What are workers rights? The Fair Work Act 2009. (Cth) has been in effect since January 2010. This Act is applicable to all Australian workplaces. It regulates the employer-employee relationship and stipulates all workers’ rights. This legislation contains the National Employment Standards (NES). These provisions provide general protections, including the rights of casual, full-time and part-time workers, as well as unfair dismissal provisions.

Contracts of Employment and the NES

Employers must provide minimum employment rights to their employees under the National Employment Standards (NES). These are the NES:

• Maximum weekly hours of work
• Public holiday and leave pay entitlements
• Flexible working arrangements
• Fair Work Information Statements;
• Notice of termination and redundancy payment

The NES provides a safety net for employees, and provides a range of worker rights. The NES ensures that employees have the right to work and maintain minimum work conditions. No matter if an employee is working full-time, casually or part-time. Casual employees are not eligible for certain NES benefits.

A contract of employment between an employee and employer does not replace the minimum worker’s rights and entitlements in Australia. A contract cannot be drafted out of law or if an entitlement is less than or exempts the NES.

Take, for example. A full-time employee may agree in their employment contract to receive only five days of personal/Carer leave per year. Despite what the contract may say, that employee still has the right to 10 days personal/Carer leave.

The NES states that a full-time employee has the right to 10 days of paid personal/carer leave each year. If the employment contract provides more benefits or terms for an employee, it is a valid right. These terms and entitlements can be enforced as they exceed the minimum worker’s rights established by the NES.

Is Your Boss Great, But Not Providing You With Entitlements?

We receive a lot of calls about great bosses, but he won’t give me any time off. He does not pay overtime. They won’t tell you how many holidays I am owed and I haven’t taken a vacation in years. He’s great and he’s ripping off you. He is getting the benefit. You have the right to do what is right.

Full-Time employees have rights

Permanent full-time employees are hired on a permanent basis pursuant to an ongoing employment contract. The NES provides the following minimum conditions for permanent full-time employees:

• Maximum 38 hours per week. An employer may request that employees work more hours, but only if it is reasonable.
• If the employee is full-time, they have the right to request flexible work arrangements. You are either a parent, or someone responsible for the care and education of young children. Carer is someone who has a disability, is 55 years old or has been victim to violence by a family member. (Or providing support or care to a family member or immediate family member who is experiencing violence).
• Paid annual leave of 4 weeks each year
• Unpaid parental leave up to 12 month and the right to ask for unpaid parental leaves for an additional 12 months. A full-time employee must be employed for 12 months. You are or will be responsible for a child.
• Paid personal/carer leave up to 10 days per annum, two days unpaid caregiver’s leave, and as many days as necessary compassionate leave

Written notice

• In the event that an employee’s employment ends, their employer must give written notice. If an exception applies, the employer may give written notice of the day of termination, for example, if the employee’s misconduct was serious. The employer is not required to give notice to the employee.
• Employers are required to give employees a minimum amount of notice under the NES. Or, pay a notice payment instead of the employee working out the notice period. The length of time the employee has worked for an employer will determine the amount of notice.
• An employee who has served more than one year with their employer. An employee has the right to at least one week notice from their employer. An alternative to giving notice from the employer is to pay the employee one week’s salary.
• The NES provides that an employee who has served two years continuously with their employer and is 45 years old or older, can be entitled to an extra week of notice. Notably, if the employee’s employment contract contains notice arrangements that are better than the minimum required by the NES then these arrangements will normally apply.

Employers Obligations

If your employer knowingly defrauds you of your wages or entitlements, it is a crime. If you are not paid according to the NES or the award system, the authorities will take it seriously.

Redundancy entitlements

• if an employer has made an employee’s employment position redundant. Redundancy pay may be available to full-time employees under the NES. In some isntances redundancy pay can be paid up to 16 weeks depending on how long the employee has been employed by their employer.
• Redundancy pay under the NES is not available in all cases. Redundancy pay is not available to employees who work for a small business employer, as such they do not have the right to it. It is vital to check the employee’s contract for entitlements to redundancy pay.
• An employee must receive a copy the Fair Work Information Statement upon starting employment with an employer.
• This statement includes information about the NES and modern awards, agreement-making, rights and benefits for employees, as well as the roles of Fair Work Ombudsman and Fair Work Commission.

Your Part-Time Employees’ Rights

Part-time employees can also be employed on a regular basis but work less than 38 hours per week. All part-time employees have the same rights and conditions as full-time employees, but their entitlements are usually pro-rated according to how many hours they work each week.

A part-time employee still has the right to four weeks of annual vacation per year under the NES. However, this entitlement is based on the number of hours worked each week. If a part-time employee works 20 hour per week, the annual leave payment will be calculated based on a 20-hour work week and not a 38-hour week.

The Rights of Casual Employees

Casual employees are not guaranteed hours of work and are paid per shift. They do not receive paid leave entitlements for time off work, notice of termination, or any other payments or redundancy compensation.

Casual employees get paid per hour and are compensated based on how many hours they have worked in a week. A casual employee cannot be guaranteed a certain number of hours per week, as an employee on a permanent basis.

Casual employees receive a higher hourly wage because of the nature of casual work. This is called a casual loading. This loading replaces some benefits that part-time and full-time employees receive from their employer. These include paid annual and personal/carer leave, notice to terminate and compensation for any loss of security in their employment.

Some employees are happy to work for no pay. They are willing to help. Your employer is legally bound to pay you correctly. This article has shown that the employer and employee cannot communicate about this. The employer is responsible for this.

Minimum Conditions For Casual Employees

Below are the minimum conditions for casual employees.

• To work less than 38 hours per week and to only work reasonable hours when it is possible.
• Casual employees are entitled to two days of unpaid caregiver’s leave and two days unpaid compassionate leaves are required. – renewed on your anniversary year.
• Unpaid leave for community service
• To be absent from work on public holidays. The casual employee will not be paid if they do not work the public holiday.
• Unpaid parental leave rights and the right to request flexible work arrangements. They have been working for their employer for at least 12 months on a consistent and systematic basis, with the expectation of continuing employment.

Unfair Dismissal

The Act also guarantees fair working conditions and protections for all employees . Workers are protected from unfair dismissal. Permanent employees who feel they were unfairly dismissed can file a claim for unfair dismissal.

If they have been employed by their employer for less than six months, or if their employer qualifies as a Small Business employer. An employer with less than 15 employees is a Small Business Employee for a 12-month period. Employees must also earn less than the threshold for high income or be covered under a modern award, or enterprise agreement.

If casual workers were regularly employed and had a reasonable expectation of continuing work, they can also file a claim for unfair dismissal.

Unfair dismissal applications must be filed within 21 calendar days of the date that the dismissal became effective. If the Commission considers that there were exceptional circumstances, late filing may be allowed. A dismissed employee who files outside of the 21-day deadline will be required to explain the extraordinary circumstances that led to them not filing within the prescribed time.

General Protections

Workers are also protected from adverse action under the General Protections provisions of the Act. Because of a workplace rights, employers are forbidden from taking adverse action against employees. Because they have exercised their workplace right. Participating in industrial activities protects you from discriminatory treatment that is based on protected attributes or sham arrangements. Dismissal can be one of the adverse actions.

It also includes other actions, such as discriminating against employees, prejudicing them, injuring them in their employment, or prejudicing them.

Although there are no specific criteria for unfair dismissal, employees have to link the exercise of a workplace rights and adverse action. The workplace right (i.e. the adverse action) must have been exercised. complaint).

Are you unsure what to do? What are my rights? Get advice

Placing undue influence (coercion)

Workers have protection against their employer coercing or pressing them to take a certain action.

All applications for general protections must filed within 21 days of the date that the dismissal became effective. If the Commission considers that there have been exceptional circumstances, late filing may be allowed. A dismissed employee who files outside of the 21-day deadline will be required to explain the extraordinary circumstances that led to them not filing within the prescribed time.

Discrimination at Work

The workplace must provide protection from discrimination. Employers cannot discriminate against employees based on their race, colour, gender, sexual orientation, age or physical disability. Also marital status, family and Carer responsibilities, pregnancy.

Bullying in the Workplace

Employees are protected against being bullied or harassed at work as part of their workers’ rights. Employees can apply to the Act for bullying prevention if they are bullied at work. Bullying must be stopped by unreasonable and repeated management actions.

Overall: What are workers rights? 

When it comes to workers’ rights, these are based on individual circumstances and depend on the term and employment type in which you have been employed. It is important to also consider that a right that is important to one employee may not be important to another. Are you looking for confidential and free advice on your workplace situation? Do you have questions about filing a claim? What are workers’ rights? Call today to find out.

For support or assistance regarding your individual circumstances, get in touch with our team for a confidential and free consultation.

Resources & Guides for Employees

• Unfair Dismissal Victoria – Find everything you need to know about Unfair Dismissal in Victoria.
• General Protections Victoria – When it comes to General Protections this is your definitive guide.
• Workplace Advice Victoria – Offering leading advice, take a look at how we support employees.
• Constructive Dismissal Victoria – Forced to resign? Have you fallen victim to constructive dismissal and/or constructive bullying?

The post What are workers rights? appeared first on AWDR.

However, some employers’ may be sneaky and try to label alleged conduct as serious misconduct in order to avoid paying out certain employee entitlements or to avoid paying out a redundancy. This begs the question, does an employees conduct or reason for their termination really deserve the label “serious misconduct”?

How to I determine if my conduct serious misconduct?

Fair Work Regulation 1.07 defines serious misconduct as conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. This conduct may also be conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability, or profitability of the employer’s business. Examples of serious misconduct includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions.

When will my conduct constitute serious misconduct and meet this high bar to warrant summary dismissal? Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’.^[1] The standard of proof for serious misconduct remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’^[2] and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’^[3]

Is your alleged conduct an isolated incident or a single mistake in which your dismissal would be arguably harsh? Are you even guilty of this alleged misconduct or do you have a justifiable defence for the allegations against you? If the alleged misconduct was an isolated incident in an otherwise faultless career, you may be eligible to lodge an unfair dismissal claim as your termination may be considered harsh in the circumstances.^[4] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.^[5]

Serious Misconduct Fair Work

We provide examples of serious misconduct and Fair Work case examples.

Michelle Rawson v Mudgee Golf Club Ltd

In Michelle Rawson v Mudgee Golf Club Ltd,^[6] the applicant was summarily dismissed for serious misconduct involving three primary incidents which involved, a threat to stab a fellow employee, alleged disrespectful behaviour towards a fellow employee and an allegation that the applicant had attempted to delete the employer’s Facebook account.

Upon careful analysis, the employer’s findings of serious misconduct were confirmed. The misconduct of the applicant which involved her unreasonable and aggressive workplace behaviour combined with conduct that intentionally sought to damage the business operation of the employer, was held to be misconduct that was plainly inconsistent with the continuation of employment, and it established valid reason for the dismissal of the applicant.^[7]

However, the valid reason for dismissal was assessed by the Commission and evaluated against significant procedural errors which were evident in the manner that the employer determined and implemented the dismissal of the applicant.^[8] Commissioner Cambridge held that although the applicant was dismissed for valid reason involving her serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the applicant have rendered the summary dismissal to have been harsh and unreasonable. The applicant’s dismissal had been found to have been unfair in this instance.^[9]

Scott Tracey v BP Refinery (Kwinana) Pty Ltd

In Scott Tracey v BP Refinery (Kwinana) Pty Ltd,^[10] a BP Kwinana Refinery employee who, in September 2018, created a video using scenes from the German-language film Downfall, adding subtitles which referenced details known to those participating in negotiations for the refinery’s new agreement. The employee was terminated, and the original decision found the video was “offensive an inappropriate”. On appeal, the Full Bench found there was no valid reason for dismissal as it did not consider the video to be offensive or inappropriate in the circumstances.^[11] The Full Bench took into account the employee’s unblemished work history, the industrial environment in which the conduct occurred, the employee’s contrition and the significant financial hardship on the employee’s family.

These cases illustrate that although your employer may allege that your conduct constitutes serious misconduct and is worthy of summarily dismissal, your dismissal may still be harsh, unjust or unreasonable due to a myriad of mitigating factors.

Employer’s Avoiding Paying Notice on Termination

When an employee is terminated on the grounds of serious misconduct, the employer doesn’t have to provide any notice of termination. Thus, by labelling the reason for termination as serious misconduct, an employer does not have to pay the employee in lieu of notice. The minimum entitlement to notice period is stipulated under the NES standards.^[12] Your employment contract may stipulate a notice period greater than the NES Minimum but nevertheless, this is not payable upon termination for serious misconduct.

However, the employer does have to pay the employee all outstanding entitlements such as payment for time worked, annual leave and sometimes long service leave (depending on your state or territory), regardless of the reason for termination. Please note this is only a guide and the Fair Work Commission does not deal with entitlement related matters. For detailed knowledge regarding your final pay out, please contact the Fair Work Ombudsman.

Long Service Leave and Serious Misconduct

A common component of an employee’s termination pay is long service leave, if it is applicable. However, state specific legislation dictates that if an employee is terminated for serious misconduct, long service leave can be withheld and not paid out to the employee on termination. All states except Victoria withhold any pro-rata long service leave entitlement if the employee has been dismissed for serious misconduct prior to reaching the period of service when they are able to take the leave. To find out your long service leave entitlements in your particular state, please consult the State specific legislation or the Fair Work Ombudsman.

Resources & Guides for Employees

• Unfair Dismissal Victoria – Find everything you need to know about Unfair Dismissal in Victoria.
• General Protections Victoria – When it comes to General Protections this is your definitive guide.
• Workplace Advice Victoria – Offering leading advice, take a look at how we support employees.
• Constructive Dismissal Victoria – Forced to resign? Have you fallen victim to constructive dismissal and/or constructive bullying?

References

^[1] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]; cited in Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

^[2] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336].

^[3] Ibid., [(1938) 60 CLR 336] at pp. 362‒3].

^[4] Gasz v Mobil Refinery Australia Pty Ltd (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005), [17]; Streeter v Telstra Corporation Limited [(2008) 170 IR 1]; [2008] AIRCFB 15, [27].

^[5] Potter v WorkCover Corporation, PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. See also Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

^[6] [2021] FWC 1171.

^[7] Ibid at [87].

^[8] Michelle Rawson v Mudgee Golf Club Ltd [2021] FWC 1171 at [87].

^[9] Ibid at [89].

^[10] [2019] FWC 4113.

^[11] Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 6388.

^[12] See Fact Sheet – Workplace Entitlements: Notice of Termination and Redundancy Pay.

The post Is my employer robbing me of my entitlements? appeared first on AWDR.

The search Intent of Australians Around the Terms ‘Australia’ and ‘Fair Work’

In the context of industrial relations, Google search data shows that the word “Australia” is used when researching workplace relations advice. For instance, Sexual Harassment Australia is googled more frequently than sexual harassment generally. Interestingly, Fair Work Australia is googled more frequently than the Fair Work Commission, Australia’s national workplace tribunal. Fair Work Australia was established in 2009 and replaced the Australian Industrial Relations Commission (AIRC) following the introduction of the Fair Work Act 2009 (Cth) (FW Act). In 2013, Fair Work Australia was renamed the Fair Work Commission, yet people still prefer to search Fair Work Australia.

This data raises an interesting point about our trust in the Australian government. If Australia was googled at the end of these phrases so that people could inform themselves on Australian laws regarding fair work and sexual harassment, the word laws would also be frequently typed in. It is not. It is clear people are trying to find government publications and information regarding these two topics as they trust the government’s advice. We trust the Australian Government with ensuring we have adequate workplace rights and protections. We trust the Australian Government to provide our families and children with education. People trust the Australian Government to provide us with health care when we are sick or in deed. Yet, recent times have demonstrated a minority have a serious distrust in government regarding the COVID-19 pandemic and vaccines.

Small Minority of Employees in Victoria Facing “No Vaccine No Job”

No vaccine no job? Is it legal for your employer in Victoria to force you to be vaccinated against COVID? Questions searched my those that are not vaccinated in Victoria

With over 90% of the eligible population double vaccinated, there is a small minority refusing to be vaccinated for various beliefs. Some beliefs are due to cultural and religious regions, other due to the vaccine itself. Consequently, many unvaccinated Australians have lost their job. We are now relying on the Australian Government for financial assistance through Centrelink.

We rely on the Australian Government for so many different reasons, yet a percentage of the population only trust the Government when it suits them. The anti-lockdown and anti-mandate protests across the country feature thousands of Australian flags being proudly waived, yet it’s the Australian government they do not trust. A government that has made Australia the country it is today. Similar behaviour is observed in the US where citizens protest against the government, waiving the American flag and having it fly on a flag pole in the front of their house. We trust and respect our governments in war and crisis, fighting for our countries and selflessly risking our lives yet when we are asked to be vaccinated for the benefit of the whole world, we suddenly do not trust the government.

We suddenly believe there is a global conspiracy regarding the pandemic and vaccinations yet it is evident all our governments are trying to do is protect the health and safety of their citizens.

The Australian Government Has Spent Billions

The COVID-19 pandemic has caused havoc across the globe and left many people and countries in serious financial hardship. Whilst we have experienced a degree of financial hardship here, we have been amongst the lucky few countries with billions of dollars being handed out by our government. When businesses were shut down, the Australian Government provided JobKeeper payments to keep people employed and help business stay afloat. When people had to isolate due to being COVID-19 positive or whilst waiting for test results, the Australian Government handed out isolation payments. They did this to assist people in staying home and minimising the spread of COVID-19. Very few countries provided this much financial support to their citizens during the pandemic. However, a minority right here in our country still do not trust the Australian Government.

COVID-19 vaccines have been labelled as our ticket out of lockdown and to stay out of lockdown. We have been provided with free vaccine doses and free PCR tests. In addition, more recently free rapid antigen tests, if you are a Medicare card holder. Several countries across the globe still have to pay for testing. Many receive no financial assistant from their government whilst they wait for their results. Despite this assistance, there is a percentage of the population that are rebelling.

Do You Need Support with a General Protections or Unfair Dismissal Claim?

Whilst many workplaces across Australia have already began mandating employees be vaccinated based on Government advice, you still have rights. When it comes to the Fair Work Act in general, you still have certain rights and your employer must comply with the provisions for unfair dismissal and general protections as set out in the Act. Whilst in most instances your employer may have reasonable grounds to mandate employees be vaccinated, employees are still protected within the provisions of the Fair Work Act. As an employee who has been unfairly dismissed you need to consider whether it was harsh, unjust, and most importantly, unreasonable. Likewise, employees do have general protections against bullying, harassment, and discrimination just to name a few.

Not sure where you stand? Have you been stood down unreasonably as a result or not having the COVID vaccine? Whatever your question, we offer expert workplace advice and support to employees only. Our Workplace Advisors will assess if you have a claim for general protections or unfair dismissal. Contact us today on 1800 333 666 for a confidential and free consultation.

Useful References

• Unfair Dismissal Victoria
• General Protections Victoria
• Workplace Advice Victoria
• Constructive Dismissal Victoria
• Workplace Vaccination Policies
• Fair Work: COVID and Australian Workplace Laws

The post Mandatory COVID-19 Vaccine at Work: Do we trust the Government? appeared first on AWDR.

It is crucial to understand the difference between an Unfair Dismissal Application and a General Protections Application. 

If an employee is fired and wants to file a claim against their employer, they will see that there are two forms they can submit to the Fair Work Commission. It is important that when an employee is looking to lodge a claim against their employer, that they understand the difference. Failure to understand the difference or lodging the incorrect application could result in you not receiving the best outcome.

These are unfair dismissal applications (F2 Application) and general protectives applications involving dismissal (F8 Application). You may now be wondering what the differences are between these claims. Which claim should you file?

These claims can both involve the dismissal of an employee, however they are different and require very different criteria. Depending on the circumstances surrounding your dismissal or unfair treatment you may be able to put forward an application for one or either. However, as mentioned above you need to ensure you are choosing the right form.

To ensure you can make the best informed decision contact our team for an obligation free and confidential consultation to discuss your options.  

The Difference

Below, we explain the difference between an Unfair Dismissal & General Protections claim, along with the criteria for lodging these.

Unfair Dismissal Claims

Outline below are some considerations that each employee needs to understand when determining whether or not an application for Unfair Dismissal can be put forward to the Fair Work Commission.

Jurisdictional Criteria

Unfair Dismissal Claims have jurisdictional criteria an employee must meet before they can be eligible for a remedy under Fair Work Act 2009. (Cth). First, the employee must have been fired. In the Fair Work Act 2009(Cth), the term “dismissed” is defined as when an employee’s employment was terminated by the employer or the person was forced to resign because of the conduct of the employer.

Employed on a Regular Systematic Basis

In order to lodge an unfair dismissal claim you must be employed on a regular, systematic basis (for casuals), and not be a contractor. The person lodging the application or putting forward a claim must not be deemed an employee hired for a specific period, task or seasonal contract (For example, a Christmas Contract) and was dismissed / terminated at the agreed end date.

Minimum Employment Term & Small Business

The third requirement is that the employee needs to have completed the minimum employment period. This means the employee must have served six months continuous service in a large company or one year continuous service in a small business. A small business is defined as a business with fewer than 15 employees. This includes casual employees who are employed on a regular basis and are not working in a systematic manner. Read more about the small business dismissal code.

Unfair Dismissal Salary Threshold

The employee must also earn less than the high income threshold, which is currently $158,500 per year, or be covered by a modern award/enterprise agreement. 

21 Days To Lodge

The employee must file a claim within 21 days after their dismissal. This deadline is strictly enforced and any claims filed after the effective date of dismissal will not be accepted unless there are exceptional circumstances.

General Protection Claims

General Protection Claims, however, do not have such a long list of criteria as an unfair dismissal application does. To be eligible for a General Protections Claim, an employer must have been fired. This is the same test that applies to unfair dismissal claims. Second, an employee must file their claim within 21 calendar days of the date that their dismissal takes effect. This 21 day requirement is the same as when lodging unfair dismissal claims.

Fair Work General Protections Provisions

The general protections provisions provide greater protection for employees. They also protect prospective employees, independent contractors (including potential independent contractors), an individual (the principal), who has entered into a service contract with an independent contractor (including the principal who intends to enter into such a contract), as well as an industrial association (including any officer or member thereof). A high income threshold, or requirement to award or enter into an enterprise agreement, is not required. There is no minimum employment period.

General Protections Claim For Those Ineligible For An Unfair Dismissal Claim

Despite less jurisdictional criteria for a General Protections claim, lodging this application is not a constellation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal due to not meeting the requirements, you cannot automatically lodge a General Protections claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth), as discussed below.

Unfair Dismissal Regime and General Protects Provisions – What makes these claims so different?

The Fair Work Act 2009 (Cth) provides protection to employees against unfair dismissal. If the Fair Work Commission finds that the dismissal of an employee was unjust, harsh, or unreasonable, is not consistent with the Small Business Fair Dismissal Code (in case of small-business employers) ,and is not a case for genuine redundancy (if any) then this could be grounds for unfair dimissal.

Below are some of the points the Fair Work Commission in Australia will assess when determining if a dismissal was unjust, harsh or unreasonable.

• Whether there was a valid reason to terminate the employment relationship that relates directly to the employee’s capacity or conduct.
• If the reason was given to the employee.
• Whether the employee was allowed to respond.
• Whether the employer refused to permit a support person to attend any termination discussion.
• If the reason for termination was unsatisfactory performance, whether the employee was warned.
• The extent to which the employer’s business would likely influence the termination procedures.
• The extent to which the absence or incompetent expertise of Human Resource Managers would likely impact the termination procedures; and
• Any other matter that the Commission considers important.

The Unfair Dismissal System & General Protections

The unfair dismissal system, in summary, looks at whether the employee deserved to be fired. It also looks at whether the employee ever received warnings, what the process was in maintaining procedural fairness in the workplace.

Employees who meet the jurisdictional criteria, are protected from unfair dismissal under the Fair Work Act 2009 (Cth). The unfair dismissal system establishes a framework for dealing with dismissal or termination by balancing the needs of a business (including small business) and the needs of employees. This system also provides a framework for establishing quick, flexible, informal procedures that address both the needs of employees and employers. It also offers remedies in cases where dismissal is deemed unfair with a focus on reinstatement.

The General Protections provisions in Part 3-1 (Cth) of the Fair Work Act 2009(Cth) prohibit employers from adversely acting against employees because of workplace rights or industrial activities. They also protect against discriminatory treatment based on protected attributes or sham arrangements. These claims don’t consider fairness principles regarding termination, such as unfair dismissal claims. The Fair Work Commission’s sole consideration is whether or not an individual has a workplace rights or has exercised one, and whether or not an employer has acted in a negative manner towards an employee because this.

In fact, under the Fair Work Act 2009 (Cth), a person has a workplace right if they are entitled to the benefit of a workplace law or instrument, has a role or responsibility under a workplace law or instrument, is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument.

Under the Fair Work Act 2009 (Cth), adverse action includes dismissal of an employee but encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them. In order to be eligible to lodge a general protections application involving dismissal (F8 Application), the final adverse action by the employer must be termination or dismissal of the employee.

A situation in which an employee could have grounds to file a claim is if they were dismissed following a complaint of bullying or sexual harassment. The employer may not reveal the reason for the termination, but the Fair Work Commission will consider the likelihood that the employee was dismissed due to their complaint.

This is the problem with these applications. The most common reason applicants fail in general protections cases is that they are held to not have established this ” due to causal link. General Protections provisions are extremely narrow. They require that the employee proves the causal link in order to succeed. It is irrelevant, therefore, whether the employee was fired fairly, whether there was a reason or if they were given warnings.

Reverse Obligation

The legislation does however include a reverse obligation in relation to the reasons for taking action.

This means that even though the employee must prove that they had a prescribed ground and that they were subject to adverse action under the legislation, the employer is not required to prove that the employer took the action. The employer must prove that the reason for terminating the employee is legitimate.

Fair Work Commission Procedure and Remedies For Unfair Dismissal

The Fair Work Commission will refer an employee who files an Unfair Dismissal App (Form F2) to the Fair Work Commission . This conference is an informal way to try and resolve one of the disputes. An independent conciliator from Fair Work Commission will help the parties explore options and reach an agreement without the need to have a formal hearing.

These confidential and without prejudice conferences allow employees to ask for various remedies, but the most common is that they will seek:

• Compensation
• To have their termination annulled and for the employer permission to permit them to resign
• Employer to give them a Statement of Service.

Importantly, unfair dismissal claims are subject to a Compensation Cap of 26 weeks or half of the unfair dismissal high income threshold immediately prior to termination.

If there is no agreement between the parties regarding an Unfair Dismissal case, the matter will be automatically transferred to the Fair Work Commission for a hearing or conference. Unless the employee decides to withdraw their application, An arbitration, unlike the conciliation conference is a formal process. It’s similar to a court hearing in which a member decides for the parties what the solution should look like, whether there was unfair dismissal, and the remedy. After the parties have presented their arguments and evidence, this decision will be made. Although a decision at the Fair Work Commission may take several months, it can be an expensive battle.

An employee may be awarded compensation in the event that the Fair Work Commission determines that reinstatement is not appropriate. This form of compensation is intended to compensate employees who are unfairly terminated in lieu of reinstatement for any losses that could reasonably be attributed to the unfair termination. In this way, compensation can’t be given for shock, distress, or humiliation.

The Fair Work Commission will consider the length of employment, the remuneration that the employee would have received or would be likely to receive if they were not terminated, and the efforts of an employee to minimize the loss. This includes looking for alternative work. It will also consider the employee’s earnings from work or other work in the time period between termination and the making of the compensation order. As mentioned, the compensation capis 26 weeks. This is equal to half of the unfair dismissal high income threshold immediately prior to the termination. The Fair Work Commission Member cannot request a Statement of Service. However, anyone can see the decision online.

Fair Work Commission Procedure and Remedies For General Protections Claims

The Fair Work Commission will convene a conference to discuss the general protections request involving dismissal filed by an employee. The procedure is identical to an unfair dismissal case, and the remedies that an employee can seek are almost the same.

They can also seek damages for distress, shock, or humiliation in addition to economic losses resulting from the employee’s termination.

The Court can award any amount of compensation, but there is no limit on how much. However, the court will look at the same factors as an unfair dismissal case (i.e. length of service, the remuneration that the employee would have received or would be likely to receive if they were not terminated, etc.). The Court will consider the employee’s non-economic harm when awarding damages. This includes any medical evidence or doctor’s reports that demonstrate pain and suffering.

If there is no agreement between the parties regarding a General Protections Claim, and the Fair Work Commission feels that all reasonable attempts have failed, the Commission will issue a certificate. Employee’s can make a general protections court request in Federal Court or Federal Circuit courts within 14 calendar days of the date the certificate was issued by the Fair Work Commission.

What happens if the Federal Court or Federal Circuit Court finds a person has contravened or intended to contravene the General Protection provisions? If the court finds that a person has violated or intends to violate the General Protections provisions, either the Federal Court or the Federal Circuit Court may make any order it considers appropriate. The Federal Court and Federal Circuit Court can issue orders to grant an interim or permanent injunction to stop, stop, or remedy contraventions, as well as an order awarding compensation (which may include interest) for losses suffered by a person due to the contravention. The Federal Court and Federal Circuit Court processes can take many years and can cost thousands of dollars.

What Can We Do?

Do you want to file a claim for dismissal but aren’t sure how to proceed? A paid lawyer or agent may be able to provide you with advice and representation. We are an independent Workplace Advisor that can assist you in your unfair dismissal and general protections claims. AWDR have represented over 10,000 clients in these cases. We can draft your claims and applications to the Federal Court standard. We also run conciliation conferences and arbitrate. There are thousands of decisions published across the different jurisdictions. We would be your advocate, but we can also provide advice on the prospects of your case.

The post General Protections vs Unfair Dismissal appeared first on AWDR.

Example of a Fair Work Cases involving swearing

On appeal the Fair Work Commission provided consideration to all aspects of the case of Illawarra Coasl Holdings vs Matthew Gosek in their outcome.

In the Outcome the Commision states, “Having conducted the evaluative judgement that the discretion requires, and based on the findings I have made about the evidence as a whole before the Commission, I do not, on balance, consider the dismissal to have been harsh, unjust or unreasonable. In particular, I do not consider that the mitigating circumstances are so compelling as to render dismissal for what were serious acts of misconduct to be so disproportionate as to be harsh.

Mental illness may explain the misconduct in part, but the consumption of alcohol does not excuse it even if it also partially explains the behaviour.

The misconduct was at the higher end of the scale – involving threats specifically directed to individuals and not simply foul language. It was destructive of working relationships and inconsistent with the policies and values espoused by the employer. It was unwelcome. At the time, and to varying degrees subsequently, it upset and offended the recipients. Its workplace impact was ameliorated by the timely and contrite apologies and the spirit in which those apologies were, for the most part, received and accepted by some of the employees. The other mitigating factors relating to length of service and an unblemished prior record are weighty but on balance do not displace a sound, defensible and well-founded reason for dismissal.”

Can You Be Fired for Swearing?

Yes and no, as it depends on the circumstances. Swearing and the use of bad language is not explicitly considered to be serious misconduct under the Fair Work Act. You need to refer to your internal workplace policies and code of conduct. However, if you have been fired or dismissed, in some circumstances you could file for unfair dismissal. 

There may be instances where swearing in a threatening manner could be reasonable grounds being stood down while your employer completes a workplace investigation. Provided you have been provided with procedural fairness around the investigation, if it is found that your swearing was connected with a threat of assaulting or abusing another employer this could lead you in hot water. In these instances, your behaviour could very well be deemed reasonable grounds for dismissal on the basis of serious misconduct.

Have You Been Unfairly Dismissed or Fired For Swearing?

If you have been unfairly dismissed due to swearing, dependant on the circumstances you may have a claim for unfair dismissal. Contacting our team for workplace advice will enable us to better understand the circumstances around the swearing and how we may be able to assist.

Resources & Guides for Employees

• Unfair Dismissal Victoria – Find everything you need to know about Unfair Dismissal in Victoria.
• General Protections Victoria – When it comes to General Protections this is your definitive guide.
• Workplace Advice Victoria – Offering leading advice, take a look at how we support employees.
• Constructive Dismissal Victoria – Forced to resign? Have you fallen victim to constructive dismissal and/or constructive bullying?

For more help and support contact our team on 1800 333 666.

The post Swearing in the Workplace appeared first on AWDR.

It may have been said to you during a termination, or when your employer threatens your employment. Employers can terminate or dismiss you for serious misconduct. You will not be entitled to your usual entitlements if you leave your job. But what is serious misconduct? We answer your questions around this topic.

If you are wrongly dismissed for serious misconduct, your rights to annual, long-service leave and notice periods will be terminated. In the event that a company is downsizing or restricting, any redundancy payments you might have been due for the alleged serious conduct will also be terminated.

Employers know they can reduce the cost of terminating your employment by stating that it was due to’serious misconduct’. However, this could be wrong and they could unlawfully deprive you of all your rights. This method is often used by employers in difficult times and situations to reduce their wages and lower their payroll.

It is important to determine if your dismissal was due to’serious misconduct’, or simply for misconduct.

What Is the definition of serious misconduct?

An employer may hold an employee to account for serious misconduct in instances where:

• An employee’s wilful or intentional behaviour that is not consistent with the continuation of their employment contract.
• An employee’s conduct poses a serious and imminent danger to:
  • The safety or health of a person.
  • The reputation, viability and profitability of the employer’s company.

The Fair Work Commission decisions make it clear that employers must meet very high standards to prove serious misconduct by employees. Below are just a few examples.

• Theft
• Verbal or physical assault
• Fraud
• Workplace intoxication or abuse of illicit substances
• Blatant disregard for reasonable and lawful orders

Although this is not an exhaustive list, it can give you an idea of whether your misconduct is similar to a common mishap at work or more serious against the employer.

This blog is a result of the incredible number of employees who search this phrase / word in our advertising campaigns. Employers will do whatever is necessary to reduce costs and avoid redundancy in these difficult economic times. If you are disqualified for any reason, it can be a career stumbling block or a barrier to obtaining another job. This needs to be rectified.

Code of Conduct and Serious Misconduct  

The article has been reedited as of 21/12/2021. This is due to the high number of Xmas party season enquires, dismissals, and the fact that this year it seems especially high. I believe that employees are happy to be outside, despite the fact that various states have been released from lockdown. There’s nothing wrong with that. I’m not the fun cop. If you aren’t careful, however, established codes of conduct apply. Sexual harassment, drunkenness, and offensive behaviour can all lead to termination for serious misconduct.

The stress from the pandemic, lockdowns and stress have taken a toll on many people. Managers and supervisors are cranky, lack a sense humor, and in some cases, behavioral issues, jokes, and innuendo that were tolerated in the past are no longer acceptable. Be careful.

Companies, people, and their employees have changed a lot since the COVID lockdown of nearly two years. Some are better than others, while some are worse. Companies are more careful about their spending than ever before. If a company can fire you for serious misconduct it does not need to pay notice. Long service leave is also not available and bonus payments are often void or forfeited.

Can my employer withhold entitlements when sacked for Serious Misconduct?

An employer must pay the employee’s annual leave and long service leave if the employee is not required to work out the notice in almost all cases. Howver, an employer may withhold certain rights, such as the payment in lieu notice and long-term leave, if an employee has been terminated due to serious misconduct. Refer to is my emloyer robbing me of my entitlements to understand more.

Sacked For Serious Misconduct?

If you feel you were sacked unfairly for misconduct contact our team. We are not workplace lawyers, but we are Workplace Advisors providing support to employees in fighting for justice. With no win no pay options available, we will fight your unfair dismissal claim with the reduced financial pressures. We are experts and winning is in our DNA. Call today on 1800 333 666.

Sources: Serious Misconduct – Fair Work Regulations 2009

Article of Interest: Small Business Dismissial Code & Workplace Investigations

The post Workplace: Serious Misconduct appeared first on AWDR.

It’s a question more so asked of late for casual employees coming down with COVID or other respiratory illnesses wanting to know what their options are. In terms of COVID payments for casual employee’s this is varied through different government schemes and worth checking via relevant state and federal bodies. Some employee’s casual or not may also have provisions to receive payments under company COVID leave policies. As such it’s also worth checking with your employer if they have any policies in place for casual employees.

Perhaps you are also wondering, “Does a casual employee need to provide a medical certificate?” Or if you are an employer, “Can you request a medical certificate from a casual employee?” These are common questions that surprisingly have more complex answers than you might think.

In this article, we’ll take a deep dive into what you need to know about sick leave policy. Read on and you’ll be able to determine your eligibility based on your specific circumstances.

Is My Employer Required to Give Me Sick Leave and Carer’s Leave?

This may surprise you, but in most countries including Australia, there is no official legal requirement mandating that companies give their casual employees paid sick leave. However, all casual employees are entitled to take unpaid sick leave for illness.

In addition, the National Employment Standards (NES) has provisions for casual employees to:

• access a pathway to become a permanent employee
• 2 days unpaid carer’s leave and 2 days unpaid compassionate leave per occasion
• 5 days unpaid family and domestic violence leave (in a 12-month period)
• unpaid community service leave.

Other provisions are included within the National Employment Standards to accommodate disabilities or pregnancy. In the case of pregnancy, your company can’t deny you leave if you have a condition related to your pregnancy or if your employer also gives leave for other disabilities, and are required to adhere to the various Discrimination Act’s.

As a casual employee you may also request a Flexible Working Arrangement and take unpaid leave if you have been employed on a regular systematic basis over at least 12 months, and expect to continue being employed by the employer on a regular and systematic basis.

Is My Employer Required to Pay Me for Paid Sick Leave?

At this time, there are no federal requirements mandating any type of paid sick leave for casual workers from employers. Since there is no law requiring this offering, there is no law mandating paid sick leave for casual employees. However, It is true that employers do in fact offer paid sick leave for part time and full time employees in line with the National Employment Standards and local Awards or Enterprise Agreements.

Despite the fact that there is no federal requirement at this time, if your employer doesn’t treat employees consistently when they take leave supported by evidence, for example they way in which they request supporting evidence could risk discrimination. This could also include situations in which the employer does not treat individuals at the same level of contract fairly for illness or carer’s responsibilities. This includes casual and part-time workers.

Can My Employer Keep Records About My Time Off?

Regardless of your employment status, whether it be casual, part time, or fulltime, your employer may keep a record of your supporting evidence, a chronological of instances of sick leave, or set in place support measures.

One example of this is that your employer may require you to call every day you’re off due to illness. They may also ask you to provide medical certificate details, or a certificate of fitness to return to work.

What Should a Sick Leave Policy Include?

As a casual worker, you should be proactive about determining what your company’s sick leave policy outlines for you. The National Employemnt Standards don’t require employers to pay sick leave to casual employees. Here are a few things you’ll need to consider:

Eligibility

Most workplace policies will have provisions that include casual employees not being entitled for sick leave. First and foremost, there will be variability as to whether you will be eligible for unpaid or paid sick leave fpr each class of employment; a casual, part-time, and full-time worker. Most companies will reserve paid sick leave only for part-time and full-time employees. However, in today’s world, some employers may grant sick leave payment for casual employees on mutual agreement or out of goodwill in instances.

Accrual Rate

Casual employee’s won’t generally accrue any sick leave or annual leave. This is why the hourly rate normally comes with a ‘casual loading / penalty’ in addition to the ordinary hours earnt.

Supporting Evidence

Regardless of whether your or casual or not, some employment contracts, awards, and agreements, may have provisions for you to substantiate a leave of absence in the form of a medical certificate, carer’s certificate, or a statutory declaration. It’s worth checking the individual requirements that apply to the organisation you work within.

So, Does A Casual Employee Need To Provide A Medical Certificate?

Let’s dive back into our original question: Does a casual employee need to provide a medical certificate?

Hopefully, it’s now clear that there is no current requirement for your employer to pay you sick leave if you are causal. However, they may require a medical certificate of a certificate of fitness to return to work.

Adverse Action and Casual Employment

In instances, where you have been unfairly dismissed, casual employees or workers are only entitled to an unfair dismissal remedy if their employment is regular and systematic and there is a reasonable expectation of ongoing employment. There may be other options available if you feel your employer has taken adverse action against you. Or if you have been discriminated against. We recently worte an article on getting fired for not having a medical certificate which is worth reading.

Contact our team of Workplace Advisors to discuss the options available to you. We recently wrote an article on

Please note that this is general in nature and does not constitute legal advice

The post Sick Leave and Medical Certificates for Casual Employees appeared first on AWDR.

A probationary employee is one who has not yet completed the qualifying service period necessary to attain permanent status in the company in which they are employed. The probation period typically lasts three to six months, and during that time, the company can in general terms fire the employee without reasons. However, employees still have some fundamental rights which we answer below.

Can you claim unfair dismissal during probation?

Whilst there are options, and employees do have rights under General Protections, there are limitations to putting forward an application to the Fair Work Commission for unfair dismissal.

In order to lodge an unfair dismissal application, the Fair Work Commission requires six months of employment in companies with more than 15 employees, or over 12 months in companies with fewer than 15 employees. Therefore, if you are dismissed during this time, it is unlikely that you will meet the eligibility criteria to lodge an unfair dismissal application.

However, this does not mean that you do not have rights. You are still entitled to pursue your rights through the Fair Work System. Even if ineligible for Unfair Dismissal, you may still be able to pursue a General Protections Application in the Fair work Commission.

Can I put forward a General Protections application?

Yes, you can put forward a claim to the Fair Work Commission under the General Protections provision. However, your claims to to align with the application requirements,

A General Protections application is ultimately a discrimination complaint that an employee may make in the Fair Work Commission. However, in order to make a General Protections application, you must establish that you were subjected to adverse action due to either discrimination, the exercise of a workplace right, or industrial action.

Adverse Action & Discrimination

Adverse action is negative conduct towards an employee, which has occurred directly as a result of discrimination, the exercise of a workplace right, or industrial action. Adverse action may include dismissal, altering your employment, treating you less favourably than your colleagues, or injuring you in your employment.

In Australia, the Fair Work Act 2009 (Cth) protects 13 specific attributes from discrimination. These include:

• Race
• Colour
• Sex
• Sexual orientation
• Age
• Physical or mental disability
• Marital status
• Family or carer’s responsibilities
• Pregnancy
• Religion
• Political opinion
• National extraction
• Social origin

If you are treated differently or worse than your colleagues for one of these reasons, you may have been discriminated against. For example, if you did not pass your probationary period because you have a disability, that’s called adverse action. Any instances of negative treatment due to the attribute, including the dismissal itself, can be considered adverse action, in respect of which you may be eligible to make a General Protections Application.

Workplace Rights

An exercise of a workplace right typically is where you have made complaints or enquiries about your term of employment. For this reason, it includes receiving a benefit or having a role or responsibility under a workplace law, or in instances where you have commenced legal proceedings for a work matter.

If you’ve ever asked questions about your role, asked for clarification on your duties, or simply tried to defend yourself against negative treatment, then you may be eligible to make a General Protections Application. Our team of Workplace Advisors will be able to best support you through this process.

Industrial Action & Union Membership

Protections for industrial activity include where you engaged in, proposed to engage in, or refused to participate in industrial activity. Industrial action typically involves being a part (or not being a part of) unions. You should feel supported in being a union member or not.

Discrimination on the basis of your membership status with a union or industrual activity can be direct or indirect.

Direct

If someone has been treated less favourably because of trade union activity than someone without that activity, this is known as direct discrimination.

Indirect

Indirect discrimination is when there’s a condition you must comply with that others might not. This means it can cause difficulties for people who have a particular trait. For example, if your employer continues to request a meeting with you (knowing you’re a union member) at the same time union meeting are held, then this could constitute indirect discrimination, all be it a more subtle form than direct discrimination.

Notice and leave entitlements during probation

It’s important to be aware that being dismissed or fired during the probationary period does not stop you from being able to collect your unused annual leave hours. You’re employer has an obligation to provide you with adequate notice and pay out any unused accumulated annual leave hours. In almost all awards and agreements your employer does not have to pay any accrued sick leave on termination of employment by either party.

Important Requirement

Even during a probation period (3-6 months), and whether it is an unfair dismissal or a general protections claim there is very strict 21 days to lodge a application. It’s not 21 days from when you get your final payout, or your dismissal letter, it is from when you’ve been informed you have been dismissed from your employment.

We Will Support You

Here at Australian Workplace Discrimination Representatives, we can support you with any questions you have. We are superheroes when it comes to not only understand the circumstances, but also assisting you in deciding the right avenue to take when it comes to dismissal during probation. If you decide to lodge an application with the Fair Work Commission, our team of Workplace Advisors will work through drafting this together as your representative.

We’d love to hear from you. Contact our team today on 1800 333 666 for a confidential and free initial consultation.

The post Fighting Dismissal During Probation Period appeared first on AWDR.

The Australian Government’s nationwide rollout of the COVID-19 vaccination has been the topic of considerable discussion and debate. The COVID-19 vaccines are marketed as the most effective way to protect the community against this deadly infection and necessary to slow down the spread.[1] Consequently, state governments have issued public health orders (PHOs) and directions, mandating COVID-19 vaccination as a condition of employment for particular high-risk industries. Employers are now grappling with the question of whether or not they can legally implement mandating COVID vaccine in the workplace and in wider industries.

Employers are now asking themselves whether they have the legal right to direct employees to receive COVID-19 vaccination as a condition of employment in an inherently shared workplace with other employees, clients and members of the public. In analysing the existence of this right, it is appropriate to consider whether a government mandate requires an employee to be vaccinated as a condition of their employment; whether vaccination is required to fulfil the inherent requirements of the job; whether it would be lawful and reasonable to direct employees to be vaccinated and whether this breaches any discrimination laws.

Vaccination Policies in Workplaces – Methods of Implementing Mandatory COVID-19

Inherent Requirement of the Job

The concept of “capacity” goes beyond the physical capacity or skill of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[2]

In X v The Commonwealth,[3] the High Court held that inherent requirements of a job means the essential elements of the particular employment,[4]  which are not confined to the physical ability or skill of the employee to perform the “characteristic” task or skill of the employment.[5] In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees.[6]

No Government-Issued Vaccination Mandate –Not Inherent Requirement

In Fair work Commission case of Barber v Goodstart Early Learning,[7] a childcare and early learning centre introduced an immunization policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so. This policy was introduced and implemented without a government-issued mandate, but based on the employer’s perceived legal obligations to ensure the safety and welfare of employees and children.

Although Deputy President Lake makes it very clear that this case relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct,[8] similar reasoning can be applied in examining whether the COVID-19 vaccine can be considered an inherent requirement of a job.

Deputy President Lake held that determining what classifies as an inherent requirement must be done in a way that takes into account surrounding context and all other relevant factors, including the nature of the business of which the Respondent engages.[9] It is well established that a policy cannot artificially create an inherent requirement.[10] Mandating vaccinations, however reasonable and lawful the policy is, does not mean that vaccination is immediately an inherent requirement.[11] Not every policy of an employer will enumerate an inherent requirement of a role, but so long as the direction is reasonable and lawful it will be one that an employee must comply with.[12]

Even if being vaccinated fulfils the employer’s statutory obligations, it does not suggest that vaccination itself is essential as being vaccinated may not in its nature impact how the employee performed their role.[13] It is pertinent to examine the tasks performed, as the capacity to perform those tasks inform what is an inherent requirement.[14]

Despite these assertions, Deputy President Lake ultimately held that while there was no valid reason relating to the capacity of the employee in this case, there was a valid reason for termination based on her failure to comply with the reasonable and lawful direction of her employer.[15] Lawful and reasonable directions are discussed in detail below.

Government Issued Mandates – Condition of Work

In order to manage the COVID-19 outbreak in Australia, states and territories have declared a “state of emergency”, which provides the state or territory’s Chief Health Officer with emergency powers to issue directions and set requirements to eliminate or reduce the risk to public health. Consequently, these government-issued mandates dictate that as a condition of work, all relevant employees will not be allowed to present for work or enter their employer’s premises without a COVID-19 vaccination.

This raises the question of whether being vaccinated against COVID-19 affects an employee’s capacity or ability to fulfil the inherent requirements of the job and in their absence, how can an employer mandate COVID-19 vaccination in their workplaces.

Government Issued Vaccination Mandate – Vaccination an Inherent Requirement

If an employee is not vaccinated against COVID-19 in contravention of the government-issued mandates, it is more likely that this will impact the employee’s ability to fulfil the inherent requirements of the job. This was explored in the case of Kimber with the influenza vaccine.[16]

In the first instance, Commissioner McKenna held that the employee was unable to perform the inherent requirements of her job as she was not allowed onto the premises without an up-to-date flu shot.[17] It was held that if an employee cannot enter the employer’s premises, due to the vaccination requirements under government-issued mandates, the employee can not perform the inherent requirements of the job.[18] Thus, there is a valid capacity-related reason for the employee’s dismissal.[19] This decision was appealed to the Full Bench, where the majority upheld the original decision, reiterating that because the unvaccinated employee was unable to enter the employer’s premises, this plainly made the continuation of her employment untenable.[20]

In dissent, Deputy President Dean held that the employee’s inability to fulfil the inherent requirements of the role was not open for Commissioner McKenna to find, given there was an alleged medical exemption.[21] Due to the alleged medical exemption, the employer could also not direct the employee to be vaccinated as this would not have been a lawful and reasonable direction, but instead contrary to her medical advice.[22]

This argument was not accepted by the majority as they held that the evidence before Commissioner McKenna conclusively demonstrated that the condition is not a medical contraindication for the influenza vaccine which could satisfy the condition for an exemption.[23] Furthermore, Commissioner McKenna was entitled to accept and prefer the evidence of the Professor Wakefield as it would have been legally unreasonable not to.[24]

Instead, the Full Bench held that in circumstances where the employee was given ample opportunity by an employer to get vaccinated or demonstrate a valid medical exemption, no other consideration could operate to render the dismissal unfair.[25] The Full Bench ultimately held that the public interest weighed entirely against the grant of permission to appeal and the majority of the Full Bench did intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.[26]

Deputy President Dean’s dissenting judgement clearly expressed her opposition to mandatory COVID-19 vaccinations. Deputy President Dean held it should be abundantly clear that there are other, far less restrictive and less intrusive ways in which we can ensure public health and appropriately address the risk of COVID without resorting to the extreme measures currently in place.[27] Despite her assertion, it is readily accepted that the choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[28] Furthermore, it is readily accepted that the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[29]

Deputy President Dean contends that many employers are declaring they will mandate COVID vaccine in the workplace, and PHOs are being made by State Governments, in circumstances where there is no justification for doing so.[30] The Deputy President asserts that making blanket rules in PHOs deny people their fundamental right to work or operate to “lock them out of society”, which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise.[31] The bulk of the dissenting judgement focuses on the validity and necessity of the PHOs but the Fair Work Decision is not the jurisdiction to decide this.

Validity of Public Health Orders and Government-Issued Mandates – Can Employers Rely On Them?

The validity of the government-issued mandates, namely the PHOs, have been challenged in numerous courts across Australia. Whilst there are a number of proceedings still in progress, the Supreme Court of New South Wales upheld the governments power to mandate vaccinations and criticised Deputy President Dean’s dissenting judgement.

Although the Fair Work Commission and Supreme Court are different jurisdictions, Justice Robert Beech-Jones was able to criticise Deputy President Dean’s dissenting judgement due to the Plaintiffs’ heavy reliance on the reasoning. Justice Robert Beech-Jones acknowledged that Deputy President Dean’s assertions about the efficacy and safety of COVID-19 vaccines and other aspects of the public health response to COVID-19, were not relevant for the case at hand before the Supreme Court. However, his Honour slammed Deputy President Dean’s “clarion calls” which implore “all Australians” to do things such as “vigorously oppose the introduction of a system or medical apartheid and segregation”,[32] and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID”.[33] His Honour asserted that political pamphlets have their place but doubts that the Fair Work Commission is one of them[34] nor is it the authority for legal propositions.[35] As it currently stands, the PHOs are lawful and valid, meaning employers can rely on them and impose mandatory vaccination policies accordingly.

Although Justice Robert Beech-Jones and the Majority of the Full Bench disagreed and criticised the bulk of her judgement, Deputy President Dean’s dissenting view on the issue of dismissal was based on her belief that there was no legal impediment to the employee entering the workplace as she had a valid exemption. It is abundantly clear that obtaining a medical exemption for the COVID-19 vaccine requires greater medical evidence than the flu vaccine, particularly in industries with government-issued mandates. Notwithstanding, if an employee manages to obtain a valid medical exemption, then an employer must be mindful about potentially breaching anti-discrimination laws by requiring or directing the employee to be vaccinated.

Lawful and Reasonable Direction

Although government-issued mandates increase the likelihood of vaccination being an inherent requirement of the job, they are not imperative for implementing mandatory vaccination policies. In the absence of a government-issued mandate and despite whether a COVID-19 vaccination is considered to be an “inherent requirement” of a job, an employer may direct an employee to be vaccinated, if it is considered a lawful and reasonable directive.

The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees.[36] Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior,[37] or otherwise contained in an employer’s policies and procedures.[38] A breach of this implied duty constitutes a breach of contract; this misconduct can provide the basis of a valid reason for dismissal.[39]

Establishing Whether a Direction is “Lawful”

If there is a government-issued mandate in place, an employer can direct an employee to be vaccinated against COVID-19 and this direction has been held not only lawful, but also reasonable.[40] Thus, a government-issued mandate automatically renders a vaccination directive lawful and reasonable and provides the employer with the strongest legal right to make such a direction.

Nevertheless, for a direction to be deemed lawful, there is no requirement for a positive statement of law endorsing an action.[41] If a direction  relates to the subject matter of the employment and involves no illegality, the obligation of the employee to obey it depends at common law upon its being reasonable.[42] As per Glover,[43] it is not unlawful for an employer to direct an employee to be vaccinated against the flu or face termination if they refuse.[44]

Consequently, a vaccination directive is likely to be deemed lawful but in the absence of a government-issued mandate, the employer will need to demonstrate it is reasonable in the circumstances.

Increasing the Reasonableness of COVID Mandatory Vaccination Policies

Generally, the question of whether a direction is “reasonable”, is a question of fact and balance.[45] Employers face potential liability arising from their common law duty of care to their employees and to members of the public.[46] Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints.[47] For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.[48]

What is reasonable will depend upon all the circumstances relevant to the employment relationship[49] and it is insignificant whether a better or different policy may have been more appropriate.[50] Thus, what can be considered reasonable will likely differ for each individual employer and it is not the role of external bodies, such as the Fair Work Commission, to interfere with the right of an employer to manager their own business.[51] The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[52]

In order to increase the reasonableness of directing an employee to be vaccinated against COVID-19, an employer must consider: the extent of community transmission of COVID-19 in the location where the employer direction is to be given, including the risk of transmission of the Delta variant among employees, customers and other members of the community; the extent to which their employees need to work in public facing roles or in high-risk industries; whether the employees are in close-contact with the vulnerable population; whether there is any public health advice or government recommendations and whether alternative measures are sufficient, such as masks, social distancing etc., which would satisfy the employer’s health and safety obligations .[53]

The relevant factors for consideration in the high-risk industry of aged-care, were explored in Glover.[54] Commissioner Hunt had regard to the high-risk nature of aged care, the high risk of potentially contracting influenza and COVID-19 and the employer’s legal obligation to protect the safety of their employees or clients in order to decrease their liability for any breaches of their duty of care.[55] Commission Hunt held that the employer’s mandatory influenza vaccination policy for all of its client-facing employees, without allowing any exemption, was lawful and reasonable.[56] Thus, if an employer has made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk, a mandatory COVID-19 vaccination policy will be lawful and reasonable.[57]

In Arnold v Goodstart Early Learning Limited,[58] Deputy President Ashbury held that

“the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants”.[59]

DP Ashbury

In regards to demonstrating reasonableness under an employer’s health and safety obligations, it is well-known that employer’s have a heavily codified duty to provide a safe place of work. Occupational Health & Safety (OHS) and Work Health & Safety (WHS) laws impose obligations on employers to provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable. This includes a duty to workers or employees but also other people in the workplace, such as clients and members of the public. Thus, employers are forced to consider and consult on a mandatory COVID-19 vaccinations policy by considering the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant, when fulfilling their health and safety obligations.[60]

In Barber v Goodstart Early Learning,[61]it was held that mandatory flu vaccinations are a good practice in attempting to prevent spread of infection and minimise risk before it occurs.[62] Further, it has been held that that employers can be liable for the transmission of infectious diseases in the workplace, which would provide some impetus for the employer to mandate vaccinations.[63]

In respect of the public health advice and government recommendations, an employer can demonstrate their appropriate reliance on this advice in order to increase the reasonableness of vaccination directives. The Federal Government, State Premiers and Chief Health Officers have all reiterated that everyone who is eligible, should get vaccinated against COVID-19. The Australian Technical Advisory Group on Immunisation (ATAGI) re-iterates the importance of COVID-19 vaccination as a key component of COVID-19 control with the overarching goal of protecting all people in Australia potential harm.[64] Consequently, ATAGI notes the significant risk that the Delta variant poses to COVID-19 control and therefore continues to recommend COVID-19 vaccination for all adult Australians.[65] While these Government recommendations advocate vaccination with the use of permissive language, such as “recommend” and “should”, they could still inform a reasonable employer that mandatory vaccination is appropriate and reasonable.[66]

As demonstrated, it is readily accepted that the greater the risk of transmission, the high-risk and close contact nature of the employer’s business, any vulnerability of the employer’s clients or customers and the public health advice advocating for vaccination as a measure of protection, increases the reasonableness of a mandatory COVID-19 vaccination policy. Thus, it is likely that if an employer can demonstrate these factors are applicable to their workplace environment, a direction to employees to get vaccinated against COVID-19, will be deemed both lawful and reasonable. Consequently, an employer may direct an employee to be vaccinated and refusing to do so will amount to a valid reason for termination based on the employee’s failure to comply with the reasonable and lawful direction of the employer.[67]

However, if community transmission is low, employees have minimal face-to-face interaction as part of their normal employment duties, for example employees working from home, it decreases the likelihood that a mandatory COVID-19 direction will be reasonable, given the limited risk of infection and transmission.[68]

These policies being implemented as a blanket requirement for all employees, may not be reasonable if not all employees fulfil similar duties and thus are at a similar risk. Blanket mandate statements may fail tests of proportionality, necessity and reasonableness.[69] They may be more than the absolute minimum necessary to combat the COVID-19 crisis and may not be justified on health grounds if there has not been a proper risk management assessment.[70] Ultimately, mandatory COVID-19 vaccination policies should be implemented on a case-by-case basis, upon assessing all relevant factors.

Discrimination Laws

Medical Exemption for COVID-19 Vaccination

Discrimination laws exist under both federal and state legislation, with both jurisdictions prohibiting discrimination on the ground of disability. If an employer implements a mandatory vaccination policy as a condition of their employment or directs employees to be vaccinated under a lawful and reasonable directive, this may constitute indirect discrimination if the employee cannot be vaccinated. An employee or person may not be able to be vaccinated due to a disability, through a valid medical exemption, or another protected attributed under federal and state anti-discrimination laws.

An employee can defend a claim of indirect discrimination if this condition or requirement is considered “reasonable” in the circumstances. The employer holds the burden to demonstrate that the mandatory COVID-19 vaccination policy is reasonable and a range of factors are considered to determine reasonableness. The reasonableness of such a policy increases if there is a relevant public health order, if there are health and safety concerns for which a COVID-19 vaccine would be appropriate, the nature of the work performed by the employee, whether the employee has contact with other employees or the general public, whether the employer is considered to be in a high-risk industry and whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as testing regimes, remote work, physical distancing or personal protective equipment.[71]

Employers are obligated to make reasonable adjustments to accommodate people with disabilities or in respect of their protected attributes, but not if it will cause an unjustifiable financial hardship on the employer or disrupt the workplace.[72] If the adjustments are unreasonable or if they would still not allow the employee to perform the inherent requirements of the job, there may be a valid reason for dismissal in regards to capacity and it will not constitute discrimination under federal and state laws.

Although the Fair Work Commission does not decide claims brought under anti-discrimination laws, Commissioner Hunt did hold that an employer’s mandatory influenza vaccination policy for all of its client-facing employees, without allowing any medical exemptions, was lawful and reasonable.[73] In deciding this, Commissioner Hunt had regard to the high-risk nature of aged care, the high risk of potentially contracting influenza and COVID-19 and the employer’s legal obligation to protect the safety of their employees or clients in order to decrease their liability for any breaches of their duty of care.[74] Ultimately, Commissioner Hunt held that the employer’s rights, together with their responsibility to their clients, overrode the employees right to decline the vaccination but remain employed.[75]

Conclusion

An Australian employer may have the legal right to mandating COVID vaccine in workplace and require employees to receive the vaccine. An employer may achieve this through introducing policies which render COVID-19 vaccination an inherent requirement of the job or by making a lawful and reasonable directive for employees to be vaccinated. In any event, government-issued mandates clearly provide the strongest justification for mandating COVID-19 vaccines in a workplace. In the absence of a government-issued mandate, it is clear there is a higher burden on employers as they must establish that directing an employee to be vaccinated, is lawful and reasonable.  

As discussed, there are many ways in which an employer can increase their reasonableness but notwithstanding this, there are clear scenarios in which an employer will likely not succeed in mandating vaccinations for particular employees. If an employer mandates such policies and does not allow for medical exemptions, they may not be able to defend a discrimination complaint if they have not conducted a proper risk management analysis prior to implementing the policy. In addition, an employer is clearly required to assess each exemption on a case-by-case basis in order to determine whether they have made reasonable adjustments and defend any claim of discrimination.

For the avoidance of doubt and legal recourse, it is vital that employers implement mandatory COVID-19 vaccination policies, or direct their employees to be vaccinated, on a case-by-case basis and only after careful consideration of the necessity and reasonableness of such impositions.

How Can We Help?

Are you looking at making a claim but are unsure about how to approach the situation? You may need to seek workplace advice victoria and/or representation through a paid agent or lawyer. As independent workplace advisors, A Whole New Approach (paid agents) can provide you with representation in your unfair dismissal or general protections claim.

Australian Workplace Discrimination Representatives has run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals. We draft the claims and applications on your behalf to a Federal Court standard, run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide even handed advice in regard to the prospects of your case.

[1] Department of Health (Cth), About Australia’s COVID-19 Vaccine Rollout (Web Page, 25 September 2021) < https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/about-rollout>.

[2] DA v Baptist Care SA [2020] FWCFB 6046, [28].

[3] [1999] HCA 63.

[4] Ibid [31]; Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295 (Gaudron J).

[5] X v The Commonwealth [1999] HCA 63, [11].

[6] Ibid.

[7] [2021] FWC 2156.

[8] Ibid [430].

[9] Barber v Goodstart Early Learning [2021] FWC 2156, [385].

[10] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [34].

[11] Barber v Goodstart Early Learning [2021] FWC 2156, [384].

[12] Ibid [384].

[13] Barber v Goodstart Early Learning [2021] FWC 2156 [388].

[14] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [34].

[15] Barber v Goodstart Early Learning [2021] FWC 2156, [396].

[16] [2021] FWC 1818; [2021] FWCFB 6015.

[17] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [59].

[18] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [63].

[19] Ibid.

[20] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [54].

[21] Ibid [81].

[22] Ibid [80].

[23] Ibid [51].

[24] Ibid [54].

[25] Ibid.

[26] Ibid [60].

[27] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [164].

[28] Barber v Goodstart Early Learning [2021] FWC 2156, [309].

[29] Ibid[386]; citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

[30] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [109].

[31] Ibid [151].

[32] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [182].

[33] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [69]; citing Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [182]-[183].

[34] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [69].

[35] Ibid.

[36] Barber v Goodstart Early Learning [2021] FWC 2156, [303].

[37] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, at 621.

[38] Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268; [2008] NSWSC 159, at [342].

[39] Barber v Goodstart Early Learning [2021] FWC 2156, [303].

[40] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [57].

[41] Grant v BHP Coal Pty Ltd [2017] FCAFC 42, [94]; citing R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) CLR 601, 621-62 (Dixon J).

[42] Ibid.

[43] Glover v Ozcare [2021] FWC 2989.

[44] Ibid 242.

[45] CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752, [11]; citing McManus v Scott-Charlton (1996) 70 FCR 16, 30C.

[46] Woolworths Ltd v Brown (2005) 145 IR 285, [24].

[47] Ibid.

[48] Woolworths Ltd v Brown (2005) 145 IR 285, [24].

[49] Ibid [35].

[50] Ibid.

[51] Barber v Goodstart Early Learning [2021] FWC 2156, [309].

[52] Ibid.

[53] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations>.

[54] Glover v Ozcare [2021] FWC 2989.

[55] Ibid [247].

[56] Glover v Ozcare [2021] FWC 2989 [242].

[57] Barber v Goodstart Early Learning [2021] FWC 2156, [435].

[58] [2020] FWC 6083.

[59] Ibid [32].

[60] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations>.

[61] [2021] FWC 2156.

[62] Ibid [319].

[63] Grinham v Tabro Meats Pty Ltd [2012] VSC 491, [6].

[64] Department of Health (Cth), ATAGI statement regarding COVID-19 vaccines in the setting of transmission of the Delta variant of concern (News Release, 2 August 2021) <https://www.health.gov.au/news/atagi-statement-regarding-covid-19-vaccines-in-the-setting-of-transmission-of-the-delta-variant-of-concern>.

[65] Ibid.

[66] Barber v Goodstart Early Learning [2021] FWC 2156, [326].

[67] Ibid [396].

[68] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations>.

[69] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [181].

[70] Ibid.

[71] Australian Human Rights Commission, COVID-19 vaccinations and federal discrimination law (Web Page, 2021) <https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law>.

[72] See for example Disability Discrimination Act 1992 (Cth) s.21B.

[73] Glover v Ozcare [2021] FWC 2989, [242].

[74] Ibid [247].

[75] Ibid [262].

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Compensation

As with the overall conciliation and arbitration process, the Fair Work Commission will not advocate for compensation. However, they may provide information about the terms of settlement.

Outcome

The outcome of conciliation or arbitration will depend on the agreement made between each party. These Fair Work conciliation outcomes may include reinstatement of the employees job, an apology from the employer, compensation for lost wages, and/or changes to workplace policies.

The Fair Work Commission will not make a ruling on the outcome. However, if your complaint is not resolved there are further options available. These options include having your case heard in the Federal Court of Australia or the Federal Circuit Court of Australia.

Putting Forward Your Agenda

Putting forward an argument and outlaying the facts is no easy feat. Employees can do this on their own, however it is advisable to engage a lawyer or workplace advisor (us) to assist you with preparing everything you need and support you through the process. This will ensure no stone is left unturned and you have every possibility of reaching a positive outcome.

Here at AWDR we will fight your fight! We are superheroes and winning is in our DNA! With no win no fee options available you can sleep easy knowing you are in good hands without the added financial stress! Call us on 1800 333 666 for an obligation free assessment to determine your rights and whether or not you can take your matter through the arbitration or conciliation process.

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