Will That Get Me Fired? The 10 Tests Every Employee Needs To Take

Posted March 3, 2014, by Marni Williams

Like me, you might have heard of more than a few colourful unfair dismissal cases: an employee fired from freight company Linfox for discriminatory comments he made on Facebook outside of work hours; the employee who was fired for calling his boss a ‘wanker’; the case of the government employee who used an anonymous Twitter account as a platform from which to criticise department policy; the 25-year-long employee with a medical problem who urinated in a drain outside their factory; the worker who was terminated after drinking two beers on his lunch break; the senior manager who archived pornographic material at work… You get the picture: the list goes on and on and on.

Of course not all dismissals are quite so intriguing, but many are eventually found to be unfair. So how do you know if you’ve crossed the line? We can learn a lot from what has happened so far.

Some may be stranger than fiction, but these cases actually set precedents

The two recent cases involving Linfox employees highlight just how tricky it can be to define what makes a sackable offence. In one Linfox case, an employee who persistently used his mobile phone at work was found to be fairly dismissed because it was in breach of company policy. However, another Linfox employee, who was sacked for making what were seen as sexist and racially vilifying comments against his managers on Facebook, was reinstated due to his long service and his company’s lack of social media policy at the time.

While we might be tempted to read these cases as great drama, we shouldn’t forget that they actually relate back to our own livelihoods. The Fair Work Commission (FWC) is the place with the power to influence this: it’s Australia’s national workplace relations tribunal and it decides whether a dismissal is ‘fair’. In the 2012–2013 financial year alone they published 11,673 decisions, many of which are now serving as benchmarks for future cases.

You have to have your own back

The FWC used to spend a lot of their time mediating between employers and unions on industrial action and approving collective enterprise agreements, but with more employees on individual agreements these days, they are spending 17 per cent more time with single cases. Not only do individuals need to lodge their claims for unfair dismissal themselves, most of those people represent themselves at hearings. In today’s workplace you need to take responsibility for your own rights.

How does the Fair Work Commission use its powers?

The FWC judges all unfair dismissal claims by asking whether the dismissal:

  • was harsh, unjust or unreasonable, and
  • was not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business), and
  • was not a case of genuine redundancy.

I’ll soon unpack this further with 10 tests you can take to see whether your dismissal (real, or potential) could be considered fair. The fact is, though, that even the FWC is refining their definition of ‘fair’ on a daily basis. The FWC has the power to order the employer to reinstate the employee (if bridges haven’t been horribly burnt already), and/or for the employer to pay compensation to the employee. They assessed 36,616 applications last financial year alone with 18,991 resolved at hearings and conferences. That’s a lot of judgements for us to learn from!

What is a ‘valid reason’ for dismissal?

In order for the FWC to rule a ‘valid reason’ for dismissal it must be ‘sound, defensible or well founded’. Sounds logical, right? This is opposed to ‘capricious, fanciful, spiteful or prejudiced’ decisions – those few words are probably reminding you of some questionable firings you’ve witnessed along the way.

That’s why it’s important to pin down that elusive line. In an attempt to do so I’ve reviewed the FWC’s recently published Benchbook of cases and have come up with these 10 tests. And it’s not just a checklist to review once the worst has already happened. If you take note now you will not only be less likely to overstep the mark, you will also know what your rights are if you’re ever accused of having done so. So take note, it’s your livelihood after all.

  1. Would your dismissal be considered ‘harsh’?
  2. Would your dismissal be considered ‘unjust’?
  3. Would your dismissal be considered ‘unreasonable’?
  4. Would stealing that stapler be ‘serious misconduct’?
  5. Can you actually do your job?
  6. Have you been able to defend yourself?
  7. Is your boss likely to be inconsistent?
  8. Is what you get up to after work going to affect your job?
  9. Are you consistently failing?
  10. Are you eligible to take your unfair dismissal case to the FWC?

Still have doubts? Here’s what the Fair Work Ombudsman told me:

'When it comes to termination, employees should ask themselves whether their behaviour could come into conflict with their employer’s expectations of how they should behave, or damage the reputation, profitability or viability of their employer’s business. If the answer is yes, or even unclear, employees would be wise to avoid carrying out that behaviour, or seek advice about it first, particularly if it could risk damaging their employment prospects.'

Fair Work Ombudsman spokesperson, 28 February 2014

As well as unfair dismissal, there are different kinds of protections available, such as anti-discrimination, so make sure you get some advice from the Commission before you lodge your claim.

If you’re not sure of your rights, you can always contact the Fair Work Ombudsman directly to see where you stand. They get about 25,000 complaints a year, so you’re not alone!

Oh and for the record, the guy who called his boss a ‘wanker’ in an all-company email was found to be fitting in with existing company culture, judged on their previous use of emails. He was awarded $62,000 in compensation, but with a 20 per cent deduction on account of his own ‘contribution to the situation in which he found himself.'

There’s no doubt the line will always move, but we can always learn from other people’s mistakes.

If your job isn’t working for you then maybe you should try to get ahead of the game by re-skilling. And if you’ve already found yourself terminated, then you might like to take some advice from some people who know about rejection – our politicians.

Test 1: Would your dismissal be considered ‘harsh’?

A dismissal could be considered ‘harsh’ due to the economic and personal consequences faced by the employee on account of losing their job, or, particularly, where the decision to fire the employee is considered an overreaction. If you don’t think the punishment fits the crime, then you may have a case to keep your job.

Case examples: A corrections officer was fired for taking toilet paper to an inmate during lockdown. This was in breach of the employer’s policy, however, the employee claimed that another employee was not dismissed for the same conduct in comparable circumstances. The FWC found that not only was the conduct comparable and the treatment different between the two employees, but also that the termination was harsh in the circumstances. The Department of Human Services was ordered to pay the former employee $20,419 in compensation, which represented a 20 per cent deduction on possible compensation due to the employee’s misconduct.

An employee had worked for Allied Mining Services for 28 years. After some contractors had been working on a water pump they left their safety locks in place, preventing the water from flowing. The employee checked along the pipe to ensure no one was still working on the pipeline, and then removed the safety lock. This was a breach of the safety rules of the employer, but due to the long track record of good service without safety breaches, and the employee’s remorse, the termination was found to be harsh and the employee was reinstated.

Test 2: Would your dismissal be considered ‘unjust’?

Getting fired might be considered ‘unjust’ if you weren’t guilty of alleged misconduct.

Case example: An employee at IGA Distribution was fired for causing a forklift to collide with another forklift. Due to the seriousness of the health and safety risks, the dismissal was found to be valid, but the termination was found to be unjust because the employer was ‘wrong in accusing the employee of deliberately causing the accident.’ The employee was reinstated, albeit in a new position that was to be ‘no less favourable’ to him.

Test 3: Would your dismissal be considered ‘unreasonable’?

Termination based on serious misconduct is ‘unreasonable’ if the evidence does not support the decision at the time it was made. If you are made redundant when your employer could have reasonably offered you another position, then your termination may also be considered unfair.

Case example: A maintenance worker was made redundant when Boral Window Systems outsourced maintenance to a labour hire agency. The employee argued that his employer did not consider him for other available positions and the FWC found that there were suitable vacancies elsewhere in the business at the time. His dismissal was found to be unfair.

Test 4: Would stealing that stapler be ‘serious misconduct’?

The Fair Work Regulation 1.07 defines serious misconduct as conduct that is:

‘Wilful or deliberate and that is inconsistent with the continuation of the employment contract. It is also 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.’

It goes on to list ‘theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract’ – so there is plenty of room to move really.

Case examples: A Telstra employee was accused of having sex in a hotel room in front of colleagues while on a business trip. There was an investigation conducted by her employer after a complaint was filed, and the employee lied about her conduct and her recollection of what had happened. It was found that the questions the employer asked were reasonable and that while the conduct itself might have been of a personal nature, the employee’s dishonesty ‘destroyed a relationship of trust and confidence’.

Serious misconduct doesn’t have to be on a grand scale, either. Some examples include a butcher who would not remove his eyebrow ring which was considered to be non-compliant with a lawful direction of his employer, a Jupiters Casino manager who placed a bet at a TAB within the casino complex and a Hoyts employee who took an item from the candy bar without paying for it and when questioned about the incident, lied to management. Despite the bite-sized nature of the theft, the cover up amounted to ‘serious misconduct’ and therefore it was deemed to be a valid dismissal.

When we consider that a Coles employee who took a few spoonfuls of Milo home to mix his own drink before consuming it at work, and for whom a case of dishonesty could not be mounted, was reinstated, it seems that ‘serious misconduct’ is a matter of intent.

Test 5: Can you actually do your job?

You can’t be dismissed due to a temporary absence for illness or injury for up to three months, or up to three months in total over a 12-month period, or where you’re on paid personal/carer’s leave for the duration of the absence. However, if there is medical evidence that you are unlikely to be able to return to your duties, this could have some bearing on being terminated.

Capacity also includes your ability to do the work you were employed to do. It’s tested not by an expectation of your personal best, but of a satisfactory performance when viewed by an objective party.

Case examples: A branch manager at a bank was unable to lead his team to adequate sales and these were tracked through a performance management process. The FWC concluded that there was a valid reason for his termination. However, because the employer didn’t stick to its own process and warn the branch manager that his employment was at risk, it was found that he was unfairly dismissed.

Regarding physical capacity, a brewery technician with a congenital health issue was placed on restricted duties. After medical investigations undertaken by the employer, the technician was terminated due to a lack of capacity to perform his role. This was found to be fair. 

However, a paramedic was absent from work for seven years after injury for physical and psychological reasons. Because she was not given an opportunity to respond, and subsequently two medical practitioners suggested that she could return to restricted duties after a period of training and supervision, the dismissal was found to be unfair.

Test 6: Have you been able to defend yourself?

Employers have to follow a code, which instructs them to give written warning of dismissal before it occurs. Many believe there to be a requirement for three written warnings, however this is not the case and just one is sufficient for your employer to have properly consulted with you. And, they don’t need to supply written warnings if your conduct is considered to be ‘serious misconduct’.

If your employer is considering dismissal then they are obligated to give you an opportunity to respond to the warning and rectify the problem. You are also allowed to have another person (though not a lawyer) present when the possibility of dismissal is discussed.

Case examples: In one case, three production workers accessed pornographic material via work email accounts, in breach of company policy. However, due to the lack of ‘procedural fairness’ in the termination process and the employer’s unwillingness to reflect on the workers’ remorse, the dismissals were ultimately found to be disproportionate to the cause, and therefore unfair. Even so, the order by the FWC was that the employees should be reinstated to their positions within 14 days, but without compensation for their lost income.

There was also a case concerning a 58-year-old, 15-year-long employee of Panasonic Australia where his relatively new manager had brought a pre-written statement to a meeting in which they dismissed him – this was deemed by the Commission to be unfair due to the predetermined nature of the dismissal. He was reinstated.

Similarly, cases where employees have been fired by email have also been found to be unfair, with compensation paid. Such a case was brought against Nestlé Australia when an employee was accused of harassing colleagues. He had also been convicted of several criminal offences. Whether the allegations were substantiated or not, the employee was awarded compensation because he was terminated by email and not given the opportunity to respond to the accusations or to attempt to rectify the situation.

Test 7: Is your boss likely to be inconsistent?

If another employee has engaged in similar conduct to you in the past and they were treated differently, the FWC may consider this as a relevant factor in determining fairness.

Case example: A store manager at Woolworths was terminated for consuming two beers on his lunch break. Woolworths’s policy was explicit that no alcohol was to be consumed during work hours and therefore his dismissal was found to be fair. However, an employee of Nationwide News was terminated after it was discovered he was drinking on his lunch break. Even though it was a breach of company policy, it was found that the dismissal was ‘harsh’ as the FWC took into account ‘recent policy change, inconsistent enforcement and the employee’s period of service’.                                            

Test 8: Is what you get up to after work going to affect to your job?

Clearly from the case of the Telstra employee we can see that if what you do outside of work hours erodes trust with your employer, then you might find yourself rightfully terminated.

Case example: A Good Guys salesman hadn’t been correctly paid his commissions for a month. Then, after a short period of rectification, he was again not properly paid for a month. He emailed his operations manager with his concerns, spoke to her personally on a number of occasions, and one evening posted against his status: ‘wonders how the f… work can be so f……. useless and mess up my pay again. C..ts are going down tomorrow.’

According to the case notes, the Facebook page was set to maximum privacy settings with only his select group of 70 friends able to see what he had written. Nowhere had he mentioned the Good Guys and there were approximately 11 co-workers in his group of Facebook friends. That same day, he was contacted by his area manager, while absent from work, to inform him that the company was taking the comments as his letter of resignation. The employee went to work the next day and explained to his superior that he did not intend to resign, to which his superior reportedly replied: ‘resign now or I will sue you.’ A letter of termination was received some days later and three weeks’ pay was transferred. He claims he did not receive commissions owed for the 8 weeks in question.

The Commission’s statement was clear: ‘The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor [the operations manager] was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.’

It was found that the employer notified the employee of the reason, gave him an opportunity to respond, did not refuse a support person to be present, and that the employee should have engaged with the Good Guys’ dispute-settling procedure or the Fair Work Ombudsman rather than threaten his manager. The employee’s application was dismissed.

Test 9: Are you consistently failing?

Ok, this one is probably the most common fear of all employees – can they fire me for just not being good enough? The answer is yes, as long as they give you a chance to improve your performance over a ‘reasonable period of time’.

To the FWC, performance is ‘diligence, quality, care taken and so on’, leaving a whole lot scope for underperforming employees to get the boot. The test of fairness is in the warning. Warnings – and there need only be one – must state that your employment is at risk if your performance doesn’t improve. The employer needs to have made clear communication, either verbally or in written form, to persuade the employee to do something about the situation.

Case examples: A Donut King staff member was fired from her casual role after five years. She was terminated for alleged poor performance but had received no warnings. It was found that this was unreasonable and she was awarded four weeks’ pay as compensation.

However, a machine operator in a wrapping factory was absent from work, due to illness, for six months following an argument at work, there were then meetings held to address work quality, attitude and late attendance. There were five written ‘counsellings’, four written warnings, informal counselling, and a final written warning. Finally, when the employee took photos inside the factory, in breach of the site guidelines and rules, the operations manager had a meeting in which he advised the worker that he believed he had no choice but to terminate his employment, and followed up by asking him if there was any reason why he should not do so. The termination was found to be valid.

Test 10: Are you eligible to take your unfair dismissal case to the FWC?

Generally, if you have an employment contract (even verbal), earn less than the high income threshold (currently $129,300 per year), you have worked for your employer for a minimum period of employment (between six months and a year depending on your type of employment), and you get your claim in within 21 days of your dismissal, then you can lodge a claim with the FWC. 

Feeling stressed out at work? Check out our tips on managing workplace stress

Marni Williams

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