Deputy President Slams the Abuse of Anti-Bullying Provisions

Deputy President Sams of the Fair Work Commission (FWC) has dismissed a casino worker’s bullying application, warning it is not acceptable to use such claims as “a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes”.

Background and Outcome

An employee at Star City Casino claimed he was bullied by management after he breached the Casino’s mobile phone policy. He filed a stop bullying application with the FWC, claiming that he had been physically abused. He further claimed that the written warning he received was unjustified and also amounted to bullying.

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Instant Dismissal – care required

What is instant dismissal?

Instant dismissal (also known as summary dismissal) permits an employer to terminate an employee’s employment immediately. That said, this is only permitted where an employee engages in serious misconduct.

The Fair Work Regulations 2009 (Cth) define ‘serious misconduct’ as follows:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
(b) conduct that causes serious and imminent risk to:
(i)  the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

Instant dismissal overrides the requirement of a notice period and therefore the employee is not entitled to receive their notice period.

Employers should be mindful to ensure they are not sacking an employee instantly without sufficiently serious grounds. This may expose them to claims for unfair dismissal should they instantly dismiss employees unlawfully or unreasonably.

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FWC Rejects Application to Merge with Hospitality Award and Reduce Penalty Rates for Clubs

In April, the Fair Work Commission (FWC) announced its decision in the application by Clubs Australia Industrial (CAI) to merge the Registered and Licensed Clubs Award with the Hospitality Award which would have effectively resulted in a reduction in Penalty Rates.

The FWC has dismissed the application. In dismissing the application, the salient comments from the FWC decision are as follows:

“……… there was virtually no evidence adduced before us of any particular benefit that would be derived from a reduction in penalty rates for the clubs sector through the sector being placed under the Hospitality Award. CAI did not adduce any evidence to the effect that overall employment or hours worked in the sector would increase if weekend and public holiday penalty rates were reduced.”

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6 Reasons why performance reviews may not be adding value in your business

Performance management and annual reviews are often met with a fair amount of resistance. They are often not viewed as a process that adds value to the business.

However, with the right attitude and approach to this process, performance reviews can be a tool that adds value and potentially increases productivity, workplace harmony and helps you achieve a return on your investment.

There are a number of reasons why your current review process may not be serving your business and achieving the outcomes you want.

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The Increasing Pressure on HR to Get it Right

When HR gets it wrong, the stakes are high. From unfair dismissal findings against a business to vicarious liability, the Courts and Tribunals in recent years have been critical in their decisions about the way that HR Managers and line managers have dealt with certain issues. Here we look at four key areas where practitioners and managers are most vulnerable and how to avoid these HR mistakes.

  1. Workplace Investigations

In the past couple of years, workplace investigations have become more common, and HR or line managers are usually tasked with carrying them out. However, acting as investigator requires a special knowledge, and the untrained HR manager or line manager might fall into procedural errors resulting in an unfair dismissal claim – or worse. There have been several such matters in recent times, including the Marriott matter that was reported upon in our last newsletter, and Parker Manufactured Products case that emerged in February.

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