In this article, we will explore what the average payout for unfair dismissal is in Australia, including overall considerations and how a compensation payout is calculated.

Resolution By Way of The Fair Work Commission

The Fair Work Commission (FWC) is the government agency responsible for resolving disputes between employees and employers in Australia. When an employee files an unfair dismissal claim with the FWC, the Commission will consider several factors before determining an appropriate remedy, including the employee’s length of service, their age, their earnings, and the circumstances surrounding the dismissal.

The FWC has the power to order an employer to reinstate an unfairly dismissed employee, but this is a relatively rare outcome. More commonly, the FWC will award the employee compensation in the form of a monetary payout. The amount of compensation awarded will depend on a range of factors, including the employee’s earnings and the impact that the dismissal had on their financial position.

Unfair Dismissal Compensation

There is no set amount of compensation that an unfairly dismissed employee is entitled to receive in Australia. The FWC will consider each case on its merits and make a determination based on the individual circumstances of the case. However, there are some general trends and guidelines that can give employees an idea of what they might expect to receive in compensation.

Compensation Payout Cap

According to data from the FWC, the median compensation payout for unfair dismissal in Australia in 2020-2021 was $13,320. However, it’s worth noting that this figure only takes into account the cases that were heard and decided by the FWC. Many unfair dismissal claims are settled out of court, and the terms of these settlements are not publicly available.

The FWC can order up to the lesser of two amounts: either half of the employee’s yearly salary, or the compensation cap, which is $79,250 for the period of 2021-22 and is subject to change on July 1st of each year. For reference on the compensation cap, refer to the compensation for unfair dismissal as outlined by the Fair Work Commission.

It is important to remember that this is the maximum amount, and not all employees will receive this much in compensation.

Review examples of unfair dismissal cases and compensation awarded.

Ruling Considerations

Compensation for unfair dismissal can be complex. The Fair Work Commission will provide ruling with reference to section 392 Remedy Compensation within the Fair Work Act 2009.

Employee Considerations in Compensation Payout Order

In addition to the employee’s earnings, when making an order of compensation the FWC will consider other factors when determining the amount of compensation to be awarded. For example, employment, any influence of harassment or discrimination, and length of employment.

Employment

The Fair Work Commission will in dome cases take into consideration whether the employee was able to find alternative employment quickly after their dismissal. Employees may receive a lower payout than someone who was unable to find work for an extended period.

Harassment and Discrimination

Similarly, to the above, if the employee was unfairly dismissed in a particularly egregious manner, such as being subjected to harassment or discrimination, they may receive a higher payout than someone who was dismissed for less serious reasons.

Length of Employment

Another important factor that can impact the amount of compensation awarded is the length of the employee’s service with the employer. In general, employees who have worked for their employer for a longer period of time will be entitled to a higher payout than those who have only been with the company for a short time. This is because longer-serving employees are likely to have built up a greater level of job security and may find it more difficult to find alternative employment.

Small Business and Unfair Dismissal Compensation

It’s also worth noting that employees who were employed by a small business (defined as having fewer than 15 employees) at the time of their dismissal may be entitled to a lower amount of compensation than those who were employed by a larger business. This is because small businesses are subject to different rules and regulations than larger businesses.  

For more on compensation payable with relation to small businesses, refer to the rules for small business owners as outlined by the FWC.

Key Takeaway

In summary, the average payout for unfair dismissal in Australia is around $13,320, but this figure can vary widely depending on the individual circumstances and the Fair Work Commissions ruling in alignment with the Fair Work Act 2009.

It’s important to note that you have 21 days from the date in which you were dismissed to make a claim for unfair dismissal with the Fair Work Commission. For support with your claim for compensation get in touch with the team here at AWDR, we’d love to hear from you.

Note that AWDR are not lawyers. Our team are workplace experts and can assist you with an unfair dismissal claim against your employer.

The post Unfair Dismissal Compensation & Payout: How is it Calculated? appeared first on AWDR.

In this article we share the how abandonment of employment is typically determined, employer obligations, and tips for employees.

Determining abandonment of employment

In order to determine whether an employee has abandoned their job, the employer must take reasonable steps to contact the employee and seek an explanation for their absence. This can include phone calls, emails or written correspondence requesting that the employee return to work or provide an explanation for their absence.

If the employer has made reasonable attempts to contact the employee and receives no response, they may assume that the employee has abandoned their job. This can result in termination of employment and the employee may be ineligible for any entitlements or compensation related to unfair dismissal.

Employers Obligations

As stated by Fair Work, if an employer believes their employee has abandoned their employment, they must make every reasonable effort to contact an employee.

Clear abandonment policies

It is important for employers to have clear policies and procedures in place regarding absence from work and notification requirements. This can include outlining the consequences for failing to attend work or provide notice of absence, as well as the steps that will be taken to contact the employee and determine if they have abandoned their job.

Contacting the employee

In most cases, the first step taken by the employer is to try to get in touch with the employee to determine their reason for absence. If the employee can provide a valid reason, such as sickness or unexpected family emergency, the employer might consider a leave of absence. However, if the employee fails to respond or provide a valid reason, it will be considered as abandonment of employment.

Prevention measures

To prevent abandonment of employment, employers should establish clear and concise communication channels with their employees. Regular check-ins or performance evaluations can help identify any issues or challenges faced by the employee that may lead to their absence from work. In addition, offering support programs, such as career development or mental health support, can promote employee engagement and commitment.

Tips for Employees

Employees can avoid abandonment of employment by maintaining clear communication lines with their employer. When you are unwell or sick, ensure you notify your employer and provide any supporting evidence as required. When taking annual leave or recreational leave be sure to have the relevant approvals in place prior to taking your leave.

Case Examples

Our team here at AWDR have put together some case examples where abandonment of employment has been at the centre of a claim at Fair Work. Abandonment Case Examples.

Abandonment of Employment and Unfair Dismissal

Do you feel you have been a victim of unfair dismissal under abandonment of employment?

Employees who are facing termination due to abandonment of employment are advised to seek professional or legal advice from workplace investigators such as Australian Workplace Discrimination Representatives to ensure that their rights are protected and that they receive any entitlements or compensation they may be eligible for. Contact our team today for a confidential no obligation consultation.

The post Defining Abandonment of Employment appeared first on AWDR.

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.

Knowledge and expertise

One of the most obvious reasons to be represented is that the law is not easy to interpret or apply. Qualified lawyers are experienced and will advise you on your rights and potential liability in a court action. Without proper representation, you may be compromising your rights, reputation and finances.

Aside from representing you efficiently, representatives are aware of the standards that are required in regards to the conduct of all parties attending a conference or hearing. The standards are in place to assist the Commission in providing fair hearings for all parties. Providing fair hearings involves allowing all parties to put their case forward, and to have their case determined impartially and according to law. The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants. When you have a representative, they will guide you as to what these standards are, and this will indicate to the Commission and the opposing party that you are taking the matter seriously. To argue the best possible outcome, applicants need to seize both the moral and legal high ground in the way they carry themselves during these Fair Work conferences and conciliation hearings.

Representatives have your best interests in mind

Your representative is solely on your side and always has your best interests in mind. Like all courts and tribunals, the Fair Work Commission is an independent government body and so they are impartial. This means that the agents of the Fair Work Commission, such as conciliators or members, are not on your side. Instead, they can only provide even handed advice to both the applicant and respondent. If you engage a representative, they will address the merits of your claim, the Respondent’s arguments and provide you with the best advice on how your case can be best handled.

When the matter is listed for a conciliation conference, representatives make need to seek leave, or permission, to appear on an Applicant’s behalf, depending on the Application. In most cases, representatives are allowed to appear on behalf of the Applicant as the Commission understands that the Applicant unfamiliar with these types of proceedings. The Applicant would be going up against large companies and corporations who have more knowledge about the requirements and procedures under the Fair Work Act 2009 (Cth). In addition, most claims have a great deal of complexity in regards to the issues involved and so your representative will assist you in outlining the relevant argument for your particular application in order to “make your case” and convince the other side to settle.

Increases your chance of reaching a resolution

Although courts, tribunals and commissions have measures in place for self-represented individuals, statistics show that applications with representatives have a higher settlement rate all together. For instance, the 2018-19 Annual Report for the Anti-Discrimination Board of New South Wales indicates that only 19.1 percent of cases settle at or after conciliation and only 7.5 percent of cases settle prior to conciliation. This means that there is a total settlement rate of 26.6 percent. A total of 14.6 percent of cases that are resolved at the Anti-Discrimination Board of New South Wales, these are referred to the New South Wales Civil and Administrative Tribunals. This data indicates that your chances of reaching a resolution are significantly higher where an employee engages a representative.

Mitigates your liability for counterclaims or costs

Given a representative’s expertise and familiarity with legal actions, they will provide you with advice regarding the prospects of your case in a realistic way. Often, court actions are fuelled by emotion for applicants. Thus, they may not be thinking clearly or logically, which can impede on any outcome or resolution. Prior to a formal determination or decision, there are plenty of opportunities to reach a settlement agreement. Without proper advice, the applicant will be unaware as to whether any settlement offers are reasonable and within an acceptable range.

For instance, some applicants 2 years’ pay for an unfair dismissal but are unaware that there is a statutory cap of 26 weeks. By not accepting a reasonable offer or seeking unreasonable and unattainable remedies, you risk an order to pay costs. This means that if a judge or Commission member decide your case and you lose or receive less money than what was offered to you within settlement negotiations, a court or Commission can make an order that you are required to pay the other side’s legal costs. By engaging a representative, you are giving yourself the best change at making well-informed choices in your court case and minimises your risk of having costs awarded against you.

No-Win, No-Fee Options are available

Depending on the organisation and type of application, many representatives offer a no-win, no-fee arrangement to their clients. In the case of unfair dismissal or general protections, many paid agents or lawyers offer a variation of this fee arrangement and so applicants should not be discouraged from lodging an application out of concern about legal costs. The several benefits of representation should not be outweighed by the concern about your potential legal bill and so it is important that you investigate no-win, no-fee representatives, such as AWNA.

A Whole New Approach Can Help You!

A Whole New Approach (AWNA), is an independent body of workplace advisors and paid agents. We have run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards, VCAT and Tribunals. We are experienced in drafting the claims and applications on your behalf to a Federal Court standard, representing you in the conciliation conference, preparing documents for hearings or arbitrations and we are master negotiators. A Whole New Approach has acted for applicants in thousands of decisions published in various jurisdictions across Australia. Although we would act as your advocate, we provide realistic advice in regards to the prospects of your case. We are so confident in our ability, the majority of our cases are run on a no-win, no-fee basis. This means we are happy to carry the risk and run your case until you decide you are satisfied with the resolution.

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 What makes a good Fair Work Commission representative? appeared first on AWDR.

An employee must clearly state that they intend to end their employment otherwise it may very well consitute reasonable grounds for abandonment.

It is important to note that employers also have obligations when determining if the termination of an employee on adgrounds of abandonment alligns with the definition.

We explain what abandonment of employment is and share some case examples.

What is the definition of abandonment of work?

“Abandonment of employment” is a term that describes a situation in which an employee stops attending his or her job without any explanation or justification. It indicates a failure or unwillingness to fulfill his or her obligations under the employment contract. This could be called a “renunciation” of the employment contract.

An employee could abandon employment if they leave a job during a shift, and then not return to work the next day.

Test for abandonment of employment: Whether one party’s conduct is such that it conveys to a reasonable person in the other party, either the whole contract or a fundamental obligation under the contract.

The employer can terminate an employment contract by renunciating the employee’s agreement to renounce. The employer’s action in such a situation terminates the employment contract. However, the employee’s renunciation is what ends the employment relationship.

Sharpe v MCG Group Pty Ltd.

An employee had informed her employer she was unable to work due to health reasons. She was then fired. The Commission ruled that the employee was terminated on the employer’s initiative. The argument that the employee had left her job by failing to show up for work as instructed was rejected. Instead, the employer was held to have terminated the employment.

Le Plastrier (Northern Belle Pty Ltd):

The applicant disagreed with her employer about a certificate that was allegedly not compliant for one of the workers. The applicant was concerned about her legal obligations to the licensing authority. Her employer ruled that the certificate was acceptable, and she was dismissed. The employer, Le Plastrier refused to allow the applicant to work the same shift as the worker and told her that her position was no longer available because the day shift was over. Although the employer offered the applicant work, it never confirmed the offer. The employer deemed this to be a termination of employment.

Thompson v Zadlea Pty Ltd T/A Atlas Steel

This case was an unfair dismissal claim filed in the Fair Work Commission by a Canadian national who was employed as a metal fabricator/welder. The original visa was for a temporary holiday visa. It expired in April 2018. The applicant then signed an employment contract with Atlas Steel, whereby it was his nominee for a Temporary Skills Shortage Visa. 

The applicant was involved in an altercation on 21 June 2018 with another employee. After a dispute with the same employee, the applicant quit the job and returned to his home. After encountering the same employee, the applicant went to his doctor. He issued him a certificate regarding his capacity. This indicated that he was required to be absent from work until 5/7/2018. The respondent determined that the applicant had quit his job due to his inability to work for more than three consecutive days. He then decided to withdraw the visa nomination.

The Commission wasn’t satisfied that applicant had quit his job because he stopped attending his work place without giving any explanation or excuse. The Commission found that the respondent had effectively taken action to terminate applicant’s employment by withdrawing its visa nominee. Its actions were unreasonable and harsh. After the applicant left his workplace on 22 June 2018, the respondent did not attempt to contact him. The Commission ruled that the applicant had been unfairly dismissed and awarded $7,022.40 in compensation. Less tax was required by law.

Are you considering a resignation or abandonment of employment?

Employers are generally capable of accepting a clear, unambiguous resignation as valid resignation. Special circumstances can arise if a resignation is made in the heat of a situation or under extreme pressure. An employer may have to give a reasonable amount of time if there are special circumstances. If the employer is notified that they have not intended to resign, they may be required to confirm that they intend to resign.

Claypole v Australian Native Landscapes

In the case of Claypol v Australian Native Landscapes the employee was fired after a heated argument with his employer. In this instance the employer chased the employee in a car, leaving him on the roadside without a vehicle to take home. The employer claimed that the employee had left his job and then later claimed that he had violated company policy. The employer found no reason for dismissal. The applicant was not properly notified and was not given the opportunity to respond.

Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group

A former employee of Fortezza Pth Ltd testified that he suffered from anxiety and depression. This was exacerbated by the stress of work. An employee was dismissed while on personal leave. He was covered by a health certificate. The employer refused to accept the medical certificate and claimed that the employee had left his job. 26 days later, the employee filed an Unfair Dismissal Application.

Employer Obligations in Employment Abandonment

Employers who believe an employee has left their job must contact them to find out the reasons. The most appropriate contact methods include email, phone, and mobile phone. Employers should keep a record of any attempts to contact employees. This includes messages left or conversations, and these notes should be kept on the employee’s personnel file.

If attempts to contact the employee fail, the employer should send a letter via registered mail or email with automatic sender notification activated to the last known address of the employee. The employer should contact the employee to get a reason. If the absence is due a medical condition the employer should request appropriate evidence. If the reason is not due a medical condition the employer should send a letter to the last known postal address. We recently wrote an article on ‘Can I get fired for not having a medical certificate?‘ worth reading for more information.

If the employer fails to get back to the employee as described above, then the last step is to send a second letter or email. The employer should send a final letter or email detailing all attempts to contact the employee. It should also include specific details like dates, details of messages left, emails and SMSs as well as specific details about the contact methods used.

Notify the employee that if no contact is made by the employer by a specified date (or if they fail to provide a valid reason), the employer will consider the employee to be terminated from their employment. The employer may declare that the employee has quit their job if they do not respond to the final correspondence. This will be a repudiation of the employment agreement and will terminate the employee’s employment contract.

Abandonment of Employment or Unfair Dismissal Applications

Our team of Australian Workplace Discrimination Representatives are experts in unfair dismissal Victoria can help you determine if your employer claims you have been fired but it is not your fault.

Even if you believe that you have left your job, the employer must follow the steps suggested or any reasonable steps they would take to determine if an employee has quit.

Contact our team today.

The post What is Abandonment of Employment? 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.

What is diversity in the workplace and what does it look like?

Diversity is the variety of different people, cultures, values, and ideas. It is the world’s natural wonder! What’s more is that diversity in the workplace is not just about gender or ethnicity anymore. It includes diversity in thoughts, backgrounds, skillsets, and perspectives.

A diverse workplace embraces all of these elements to bring together a diverse workplace that’s empowered to drive better business outcomes and personal growth.

Changing Diversity in the Workplace: Challenging & Rewarding

Many people shy away from this because they don’t know where or how to get started. An organisation may have tried and failed before to implement diversity initiatives. They might decide it doesn’t work, or the benefits are not worth the effort.

There will always not be demand for inclusive workplaces. In Australia, 40% of the population are born overseas and will soon be joining the workforce. It’s a great time to get started, but it is important to change if you have failed in the past.

These are eight ways you can start challenging and changing your employer towards a more inclusive environment. One that is worthy of being proud of.

1. Processes for recruitment

Diversity and equity are key components of your recruitment efforts. Make sure you’re looking for talent from all backgrounds. Do not create unnecessary barriers for entry to the hiring process by requiring advanced degrees, expensive certifications, or experience with specific firms. Poor English should not be a barrier. We must know that 40% of all Australians were born overseas. These migrants and refugees have amazing skills and training and experience, which is what Australia has built on over the past 200 years.

Your employer must reiterate its commitment to inclusive recruitment. Interviews should reflect diversity both among current employees and potential employees. Employees who have been or filed for Workcover are often viewed as lazy, complainers, or a liability. This subconscious belief that only fit, white, young men are eligible for Workcover must be abandoned.

2. Groups of employees

Your employees are complete people and bring their whole selves to work every day. It is not unusual to spend more time at work then with your spouse, husband, or partner. It can be difficult to separate your work and home lives. The fact that you are expected to be available 24 hours a days doesn’t help. It is important to provide spaces for employees where they can meet with others of the same background, ethnicity, or who have similar interests. This will ensure that everyone feels included and represented at work. These adjustments, which don’t cost anything, show inclusiveness and respect.

3. Be an example

In more ways than one, leaders set the pace for companies. Inclusive leadership groups are more effective at making decisions and a strong reminder to the company’s values. People from low-income backgrounds worry about their ability to advance in their careers (the ever-present glass ceiling), so it is important to find someone who can relate to them and reassure them that they will be able to thrive at the company. They have a chance to succeed, not despair.

4. Always be upfront and honest with your approach

Do not try to create diversity by yourself. Your efforts should be transparent, and you should ask for the help of your team. One person cannot see everything or fix it all. You might consider putting in place regular meetings and feedback devices so that your team can share what they see and what needs improvement. Also, they can discuss any concerns in a neutral environment. Follow up by acknowledging their concerns and making meaningful changes.

5. Community Engagement (both within and outside the Company).

Companies can’t be as socially responsible as they once were. This is evident with climate change. It’s easy to lose trust in your employees by making statements that aren’t consistent with their daily lives. Adopt a zero-tolerance policy against discrimination, racism, sexism and harassment. These issues are not restricted to particular interest groups. (This special interest group seems to have in via lobbying groups). Creating an environment where people feel safe, valued, and respected is a way of standing up for your rights.

6. Open your eyes, let it all be seen

Diversity in groups and diversity means diversity of thought. Ask employees to participate in the discussion, particularly if they have never spoken up before. It is difficult for people to voice their opinions when the conversation becomes too homogeneous. Discuss the pros and cons for your ideas. This will show that you care about the best idea and not the most popular. You are open to listening to everyone, without any fear about who or what you are.

7. Do your research

You can share the benefits of diversity and your colleagues with others. Share stories and put the benefits forward in a concise way. It is important to ensure that evidence-based decisions are made where possible. While looking at the positives can be a good thing, we have a tendency to see the negatives and want to destroy people’s ideas. There is still research on the benefits of having a diverse workforce. Employees are more satisfied, feel valued and included, which is a benefit that can be seen across the board. Trust is built within organizations when there is inclusion.

8. Stories about Equity and Diversity

Diversity and equity in the workplace. I will tell you a story about a Friday night 18 years ago. I was going out and I didn’t drink so I hired a Taxi. During this ride I asked him three times to stop at a bottle store. He refused. 

His religious beliefs made it obvious. I was frustrated and asked him how many Christian friends he had. I asked him to count the number of Muslim friends I had. He said no. I replied that neither of us had crossed the line. This story is something I have told to many people in the workplace over the years. It shows the great divide and the lack of diversity among my friends. This was a conscious decision that I made.

The team at A Whole New Approach have a diverse work force. It’s not difficult, and it fits with the “a fair get mate” that we Australians are proud of. To this day, I am still friends with the taxi driver.

Stand out, be different!

Conclusion: Equity and Diversity in the Workplace

Equity and diversity in the workplace is more than a conversation between two people. Every person has something that makes them unique. It’s what makes us different and makes the world better. It would be boring to be the same, let’s face it. Management must recognize and use employees’ strengths to get the best from them. Employers shouldn’t have to spend a lot of money to make this happen. We all bring our unique strengths to the workplace, regardless of whether it is our educational backgrounds, perspectives, and ways of thinking. An inclusive employer is one that encourages innovation, social change, and community engagement.

Need Support?

If your employer has taken adverse action against you or you have been discriminated against because of your race, colur, disability or cultural background, get in touch with our team today. Below are some pages of reference to consider.

Discrimination

Unfair DIsmissal

General Protections

The post 8 Ways to Challenge Diversity in the Workplace 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.