Lessons to be learnt from the unfair dismissal cases so far
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Lessons to be learnt from the unfair dismissal cases so far
There have been numerous decisions issued by Fair Work Australia (FWA) since the advent of the Fair Work Act. These decisions indicate that FWA will not necessarily deal with matters in the same way as the Australian Industrial Relations Commission. We have noticed particular themes in FWA’s decisions and set out for you below summaries of some of the more interesting judgments and the trends they indicate.
1. FWA is making it harder to lodge an unfair dismissal application out of time
In Robert Lim v Downer EDI Mining [2009] FWA 457 (2 October 2009), Commissioner Williams rejected an application made two days outside the 14 day time limit for lodging an application for unfair dismissal, noting the “conscious decision by parliament” to reduce the statutory time limit by seven days.
Commissioner Williams also noted that section 349(3) of the Fair Work Act 2009 (FW Act) provides that FWA may allow a further period for an unfair dismissal application to be made if it is satisfied that there are “exceptional circumstances”, a term which did not appear in the Workplace Relations Act 1996 (WR Act) and suggests a stricter test now exists.
In this case, the employee argued that exceptional circumstances warranted FWA granting an extension because of factors such as that he was:
- from the Philippines and engaged on a 457 visa;
- unaware of his right to make the application until he sought assistance from the Philippines Consulate the day before the application was ultimately lodged;
- not a union member and did not have legal representation; and
- more likely to suffer prejudice if the application was rejected because he would be deported.
Notwithstanding the arguments outlined above, Commissioner Williams found that the circumstances of the case were not exceptional and the extension of time was not allowed.
In a subsequent case, Bernadette Shield v Warringarri Aboriginal Corporation [2009] FWA 860 (29 October 2009), Senior Deputy President Kaufman said he would go further than Commissioner Williams stating that “in my view, the test is stricter than it was under the WR Act”.
2. It is more difficult to have legal representation in matters before FWA
The case of Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Limited [2009] FWA 572 (9 October 2009) indicates that it will now be harder to be represented by a lawyer or paid agent at a hearing before FWA.
Under section 596(1) of the FW Act a person may be represented in a matter before FWA only with the permission of FWA. Such permission may be granted only if:
a. it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
c. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
In this case, Commissioner Harrison refused permission for a law firm to represent the employer in the unfair dismissal proceedings, noting the following reasons:
- the Construction, Forestry, Mining and Energy Union had objected to the solicitors acting for the employer;
- the intent of the Parliament (noted in the Explanatory Memorandum to the FW Act) that FWA operate efficiently and informally and, where appropriate, in a non-adversarial manner. Also the Parliament’s intention that “persons dealing with FWA would generally represent themselves”;
- the HR-ER Manager of the employer, who would otherwise represent the employer, was an experienced industrial advocate; and
- the matter was not one which required forensic cross-examination or was of a complex nature.
4. Minimum employment period ends at midnight
In Brian Prigge v Manheim Fowles Pty Limited [2010] FWA 28 (7 January 2010) Senior Deputy President Richards clarified the meaning of “6 months” for the purposes of the minimum employment period found in section 383 of the FW Act. Under the FW Act an employee does not have access to an unfair dismissal remedy if they have not completed the minimum employment period.
In this case, the employee commenced employment on 26 February 2009 and was terminated at 9.00am on 25 August 2009. The employee argued that at the time his employment was terminated he had completed the minimum period of employment, being 6 months in the circumstances.
Senior Deputy President Richards relied on a former decision of the Full Bench of the Australian Industrial Relations Commission in finding that the minimum employment period must be completed “immediately before the beginning of the corresponding day of the sixth month” following the date on which the employee’s employment commenced. In this case this was to be by midnight on 25 August 2009.
Accordingly, the employee had not completed the minimum employment period at 9.00am on 25 August 2009 and did not have access to an unfair dismissal remedy under the FW Act.
5. FWA is scrutinising employer behaviour in accordance with the FW Act
The cases of David Quattrocchi v Monsato Australia Limited [2009] FWA 882 (12 November 2009) and Adam James Harley v Aristocrat Technologies Australia Pty Limited [2010] FWA 62 (7 January 2010) remind employers to conduct performance management and termination procedures in a manner that does not fall foul of the criteria set out in the FW Act for determining whether a dismissal has been unfair.
The Commissioner in each of these cases scrutinised the behaviour of the employer under the following criteria for considering harshness, found in section 387 of the FW Act:
a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
d. any unreasonable refusal by the employer to allow the person to have a support person present to assist any discussions relating to dismissal;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
f. the degree to which the size of the employer enterprise would be likely to impact on the procedures in effecting the dismissal;
g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h. any other matters that FWA considers relevant.
In Quattrocchi, although Commission Lewin considered that features of the process which lead to the termination of the employee were “somewhat lacking”, he held that the limitations in the manner and process by which the termination occurred did not ultimately give rise to a conclusion that the termination was harsh, unjust or unreasonable.
In examining the employer’s behaviour against the above criteria in Harley, Commissioner Deegan noted that the employer was a multinational company that has no excuses for the deficiencies in procedure which accompanied the constructive dismissal of the employee. She also found it “beyond belief” that the employer’s HR manager notified senior management that the employee’s claims that he was being bullied and harassed were unsubstantiated, despite having interviewed no-one about those claims. Commissioner Deegan ordered the employer to pay the employee the maximum 6 months’ compensation as reinstatement was found to be inappropriate.