they obtain introductions to influential persons who can provide them with future employment or further mentoring. They work long hours, often beyond the regular eight (8) hours of work per day without pay for overtime for work rendered after hours.

If you are an employer, you might find it cost-effective for your company to hire independent contractors. You may find that using an internet platform to obtain workers for short-term tasks helps curb your overhead expenses. The only risk is one contractor filing a claim for work entitlements, underpayment of salaries, or unjust dismissal.

It may do you and your business well to receive Employment Lawyer Advice. Call MKI Legal today, speak with any of our employment law advisers. They can help you find ways to comply with the necessary requirements of labour law to shield you from any future claims that contractors may lodge against you. Call us today.

Young Workers Centre submission, Inquiry into corporate avoidance of the Fair Work Act, January 2017

Sexual Harassment Lawyers say: dismissing an employee for sexual harassment may be harsh and unjust

When an allegation of sexual harassment is made against an employee, an employer must hear and investigate the allegation. When deciding to dismiss the employee who had committed sexual harassment, the dismissal must still be fair.

An employer must take care to penalize equally employees who are found guilty of misconduct. The dismissal of one employee and the demotion of another can form the basis for a finding of an unjust dismissal. This is what happened in the case of Public Service Association and Professional Officers’ Associated amalgamated Union of New South Wales (on behalf of Andres McCaskill) and Department of Attorney General and Justice [2014] NSWIRCComm 1009 (18 and 19 February 2014)

A 45-year old male was first hired as a temporary clerical officer in the District Court in 1993 but he had been promoted to various positions. By 2011, he was appointed Project Officer in the Recruitment Section of the Personnel Department. His position was supervisory.

In 2012, he attended a Christmas party. He and his line Manager were not intoxicated but they behaved inappropriately toward female co-employees. They touched the breasts of at least 5 women at the party. When the female employees complained, the Project Officer immediately tendered an apology to them. He claimed that he did not intend to offend them. He was gay, and he did it only out of good humour, thinking the women were his friends. He thought he had asked their consent, but he’d had a lot to drink at the party. He was appalled and ashamed of his behaviour and he would not repeat the behaviour.

The line Manager, however, denied that he had been drunk. He denied having touched women’s breasts nor recall that he had. He claimed that if he had touched the women’s breasts, he would have admitted it. The complaint progressed to further investigation under the Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter. The investigation found that the allegations against the applicant were not substantiated. The investigating body did not recommend dismissal given that he admitted the allegations and apologised for the behaviour. In the written report, the investigating officer emphasised his repeated admissions, his expressions of remorse and willingness to apologise and his self-remediation relative to excessive alcohol intake and behaviour toward women in a social setting. Just the same, the Director-General found the Project Officer guilty of misconduct. He was then directed to resign but he refused. He was notified of his dismissal on 20 December 2013.

At the hearing, the Project Officer asked that the complainants not be cross-examined to spare them from personal and professional embarrassment. He instead challenged his dismissal as harsh as the mitigating factors were not considered in choosing dismissal as the penalty for his misconduct. It was a singular incident for which he had taken responsibility and expressed remorse. His dismissal unfair because his Line Manager behaved in a similar fashion but never admitted to the misconduct nor did he apologise for it. And yet, his Line Manager was only demoted but not dismissed. Thus, he was treated more unfavourably than his Line Manager. Further, the penalty meted out to him did not fit his crime. Other forms of punishment could have been imposed on him in lieu of dismissal.

The Project Officer asked for reinstatement to his former position because while working at his job, he would have limited interaction with the complainants. He had a good work record. If conflicts of interest arise in the recruitment of or promotion of the complainants, relevant procedures were already in place. He had presented strong character references. Further, he worked in his full capacity as Project Officer while he was being investigated and until he was dismissed.

The Commission found that although the Project Officer did not engage in predatory sexual behaviour, still his conduct was deplorable, and it had the potential to undermine the integrity of the Department. Being gay is not an excuse. Of the five women whose breasts the Project Officer touched that evening, four laughed it off and were not offended. Only one of the complainants was offended.

Further, the Director-General could have considered giving the Project Director a caution, reprimand, fine, reduction in salary, demotion to a lower graded position or be allowed to resign. He could have been directed to enter counselling or re-training and development. He could have been placed under monitoring or a performance improvement plan. His performance could have been noted as unacceptable and unsatisfactory or he could have been transferred to another position.

Thus, the Commission found that his dismissal was harsh and unjust. The Project Officer was reinstated to his former position without back pay. A final warning letter would be placed on his personnel file that any future breach of the Code or of policies will be the basis of a summary dismissal. He would write a letter of apology to the five women. He will undergo re-training. Have allegations of sexual harassment or misconduct in the workplace been lodged against you? Do you think you have been unfairly penalised as compared to other employees who had similar allegations against them? Call us today, speak with any of the sexual harassment lawyers at MKI Legal today. We can help you.

Discrimination Law prohibits employers from treating less favourably employees with a disability

In the case of Choi v Deloitte ToucheTomatsu [2016] NSWCATAD 304 (22 December 2016), the Applicant was a chartered accountant who was first hired in 2011 but received a wage increase and a favourable performance review and was nominated for a performance excellence award. In August to November 2012, she advised her employer that she had tuberculosis of the lymph noddes. An officer from Human Resources called her while she was at the hospital informing her that she had three options: to take unpaid leave, work part time or resign.

When she returned to work from the hospital, she was told to take unpaid leave until January 2013. She was also told that there was not much work for her. After her unpaid leave, the accountant presented a certificate from her doctor that the type of tuberculosis she had was not contagious and did not pose a risk to others when it was treated properly. The doctor also certified that the accountant was compliant with treatment and was fit to work whilst undergoing treatment. Although she may need reduced duties depending on how she was feeling and may need some time off for regular medical reviews for a period of six months.

When she returned, her supervisor suggested that she should resign and to look for less stressful work elsewhere. A performance review was conducted of her work since she returned, but not of the work she performed before her unpaid leave. She was allocated administrative tasks and not work for clients as she had been previously given. The performance review meetings were conducted in a manner that put pressure on the accountant to resign. She lodged a complaint about being bullied but the employer did not investigate the complaint. A senior officer from Human Resources proposed and drafted a separation package for her to consider. He gave her three options: to have her bullying allegations formally investigated, to be moved out of her current team when other suitable positions became available, or to transition out of employment. He told her that the investigation of the bullying complaint would be very uncomfortable for her. Her best option, then, according to Human Resources was to resign.

When the accountant refused the separation package, the employer doubled it to make attractive. Instead of accepting the new separation package, the accountant went on sick leave. She did not want to resign, and she felt that she was unfairly pressured to resign. She was admitted to a psychiatric hospital.

The Tribunal, in assessing whether the employer unfavourably treated the accountant, compared the treatment of other employees who had had been required to take an extended period off work because of non-work-related injury or illness. The Tribunal found three such employees and found that the accountant was treated less favourably that the three. They were not subjected to the same number of management and human resources meetings held with the accountant. They were not presented with an option of resignation while in hospital. They were not pressured to take unpaid leave. They were not offered a salary package or pressured to take a package and resign. Thus, the accountant was treated differently from other employees and, their treatment of her was not sanctioned by their own code of conduct or rules.

The Respondent put a sign at her work station on a white board that she was “quarantined” without bothering to find out if her condition was contagious. The Respondent did not bother to confirm with their company doctors whether the accountant was contagious or whether she as fit for work when she returned. The unfair treatment of the accountant was due to her disability. She was awarded salary for the period of unpaid leave she was pressured to take in the amount of $14,000. She was awarded $10,000 for non-economic loss.

Are you being pressured to resign from work because you have been ill or disabled? Are you pressured to take unpaid leave? Do you feel that you are unfavourably treated because of your illness or injury? Speak with any of the Discrimination Lawyers at MKI Legal. We are happy to help.

Think the redundancy isn’t genuine? Feel like challenging it? Consult a redundancy lawyer

So as not to be found unfair, harsh, unjust, or unreasonable, a dismissal due to redundancy must comply with the following requirements: • It must be genuine. • There must be consultation prior to implementing the redundancy. • There must be an effort to redeploy the employees who are made redundant. • Redundancy entitlements must be paid to them.

In the case of Paul Williams &Ors v. Staples Australia Pty Ltd [2017] FWC 607 (3 February 2017), twelve warehouse workers were made redundant by their employer, a supplier of office products. Of the twelve employees, only four challenged their dismissal as being unjust, harsh and unreasonable.

They questioned the genuineness of the redundancy; they questioned the genuineness of the consultation; they questioned that lack of sincere effort to redeploy them. The office supply company questioned the jurisdiction of the Fair Work Commission and its power to hear and decide the claim. It also claimed that it had to cut back the number of workers because the worksite was operating over its budget. It had overshot its budget by $1,000,000 in the last year. Thus, met the workers. The office supply company said that 60% of the overhead expenses at the worksite was due to employee salaries. Thus, to stay within budget, some positions were to be terminated. A day after the meeting, the office supply company had chosen 12 employees. These 12 employees were terminated due to redundancy and they received their entitlements. Four of those employees questioned their dismissal. They presented evidence that for two years prior to the redundancy, the office supply company went under budget. They presented photographs of banners announcing that the operations were so efficient, they stayed well below their budget.

They also presented evidence that there were no real criteria for determining whom to make redundant. One employee was told that she was going to be made redundant because she had an attitude problem toward management. The employee was a union delegate. Naturally, as a union representative, she represented union members who may be afraid to speak with management. There was also evidence that although the positions would be made redundant, some of the duties and roles of the redundant positions would be given to others. Lastly, the four employees were not given the opportunity to explore options such as redeployment in other roles or functions or redeployment in other worksites owned by the company. There existed an enterprise agreement in the workplace that required genuine consultation to be made prior to the implementation of the redundancy.

The Fair Work Commission has the power to consider the merits of the application and to decide whether the dismissal was a case of genuine redundancy. There is a genuine redundancy when the employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and the employer complied with its obligations in a modern award or an enterprise agreement.

The FWC found that no genuine consultation was made, instead, the office supply company announced that it had decided to make some employees redundant. Meaning, a decision had already been made to declare some positions redundant. The employer did not invite the employees to give their views on the proposed redundancy because it had already decided to implement the redundancy. This is a breach of the enterprise agreement. The very next day after the announcement, the office supply company already had a list of twelve names. This list was compiled hastily, and it did not examine potential redeployment opportunities at other business units of the employer that operated in the same worksite. It simply concluded that the warehouse employees were not fit to work in positions in other units or departments of the employer’s business. The dismissal was thus, harsh, unjust and unreasonable. There was no valid reason for the dismissal relating to the employee’s capacity or conduct. Their dismissal was for redundancy but their selection for redundancy was based on their capacity or conduct. The process of the employer to restructure the operations in the warehouse was so severely flawed that it was unreasonable. Thus, the FWC ruled that the dismissal was not for a genuine redundancy and was harsh, unreasonable and unjust.

The FWC also ordered the reinstatement of the applicants as the failure of the employer to comply with consultation obligations was not minor or inconsequential. There were reasonable prospects of redeployment into positions within the company. There was no evidence that the employment relationships had deteriorated, and the workers had unblemished work records. Is your employer making your position redundant? And you don’t think that the redundancy is genuine? Do you feel like challenging it and you want to know if you have sufficient grounds to challenge your dismissal? Call the redundancy lawyers at MKI Legal. We are willing to help you.

Were you forced to resign because of your employer’s behaviour?

An employee is dismissed when he or she is informed of the dismissal. However, in certain cases, an employee may resign because of some act or behaviour of the employer that caused the employee distress. Although the termination of the employee was through resignation of the employee, the law still considers it a dismissal at the initiative of the employer because the resignation was “forced” by altered conditions at work.

When the resignation was made under emotional distress and with the employee not even knowing why she was being investigated for misconduct, the employer cannot reasonably accept the resignation as voluntary. Thus, if the employee were to rescind or take back her resignation, the employer cannot claim that it had accepted the resignation. This is illustrated by the case of Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074 (9 March 2018).

An Assistant Nurse was employed at an Aged Care facility. She was a 55-year old refugee who had limited English skills. Whilst at work on 13 November 2016, a co-employee secretly recorded her on his mobile phone. The video showed the Assistant Nurse bantering with a resident. The video went on to show that the Assistant Nurse conversed with another nurse where they laughed at the death of two residents which occurred just before their shift. It also showed that while residents rang for them, the Assistant Nurses continued drinking tea, and ignored the residents’ calls.

She was called into a meeting a couple of days later. She was not told what was wrong or if she were in trouble. She was visibly distressed and crying. She was escorted off the premises. While she sat on the footpath outside her workplace, she remembered that she had been offered a six-pack of beer by a resident and she could have been accused of stealing it. She feared being terminated for stealing. She drafted a resignation letter with the help of a co-employee.

She went back inside her workplace and handed in her resignation. Her boss did not accept the resignation letter. She was then called to another meeting to investigate the allegations of misconduct against her which would be conducted a few hours later. She was distressed and crying. Before the meeting commenced, she told her boss that she did not want to participate in the investigation. Her boss told her that if she put in her resignation letter that her resignation was effective after 4 weeks then she would not need to participate in the investigation.

The next day, the assistant nurse received a letter confirming her resignation. She went back to work and wanted to take back her resignation. Her boss told her that he had accepted her resignation and she was no longer an employee. She filed an unfair dismissal claim. She was not shown the video and she was not provided with a letter telling her what misconduct she committed.

Although the employer did not do any overt act of dismissal, the resignation of the employee was forced because of the behaviour of the employer, thus, the termination of the employment can still be considered as having been done at the initiative of the employer.

The resignation of the assistant nurse was made in the “heat of the moment” when she thought she was accused of having stolen beer. At the meeting, she was upset and so the employer could not have reasonably inferred from the circumstances that the employee’s resignation was voluntary. The employee was clearly in emotional distress at that time. Thus, her resignation was legally ineffective. The assistant nurse was reinstated to her former position and awarded back pay.

Has your employer acted to frustrate your contract of employment? Were you forced to resign because of your employer’s behaviour? Do you want to know if your resignation can be considered as “forced” and thus, the termination of your employer could be considered as a “constructive dismissal?” If you wish to know more, call and speak with any of the Unfair Dismissal lawyers at MKI Legal. We can help you make sense of this.