Project Description

Unfair Dismissal – With Rebecca Richardson and Helen Parrett

On the HR Breakfast Club podcast today we are taking a look at Unfair Dismissal. We will be discussing the pitfalls, challenges and preventative action in the workplace, and strategies to work towards the kind of outcomes that ensure that everyone gets a fair go in the workplace.

Our host Genevieve Jacobs is joined by Helen Parrotts, an HR manager, who has also worked as a policy and project manager, and a director of HR in private enterprise here in Australia and in the UK.

We are also joined by Rebecca Richardson. Rebecca is part of the Bradley Allen Love employment law team and has a background in the community sector. She focuses on protecting the rights of employees by assisting them with letters involving underpayment, unfair dismissal, adverse action discrimination

For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!

Some topics we cover:

  • What is the role of the HR manager in claims of unfair dismissal
  • Ascertaining what “fair” means
  • The expectations of the employee on HR when dealing with unfair dismissal allegations
  • It’s all well and good to have a “process”, but understanding that human emotion is involved and requires careful consideration and investigation
  • Who is covered under the unfair dismissal laws
  • How the rules differ for small businesses

Genevieve: Hello, I’m Genevieve Jacobs. Welcome to the Bradley Allen Love HR Breakfast Club Podcast, where we discuss all things human resources related, with an employment law spin. Each episode is going to focus on an area of HR with some specialists in the field. They’ll give you an informed in-depth look at some of the hot button issues you might be facing in the workplace. 

Our website is hrbreakfastclub.com.au, if you’d like to make contact with some questions, we’ll do our best to respond to those, as well as keeping you updated on recent developments in the field. This week, we’re looking at unfair dismissal. I’ll be joined by HR manager, Helen Parrott, and employment law specialist, Rebecca Richardson to talk about pitfalls, challenges, preventative action, and working towards the kind of outcomes that ensure everyone gets a fair go in the workplace. I should say that this episode comes with a content warning in context with some of the related cases.

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Genevieve: Helen Parrot is an HR manager, who’s also worked as a policy and project manager, and a director of HR in private enterprise here in Australia and in the UK. Helen, thanks for joining the podcast. Hello.

Helen: Hello.

Genevieve: You’re a human resources manager. What’s your responsibility with regard to unfair dismissal?

Helen: A special responsibility in reference to HR managers, are essential we comply with our policies and procedures. That when we are looking at areas of concern, in reference to that may result in unfair dismissal, that we are being fair to the individual and to the business, looking at those thoroughly.

Genevieve: I guess that goes to the question of fundamental values as an HR professional, what underpins your approach when it comes to an unfair dismissal issue? What are you bearing in mind at the very beginning?

Helen: What is fair, I think that’s the value, is that we are being fair throughout to the individual that we thoroughly investigated the incident. If it’s an incident, or if it’s redundancy, that there is a fair reason for redundancy, as well, and that there is a business case around that as well.

Genevieve: How long would you take to determine that? w]What would your process be once you’re aware that there’s a complaint of this nature?

Helen: Depending on the severity, to be honest with you, is to be very quick and ensure that it’s thorough as well. An investigation can take– There’s no timescale on it really, it takes as long as it needs to take, that you have to do, and as I keep saying a thorough investigation because you have to be fair and ensure that you’ve investigated all areas.

Genevieve: You would mind to get on to it there, wouldn’t you?

Helen: Very much. No, you’ve got to get on to it straight away, to deal with it in the appropriate manner. If you delay anything it can affect the outcome in reference to that.

Genevieve: What expectations do you think employees might have of the role that you will play as the HR manager in this often very difficult situation?

Helen: I think it’s to be supportive, it’s to listen, and to ensure that things are investigated thoroughly basically and that they are being treated in a way that is human, to be honest with you. That they’re not being penalized because of making a complaint and everything. I think the key thing from an HR manager is that you’ve got to listen, and you’ve got to ensure that you pick up all the key areas, and ensure you’re there to support the employee as they’re going through this process, as well. Whether that’s through redundancy, or if it’s going through an investigation, et cetera, is that you’re there for them.

Genevieve: What’s your HR responsibility to your employer? Where does that fall in the process?

Helen: That’s again, an important side, of course, and that’s ensuring that we’re doing what’s right for the business and we’re doing it for the business needs, as well. We’ve also got other employees we have to consider, as well in reference to this, and we’ve also got policies and procedures to keep, as well, so it’s very important.

Genevieve: You’ll have a process, you’ll have a framework for yourself to go through? Tell me how that’s arrived at.

Helen: It depends on the incident, and what we were talking about in reference to unfair dismissal, but my process is that we need to ensure that we’re talking and we if talk about a complaint, or we’d look in at some kind of instant this happened, is talking to the individual first and getting all the facts. Then the process is then to investigate, then to thoroughly look at the outcome of that, and to make a definition to ensure that decision is from a business point of view, but also from a humane and individual point of view as well.

Genevieve: That’s an important point to pick up on because we’re talking about process here and fair procedures, but these are very human situations. People are often very angry, they’re very hurt, they’re possibly very fearful about the future, so how do you approach the emotions that are involved?

Helen: The way you approach that is very much, and I always say you need to listen to the individual. You need to be there for the individual, but also be very clear, as well so the individual knows what’s going to happen next and that you’re there to support them. Also to gather any additional support that they need as well to go through the process, so they’re not feeling like they’re going through it alone. That you’re actually there to support them, as well.

Genevieve: One of the complications there from your HR manager point of view would be that people’s emotions don’t necessarily align with how the case is playing out in the effectual and procedural sense?

Helen: Yes, but you adapt, basically, in reference to that. You adapt your support and everything in reference to that as well. It’s very difficult. You’re dealing with people’s lives at the end of the day, so it’s very important that you as an HR, you understand that and you don’t become very robotic to all these things. Is to ensure that you keep very level based with it, and ensure that you’re always talking and listening, and you have an open-door policy in reference to these situations.

Genevieve: All the employment patterns are changing. Things like social media are increasingly relevant in the workplace, how does HR need to respond to that with regard to what’s fair and unfair in dismissing the employee?

Helen: I think that HR is always evolving, processes all the time you have to do that. As you say is like social media is such a big area now, and that’s opened many doors in reference to concerns for HR as well as benefits. Of course, the concerns are, is that it’s just media that’s just open to the whole world. It can have such an effect on a business, if it’s these negative remarks made and also positive things when it’s a positive thing, but in reference to HR, we need to deal with that, because there’s a lack of control from a business of what people can put on their social media. It’s ensuring that we are developing and ensuring that we’re training our staff to ensure that they understand what their obligations are when it comes to their own social media.

Genevieve: Preventative action and also consistent approaches by the sound of it?

Helen: Yes. Also, as I say, is that you just need to keep reviewing and reviewing all the time in reference to that.

Genevieve: Also, a good outcome, as far as you’re concerned, how do you measure whether things have worked out well if you’ve got an unfair dismissal letterhead?

Helen: From an HR point of view, that you feel that you’ve been– and I keep saying, you’ve been fair. You’ve followed the process, you’ve done a thorough investigation. You’ve done all you can to cover basically those key areas, and ensuring that you’re taking the business consideration in hand and also the individual’s as well. The decision then can be made quite fairly.

Genevieve: Which is not necessarily the same thing, is everyone being happy?

Helen: No.

Genevieve: That’s something you have to take on board.

Helen: Totally. There’s not an agreement at the end of it that the employee will walk away his happiest, but at least you’ve been fair with that, and you’ve done that, as I keep saying the investigation. Is that you’ve done a thorough investigation, you’ve done key areas as well you’ve looked at, because what more can you do in reference to ensuring that you come to that decision?

Genevieve: Helen, thanks for your time. Thanks for your expertise.

Helen: Thank you.

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Genevieve: Rebecca Richardson is part of the Bradley Allen Love employment law team. She’s got a background in the community sector. She focuses on protecting the rights of employees by assisting them with letters involving underpayment, unfair dismissal, adverse action discrimination. Rebecca, thanks for being part of the podcast.

Rebecca: Not a problem Genevieve.

Genevieve: When has a person been unfairly dismissed? What are the legal definitions around that?

Rebecca: Okay, so essentially, the easiest way to put it, is that a person has been unfairly dismissed if firstly, they’re eligible for unfair dismissal. I think we might talk about that a bit more later, but most importantly, if there is not a valid reason for the dismissal, and, or if there has not been a fair process. You can have one or the other, but if you don’t have both, then it’s unfair.

Genevieve: Sometimes these things come first off as a redundancy, so it’s important to distinguish between a genuine redundancy and one that isn’t genuine. Talk to me about how that comes into an unfair dismissal matter.

Rebecca: Yes. Definitely. A lot of the time employers offer redundancies as an easy way out. Sometimes they think, “We just need to get rid of this person. You know what? If we offer them a redundancy, they’re likely to be happier.” Because there’s more favourable taxation on a redundancy. They’re less likely to file for an unfair dismissal application because you can’t get unfair dismissal if it is a genuine redundancy. Having said this, often, if you are working upon redundancies, or confecting the redundancy, the employee will notice and still file anyway, so the employer will have some jurisdictional objections to the application. It’s open to the employee just to argue that it wasn’t genuine, and that’s the reason why they are eligible for unfair dismissal.

Genevieve: Say it does meet the criteria of unfair dismissal, that’s the question at hand. How many warnings does an employee need to receive before dismissal, and what’s the length of time on those warnings

before they expire.

Rebecca: I think this is similar to what Helen was saying in terms of it really does depend. It’s really fact-specific. In some circumstances when you are terminating an employee based on their performance than in reality, there should be quite a bit of warning for a performance-based dismissal. “You’re not really getting your work done. You’re not hitting your targets.” You’re going to want to talk to the employee about that. This is all going back to making a fair process. It’s definitely valid for an employer to terminate an employee if they’re not hitting their targets or their goals or they’re just not doing a good job.

They need to let the employee know that they’re not doing a good job so that the employee has some time to rectify this. No matter what and almost no matter how many warnings an employer gives, an employee is always going to argue that it still wasn’t fair, it’s not enough time. It’s all about just being objectively as fair as you can. There’s no magic number but I would say probably if it’s performance-based maybe one is not the magic number. You’d probably want to check in a couple of times and give an employee a genuine chance to actually improve their performance before you fire them because of it. Now having said that, if it is something like serious misconduct–

Genevieve: What is serious misconduct? Perhaps we could define that because clearly, that’s where this process differs between performance which is a fairly everyday matter and something very serious that necessitates the removal of the employee. What’s serious misconduct?

Rebecca: Serious misconduct is conduct which is inconsistent with the employment relationship. If someone does something that is so egregious, so inconsistent with the employment relationship that they need to be terminated immediately without notice, I guess this really depends on what industry you’re in.

Genevieve: Certainly criminal matters.

Rebecca: Well, perhaps. It depends. It really depends. There are some issues with terminating employees based on the outside conduct. For example, if you’re talking about a speeding ticket unless you are a truck driver and that’s your job, I’d say that you probably can’t terminate them because of that. Maybe if it’s a very national murder case, you might have some sort of leg to stand on.

Genevieve: Are casual employees covered by unfair dismissal laws?

Rebecca: Not technically. If you are a true casual employee, then you are not eligible for unfair dismissal. However, if you are a casual employee who has been systematically and regularly employed for, I forget, it must something along the lines of 12 months or so then there’s a possibility that you are actually not a casual employee and you might be better classified as a part-time employee.

Genevieve: We have seen some discussion and questions around that very notion at the moment as to what constitutes occasional employees.

Rebecca: Absolutely.

Rebecca: Partly because the increasing casualization of the workforce in Australia– It’s sort of a catch-all so that employers can’t just employ everyone as a casual employee and then dismiss people as they wish.

Genevieve: On that, are there different rules for small business employed? Do these matters vary according to the size of the employers?

Rebecca: Yes. Generally, to be eligible for unfair dismissal, you have to be under the money threshold for the employee which is $142,000, that’s $142,000 salary excluding superannuation and you have to have been employed for at least six months so continuous employment for six months. If you are a small business, then that minimum employment period is actually 12 months. Before 12 months you can dismiss an employee pretty much for no reason. Having said that, there are still some dangers. You still have to be cautious in terms of making sure you’re not breaching the contract. You’re also making sure that you’re not terminating someone on the basis of a particular attribute that they may have.

Genevieve: There are protected attributes, aren’t there?

Rebecca: Protected attributes or workplace rights.

Genevieve: What are the protected attributes?

Rebecca: Things like gender, age, race, sexual identity, those sort of things so general discrimination, disability. But also, if someone has exercised a workplace right for example if they have made a genuine complaint or an inquiry about their workplace. For example, if I go to my boss, “I have not received wages for a month,” and he goes, “Right, you are out.” That’s a genuine complaint or inquiry and I’m clearly being fired because I’m acting up about it. You can’t fire someone for any of those protective reasons.

If the answer is that honestly someone is just not gelling in your workplace and for most employers, if it’s under six months or for a small business employer if it’s under 12 months then you can dismiss them. Now a small business workplace is a workplace which has less than 15 employees and that includes casual employees again who are being employed on a regular and systematic basis.

Genevieve: What about some of these newer trends that I discussed with Helen that are blurring the boundaries between what takes place inside and outside the workplace? We’ve talked about casual employees but what about social media involvement, for example? What’s changing in how those digital innovations affect unfair dismissal cases?

Rebecca: It’s pretty fascinating. We do work here for both employees and employers. We see this a lot from both sides. We have a pretty strong view at this firm that your external conduct outside of the workplace should not lead to adverse action or dismissal within the workplace. Now there are some exceptions to that and a lot of it depends on whether or not you are obviously representing your employer outside so if you stand up and say, “I am an employee of my company and I think this is the view of my workplace,” then that’s obviously going to be problematic for the employer but at the same time this happens all the time. I actually have an interesting if you would be interested.

Genevieve: No, problem. Go ahead. I’m interested in some of the casework around this because it’s very much an involving field. What have you got to tell us?

Rebecca: The case is Somogyi and LED Technologies. In this particular case, the applicant posted a status on Facebook during his lunch break and his status read, “I don’t have time for people’s arrogance, and you’re not always right. Your position is useless. You don’t do anything all day. How much of your boss’s cock did you suck to get where you are?”

Genevieve: Right.

Rebecca: Yes. I’m sorry.

[laughter]

Genevieve: We gave a content warning. Go ahead.

Rebecca: Sorry. Content warning indeed. As you’d understand, co-workers saw this status, pretty concerned, and they alerted the management immediately. Management immediately terminated the employee. They saw red. You can understand it’s pretty inflammatory stuff. It does seemingly relate to employment. Fascinatingly in this case, the applicant argued that he wasn’t given a case to explain himself, which is true he wasn’t. He was terminated on the spot and the reality was that he was actually not posting about his workplace. He was posting about his mother’s workplace. He was posting in classic defense of his mother, and that makes sense.

Genevieve: That goes right back to that question of process and following investigation.

Rebecca: Right. Exactly. Exactly. The commission held that it was an unfair dismissal. I think the applicant in this particular case got some compensation for that. The primary remedy for unfair dismissal is actually reinstatement but the reality is that it’s very rare that the employee actually gets reinstated just because for example in this circumstance the employment relationship is just fractured.

Genevieve: Irretrievably fractured.

Rebecca: Irretrievably fractured. You don’t want to have that person back and most of the time that person doesn’t want to be back.

Genevieve: Just on that finally perhaps, for employers, what’s the maximum amount of compensation that an applicant can receive in terms of the risk that an employer is facing for failing to follow due process? What can the outcomes be?

Rebecca: I always like to think of the worst-case scenario for an employer in two ways actually. I guess there are three things. The very worst-case scenario is reinstatement. No employer wants that. It would be terrible. It would be awful, it would be incredibly disruptive and just embarrassing for everyone involved.

The second worst would be six months of the employee’s wages, the top being $142,000. What’s that? $71,000? That’s the worst in terms of damages. Then the final thing to think about is publicity. Once you hit a hearing, it’s all public. That definitely deters a lot of employers.

Genevieve: I’m just going to bring Helen back in here. Helen, hearing about this from the legal aspect, are there some questions from you for Rebecca that arise out of that discussion?

Helen: I suppose my question is more from a process point of view. When you are doing something like take for example your case at the moment. You’re an HR manager and you’ve seen that. From a process point of view from the investigation to disciplinary, do you feel it should be a different person that does the investigation, that does the disciplinary to make it a fair system?

Genevieve: Transparency in governance, is that what you’re asking right there?

Helen: Yes, exactly. What you tend to find sometimes is it’s the same person that does all.

Rebecca: Well, I think it depends. If you are a small employer, then you may not have as many people as you have to do an investigation. Generally, it would be better to try and avoid bias in the investigation, but remember that at the end of the day, all investigation needs to prove or that an employer needs to be satisfied or is that on the balance of probabilities, the misconduct occurred.

Genevieve: Preventative action in terms of having processes in place, and having thought through scenarios is probably what you’re getting at there.

Helen: Yes and I also think as well as that, I don’t think in a lot of investigations yet it’s actually happened but sometimes it’s looking behind why it’s actually happened and the reason behind it is work and sometimes with some of the cases that have come out, that are on the cases that you’ve spoken about as well, is there are things that are underpinning why they’ve happened from an investigation point of view. That’s why we mentioned earlier doing a thorough investigation to ensure you get all sides.

Genevieve: Thank you both very much indeed. You’ve heard there from employment law specialist Rebecca Richardson, who works at Bradley Allen Love and from HR manager Helen Parrot. We’ve been discussing unfair dismissal. It’s part of the podcast series for the HR Breakfast Club. Look for us online at hrbreakfastclub.com.au. We have a series of conversations with HR specialists and lawyers about current issues in the HR and employment field. If you’d like to ask questions, suggest an idea or perhaps even offer yourself up as a talent for the series, we would love to hear from you. I’m Genevieve Jacobs. Thanks for your time.

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