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Solicitor on 2GB discussing Employment Law

Inappropriate behaviour at work

Tuesday, 9 August 2016 


            CS – Chris Smith /EH –Ellen Hitchin /C1,2,3, etc – Callers 


CS       Well we’re talking all things employment law today. A very popular issue and topic. So if you’ve got a question, jump in nice and early. We’ll hear about the employee that received $25,000 in compensation after being sacked for looking at bikini models while he was at work. And how about the Pokémon Go game which is becoming a bit of a workplace issue. Thanks to Turner Freeman Lawyers and their Legal Matters segment, we have a $100 Westfield Voucher to give away. I’ll give that away to a caller between now and 2:00 o’clock, and you should be reminded that Turner Freeman Lawyers provide a range of specialised legal services, employment law, compensation and negligence law, asbestos litigation, superannuation and disability claims, family law, wills and estate and property law. Their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and the Gong (Wollongong). They also have offices in Queensland, South Australia and WA. And if you’ve got a question for our expert today on employment law, give us a call right away. My suggestion is to get in early. 131 873. Ellen Hitchen from Turner Freeman Lawyers is in the studio this afternoon. This is….. what is this Ellen? This is episode number 2 for you?

EH      Three.

CS       Three? You’re an old hand now. You’d have no nerves, you’d be totally relaxed. You’re just ready for any other call wouldn’t you? 

EH      Something like that.

CS       Kind of. Okay. An employee of a car dealership in Perth has received $25,000 in compensation after he was sacked for looking at pictures of bikini models while he was working. Why is this an unfair dismissal?

EH      Well this was one of those strange cases. Obviously the decision seems a little odd to the lay listener. It’s one of those cases where the Commission found that there was absolutely a valid reason for his dismissal. The looking at pictures of women in swimwear, particularly in circumstances when this particular employee was a first and final warning for accessing pornography from his workplace computer.

CS       Right.

EH      But the issue in this case was that there was almost a complete lack of procedural fairness in the way that the employer handled the termination. Basically, the employee was ambushed; asked to come to a meeting; he had no notice or warning of what the meeting was about. He was told that he breached the policy and given that he was already on a final warning in relation to his internet access he was told he was being terminated. But it wasn’t actually until he commenced proceedings in the Fair Work Commission that he found out what site he had apparently been looking at and what the details of the allegations against him and given that he wasn’t made aware of the reasons for termination and wasn’t given a fair opportunity to respond to those allegations and give his side of the story, the Commission determined that it was an unfair dismissal in the circumstances.

CS       So before you march someone out the door, you better not only tell them what for

EH      You’ve got to give them an opportunity to respond and a real opportunity

CS       Right.

EH      Not just a I’ll give you 5 minutes to state your case. I think that.

CS       Geez that’s a good lesson for employers isn’t it? 

EH      Hmm. I think the best case would be to provide someone with preferably in writing notice of allegations that are made against them; notice that there has been consideration of their termination and give them an opportunity to provide a real response. Because you never know, there might be a valid reason;  there might be circumstances we are not aware of

CS       But it’s about procedural fairness.

EH      Absolutely. You need to have a valid reason for terminating someone and you need to provide them with procedural fairness; to give their say.

CS       So how do you work out that an employee in those circumstances receive $25,000 as opposed to $2,500?

EH      Well there’s lots of factors that the Commission take into account. There’s a maximum that can be awarded for any unfair dismissal and that’s 6 month’s salary. And the $25,000 in this case worked out to be less than 2 ½ month’s salary for the employee in question. He was on quite a high salary; he was quite a senior member of staff.

CS       Right.

EH      But the Commission took into account how long it would be likely he’d remained in employment with that company if he hadn’t been unfairly dismissed and also the fact that he had found new employment, although at a significantly lower salary.

CS       Okay. Sean has a question for you Ellen. Go right ahead Sean. 

Caller 1 – Sean

Sean    Good afternoon. How are you?

CS       Very well. 

EH      Hi Sean.

Sean    I’m a long term casual employee. I’ve been there for almost say 2 years now. Now it suits me at the moment because it’s working for my lifestyle, but they are going to get rid of a few employees soon. Do they need to give people notice if they are casual or zero – just walk out?

EH      That’s a tricky question when it comes to long term casuals because in the strict sense of the word, a casual employee has no entitlement to any further shifts. In the same way that they can just not turn up for work one day – it’s strictly a day by day engagement between the employee and the employer, but in circumstances where you’ve been there for as you said, 2 years, I think – if you could be ……  if you could expect to receive regular and systematic shifts from that employer – if you have the same shifts routinely, and an ongoing expectation that work would be provided, then you are certainly entitled under Unfair Dismissal laws to challenge any termination that was unfair in the circumstances and I would have thought in those circumstances you would be entitled to notice of an impending termination if that is a decision made.

Sean    Right – so I’ve been there as I said for 2 years and the last say 8 months has been like every day constant – haven’t changed the hours – day’s work – I’m a bit worried that they are going to between now and then they are going to get rid of people and I’m a bit worried where I stand that’s all – it’s all good.  I’ll figure it out…

CS       You can go on from there?

Sean    Absolutely.

CS       Good luck Sean.

Sean    Thanks mate. 

CS       Alright. Now the Pokémon Go craze. It’s becoming a workplace issue at work as well?

EH      Well, it’s quite interesting. Obviously there’s been lots of stories in the press about Pokémon Go – affecting all sorts of areas of public life.  But recently in Australia the logistics company actually had to issue a national safety alert to its employees and contractors because it had noticed them playing the game on work … on work time – on their phone and there’s obviously significant risks around that particularly in the areas of health and safety because this was a you know a logistics company that has a lot of heavy machinery around – you know people with headphones on and if there’s people wandering around looking at their phones and not paying attention to that

CS       looking for a Zubat

EH      To hazards in the workplace…. that there’s real significant risks of injury.

CS       It’s interesting some of the workplace servers tend to cut out your access as an employee, if’ you’re on WI-FI, to you know – Instagram and all the social media platforms, but they are only just catching up with Pokémon Go.

EH      That’s a problem with technology.

CS       It is.

EH      It’s always one step ahead.

CS       And everyone else is one step behind. So this is becoming a workplace issue which is interesting. Roxy. Go right ahead. Ellen is listening.

Caller 2 – Roxy 

Roxy  Oh hi Ellen and Chris.

CS       Hi.

EH      Hi Roxy.

Roxy   I started working at a quite a large residential project marketing company and I was there for about a month and just brought into the office one day and just told to you know – pack up my things and it’s not just working out and told to leave.

EH      Look unfortunately you don’t have any remedy in unfair dismissal unless you have been with the company for at least 6 months and in a case of a small employer with less than 15 employees for 12 months.

Roxy   Yeah.

EH      So, although I said earlier that it’s a good practice to let people know the reason for the dismissal and give them an opportunity to respond, in your circumstances you simply have no remedy in unfair dismissals. So I presume you were on a probation period as well?

Roxy   I think it was 5 months. Yes.

EH      Yes – it’s usual but probation periods are usually at least 6 months because that’s the period of time you need to serve to have a remedy in unfair dismissals. So no circumstance – there’s really nothing much you can do unless you felt there was an element of discrimination or some other reason for the termination….. but it’s a bit hard to make those claims when they don’t give you any reason at all.

Roxy   No. Not at all.  It was like I was working you know to my full capacity – honestly – I had no training provided – did everything on my own – really – you know – did everything I could to – you know – exceed in the company and just – there’s nothing but you know as – there was like 80 people that they got rid of in like about a month and every month they would just turn people over.

EH      Perhaps it’s a cost saving exercise and you were just caught in the process.

CS       There are some companies of course who get rid of someone – anyone – just before the end of the financial year to clear the books and sometimes they use that as a way to get themselves started in the new financial year with a better balance but hopefully you’ll be right. What are you doing for a job now?

Roxy   I’m looking at the moment.

CS       Can I help with a $100 voucher?

Roxy   Ohhh, I’d love that.

CS       I’ll give you a $100 Westfield voucher Roxy.

Roxy   Thank you very much.

CS       Alright.

Roxy   Appreciate it.

CS       Yeah yeah. Go and should yourself at Westfields somewhere courtesy of Turner Freeman Lawyers and good luck job hunting. We’ll take a break. Back with Ellen Hitchen from Turner Freeman Lawyers in employment law, and your questions right after this. It’s 12 to 2.


 CS       9 to 2. I’ve only got about 6 minutes left for our Legal Matters segment with Turner Freeman’s Ellen Hitchen. We’re talking employment law. David. You’ve got a question for Ellen. Go right ahead.

Caller 3 – David 

David  Yes. Good afternoon.

CS       Hi.

David  The initial example opening the segment with regarding to the $25,000, just kicked something off my mind in this, but my stepson is actually going through a problem at the moment all bar the looking of the bikinis and the porn site etc. He’s still currently employed with his employer however he’s on light duties because he’s got a hernia and they’ve called him in to a couple of meetings and they’ve given him all these allegations and complaints against him. So he’s got in touch with me and said what should I do and I said just ask them to provide the dates and times etc. Long story short, we’ve actually emailed the company on 3 occasions, the head of the HR asking them to provide the details of these allegations. They haven’t even given us the courtesy of a response. Now the matter has actually been moved on to an outside agency to actually investigate these allegations because my stepson is actually saying he’s being targeted and being bullied in his particular workplace. Does that sound like we are following the right procedure and actually asking for these allegations in written form?

EH      Oh absolutely, you are entitled to ask for details of those allegations because how can your stepson possibly provide an informed response if he doesn’t know the details. So, it is definitely important to keep a paper trail of those things. If you’ve been requesting by email these details and getting no response, keep those emails. They may come in handy later on depending on the outcome from the external agency. I mean you would hope that the external agency would apply an unbiased view to the situation, but certainly at some point you should be getting details of those allegations so he can provide his response.

CS       Okay. Let’s move from David to Tanya. Hi Tanya.

Caller 4 – Tanya

 Tanya            Hello.  How are you?

CS       Very well. Go ahead. Ellen’s listening.

Tanya             Oh hi Ellen. I just wanted to know. I’m currently on sick leave and I’ve been diagnosed with a fairly serious illness and I’m in the process of applying for continuance salary and I’m just wondering because my employer pays my health cover. I’m just worried about how long if I’m off or an extended period of time, are they likely to dismiss me in any way – or you know – if that’s possible?

CS       That’s a good question.

EH      Well you can’t be dismissed for being sick and for taking a period of sick leave. So you would certainly hope not. Certainly they can’t dismiss you within three months, if you are on paid leave and if you’re dismissed because of the fact that you are sick, then you may have rights, not only in disability discrimination but also an adverse act in claiming fair work. So you certainly can’t be dismissed……you can’t be sacked because you are taking a period of sick leave.

Tanya             Okay

CS       Alright Tanya

Tanya             Oh thanks very much.

CS       Good luck. Shane. Quickly go right ahead.

Caller 5 – Shane

Shane              Um. It’s played on my mind over the years that I’ve been working at my company for 14 years where I am now. Previously I was working at a company for 18 years and their son got old enough and then he gave me dismissal on the spot and no longer service. I had the paperwork originally that I was full time employed. Is there anything that I could have done back then? Because apparently I didn’t know what to do and if there is anything that I can do now?

EH      I think you said you have been at your current job for 14 years and it’s obviously been at least 14 years since you were dismissed. So I’d say that any periods of limitation would have expired unfortunately, but certainly you a right to be paid long service leave if you’ve been in employment for more than 10 years and dismissed or resign if after 10 years.

CS       So what about this state of limitation? What is the time frame for when you can no longer make an application?

EH      That’s a really good question. It’s usually 6 years for pieces of state legislation. That might be something that I’d have to check up on. But it certainly wouldn’t be any longer than 6 years.

CS       Yeah. Yeah.

EH      It could be a shorter period.

CS       But for employers today – you’ve delivered a really good message. It’s about procedural fairness. So if you think someone’s done something wrong 2 or 3 times, it’s time to go. They’ve got to have the right to answer your allegations before you fire them

EH      That’s right. They may very well have a valid reason for the allegations – a valid excuse. You certainly want to avoid having this argument in the Fair Work Commission by you know dot ” i’s” and cross your “t’s”  then you should be fine.

CS       Fantastic. You want to get on with business. You don’t want to get into a court for months. Thank you so much for your time this afternoon Ellen. Very very helpful once again.

EH      Thanks for having me Chris.

CS       No problems. Turner Freeman Lawyers and Ellen Hitchen, employment law this afternoon. A completely different topic next Tuesday and looking forward to answering your question.


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