It is not news to say that we are living in uncertain times which during which employers are forced to constantly evaluate the current and future operational needs of their businesses. The Fair Work Commission (FWC) has this week confirmed that the Coronavirus pandemic has seen a substantial rise in unfair dismissal and general protections dismissal applications compared to last year.
In this context, it is imperative the employers remain conscious that decisions about reducing employee hours, changing working patterns, standing employees down and redundancies are made in fair and equitable manner.
What do we mean by fair and equitable decision making?
Chief amongst employer concerns should be that these decisions are free from discrimination because of a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
In this context, let’s look at some recent cases involving claims of workplace discrimination and highlights the lessons to be learned from their findings.
Case 1: Religion not an operative reason for sacking labourer
Gibbons v C&M Plant Hire Pty Ltd  FCCA 849 (17 April 2020)
In April this year, the Federal Circuit Court found that, in terminating his employment as a labourer after just seven weeks employment, a company did not take adverse action against the employee because he was a Jehovah’s Witness.
The employee made multiple claims in relation to his employment, including that the company, and its Director, had discriminated against him during the course of his employment in that because of his religious views, his employer taken adverse action by “treating [him] less favourably in comparison to his work colleagues” because of those views.
The employee claimed that he had been subjected to a series of invasive questions by a fellow employee concerning his religion including questions such as: “what would you do it I stabbed you with a knife, would God save you?” And “what is wrong with you…why don’t you just go to a nightclub and see strippers?”.
He alleged that this series of questions were meant to demean, shock and distress or hurt and humiliate him. He alleged that he complained about this bullying and harassing behaviour to his manager and those concerns were, essentially, dismissed.
The Court did not accept that the employee made complaints to his manager of discrimination by his fellow employee. Further, the Court accepted that, if such complaints had been made, the employer had established that it had a practice to convene a meeting between the two employees to resolve the issues. There was no evidence of that having occurred. There was no evidence either, that the employer was otherwise made aware of the complaints (such as weekly staff meetings).
In dismissing his claim that he was treated differently from other employees by reason of his particular religious beliefs, the Court found that, in fact, the employee “did not endear himself to his fellow workers…[and he was dismissed] because of his lack of willingness to either follow instructions, or perform work in a competent and safe way. [His] poor work performance, lack of attention to detail and unpreparedness to follow instructions meant that others had to work harder to get jobs done.”
1.Be clear about the real and operative reasons for dismissal
It appears that the applicant in this case, was not an impressive or credible witness and that his evidence was almost wholly rejected by the Court. The case, however, stands as a reminder that it is imperative to make clear, both in your own mind and, ultimately with the employee, about the real and operative reasons for taking decisions about their employment.
2. Maintain a real time paper trail
It appears that in this case, the employer was able to gather and provide the Court with credible oral evidence that verbal feedback about the employee’s performance had been provided to him during his employment. It is best practice, however, to document in writing, in real time, conduct and performance issues and the action taken in response to that poor performance.
Case 2: Age discrimination during the hiring process
ABCC v CoreStaff WA Pty Ltd  FCA 893 (26 June 2020)
In June, a Western Australian labour hire company, CoreStaff WA, was found to have discriminated against a worker when it refused to hire the qualified 70-year-old grader because of his age.
In October 2018, a HR advisor from the contractor, Gumala emailed the labour hire company, CoreStaff, providing feedback on the grader, noting “we had his details already, he applied directly with us. He has all the tickets we are looking for, however, [his] age is a concern – 70 years old”.
The CoreStaff Area Manager replied “Wow didn’t know that however I would have found out eventually…yes will certainly keep looking.” Later that day, he then emailed the worker, stating, “Sorry…no joy with the role at Gumala due to your age mate.”
CoreStaff unsuccessfully argued that there was no refusal to employ the worker because there was no vacancy. Further, the Court found that CoreStaff manager was “influenced” by the HR advisor’s email, the evidence showed that he went on to undertake his own evaluation of the grader’s application and made the decision to refuse it, which was said to be “substantially based on the grader’s age”.
1.Don’t make age-based assumptions about capability
There’s a saying about making assumptions that I won’t repeat here, but suffice to say, it appears to ring true in relation to age based discrimination. Making assumptions about an employee’s abilities, their willingness to adapt to new technologies or their commitment to a role, purely based on their age, does not appear to make commercial sense (not to mention, it’s illegal). People’s reasons for continuing to seek employment are many and varied, as are their capabilities. Keep an open mind.
Case 3: Failure to investigate serious bullying and discrimination complaint led to constructive dismissal
Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd (2020) FWC 2996, 27 July 2020
On 27 July 2020, the Fair Work Commission declined an employer’s jurisdictional objection to an unfair dismissal claim by an abattoir worker who resigned following incidents of alleged bullying including a racial taunt, which he had reported to HR.
Broadly stated, in order to make an unfair dismissal application, one of the requirements that must be met is that the employee’s employment is required to have been terminated at the “initiative of the employer”.
Generally, where an employee resigns, they will not meet this requirement, unless the evidence supports a finding that they have been “constructively dismissed”. That is, (as the Commissioner noted) where, in this case, the actions of the employer’s Human Resource Officer and Shift Manager had the probable result of ending the employee’s employment, and that he had “no effective or real choice but to resign”.
Acknowledging the very high threshold for such a finding, the Commission nonetheless found that, having regard to all the circumstances, this was more than a case of an employee leaving an unpleasant work environment, because:
- The employee’s first language was not English and he had difficulty communicating in English;
- He had, to the best of his ability, raised serious bullying complaints about the conduct of his supervisor (who, amongst other allegations, had timed his toilet breaks and had yelled at him) and a trainer who had told him that “he was black” and she didn’t “want him working there”;
- Despite the seriousness of both sets of allegations, the allegations against the supervisor were not investigated at all and the allegations against the trainer were not investigated in any meaningful way. Further, the repercussions for the trainer as a result of the limited investigation were ‘manifestly inadequate’ in that she “received nothing more than a verbal warning”;
- The manner in which the outcomes of his complaint were relayed to him (on the floor of the work area after being taken off the machine) were ‘blasé’ and discourteous, given the seriousness of the allegations;
- The employee remained in a reporting relationship with the alleged perpetrator of bullying and in the same work area as the trainer;
- The employee took an extended period of personal leave “to rest and look after his health”, which the Commission said “should have been a red flag indicating that he continued to be distressed by the events he had reported, and was not satisfied with the outcome”; and
- On returning to work and expressing a wish to resign, the employer should have done more to assist him and to provide other options (such as further leave or access to an EAP), in light of the recent events about which they were aware.
1.Respond appropriately to complaints about misconduct, regardless of how they are made
It is noted that the Commission has not yet determined whether the employee was, in fact, “unfairly dismissed”. The finding should sound a warning to employers who do not respond appropriately to complaints of serious misconduct, including discrimination. The case implies that the employers should not stand on ceremony when such complaints are made (for example, insisting on a written complaint when the complainant had limited English). Where the employer has sufficient credible information on which to commence a thorough investigations of the complaint, it should do so.
About Brooke Hall
Brooke Hall has significant experience in the workplace relations area, having previously worked as a lawyer for 10 years at the now Fair Work Ombudsman. Brooke brings strong communication, investigative and analytical skills in the area of dispute resolution to Worklogic. Her strong client service focus and pragmatic approach ensures clients receive practical solutions to a range of workplace issues.
Worklogic has extensive experience in triaging and resolving workplace complaints. If you would like advice on a workplace complaint, you can contact Brooke for an obligation-free discussion via email or by calling (03) 9981 6500.
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