QLD EILS Seminar 13th June

EILS Seminar
Presented by:
Patrick Turner, Associate
Paloma Cole, Lawyer
13 June 2018
Review of
Developments
in Unfair
Dismissal

PRESENTATION OVERVIEW
Introduction:
1. Legislative overview
2. Trends at conciliation and hearing
3. Case law developments:
a) Costs orders
b) Permission to appear
c) High income earners
d) Casual employees
e) Fixed term employees
f) Medical incapacity
g) Health and Safety
h) Dishonesty
i) Sexual Harassment
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Review of Developments in Unfair Dismissal, 13 June 2018

LEGISLATIVE OVERVIEW
 Definition of ‘unfair dismissal’ (s385 of the Fair Work Act 2009 (Cth)
(the FW Act)) - the dismissal was harsh, unjust or unreasonable
 Factors to consider (s387 of the FW Act) – was there a valid reason for
termination, notification of reason, opportunity to respond,
unreasonable refusal of support person, warnings about unsatisfactory
performance prior to dismissal, size and expertise of employer
 Application to the Fair Work Commission within 21 days of dismissal
(same time limit for claims in the QIRC under the Industrial Relations
Act 2016 (QLD))
 Initially listed for conciliation (usually by telephone)
 If not resolved at conciliation, then matter proceeds to a hearing
 Available remedies: reinstatement or compensation (capped at 26
weeks pay or $71 000 dependent on salary)
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 Section 382 Fair Work Act (“FWA”) - person protected from unfair
dismissal if:
• completed minimum employment period (6 months or 12 months); and,
either
• covered by award or enterprise agreement; or,
• income under high income threshold ($142,000).
 Section 385 Fair Work Act (“FWA”) – Person has been unfairly
dismissed if:
• dismissed (terminated on employer’s initiative or constructive dismissal);
• dismissal was harsh, unjust or unreasonable;
• dismissal not consistent with Small Business Fair Dismissal Code (if less
than 15 employees); and,
• dismissal was not genuine redundancy.

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Section 387 FWA - In considering whether it is satisfied that a dismissal
was harsh, unjust or unreasonable, the Fair Work Commission (“FWC”)
must take into account:
a) valid reason related to capacity or conduct;
b) whether notified of that reason;
c) whether given an opportunity to respond;
d) any unreasonable refusal by employer to have a support person present;
e) if dismissal related to unsatisfactory performance -whether had been warned before
the dismissal;
f) degree to which size of employer's enterprise would be likely to impact on
procedures followed in effecting the dismissal;
g) the degree to which absence of dedicated human resource management specialists
or expertise in the enterprise would be likely to impact on the procedures followed
in effecting the dismissal; and,
h) any other matters that the FWC considers relevant.

2. TRENDS AT CONCILIATION AND
HEARING

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CONCILIATION TRENDS
 Unfair dismissal applications have remained steady at around 14,135
between 2016-2017
 Almost 4 out of 5 matters resolve at or before conciliation. This has been
consistent for the previous 6 years.
 17% of matters resolved prior to conciliation.
 63% resolve at conciliation
 16% resolve after conciliation and before hearing.

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UNFAIR DISMISSAL TRENDS AT HEARING
2016- 2017 2015-2016 2014-2015 2013-2014
Application dismissed
- dismissal was fair
125 130 161 175
Application granted-
award of
compensation
135 135 141 112
no remedy
6 7 10 8
reinstatement
10 12 12 9
Application granted- $
and reinstatement
15 18 15 25

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CASE UPDATES: COST ORDERS
Costs under Part 3.2: Unfair Dismissal
See section 611 and:
 Section 400 FWA – FWC can make cost orders if the other party caused those
costs to be incurred because of an unreasonable act or omission in connection
with the conduct or continuation of the matter
 Section 401 FWA – FWC can make order for costs incurred by the other party
if:
• a party engages a lawyer or paid agent as their representative; and
• the FWC’s permission is required under s 596 for the representative to act;
and
• costs were caused to be incurred because:
• the representative encouraged the person to start, continue or
respond to the matter and it should have been have been reasonably
apparent that the person had no reasonable prospect of success; or
• of an unreasonable act or omission of the representative in
connection with the conduct or continuation of the matter

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 Andrew Portelli v Baxter Healthcare Pty Ltd T/A Baxter Healthcare [2017]
FWC 2523 (9 May 2017):
• the respondent applied for costs after the applicant discontinued claim
• costs refused because respondent’s legal bill was unreasonably high
• Commissioner Johns noted it was "doubtful that all the costs charged
would survive a party-party costs assessment“
• Decision upheld on appeal
 Ms Robin Hansen v Calvary Health Care Adelaide Limited [2016] FWCFB
8162 (1 Dec 2016):
• Full Bench held that appeal was so devoid of merit or substance as to not
be reasonably arguable
• costs of $5,000 awarded against appellant in unfair dismissal appeal

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 Maria Girdler v Western Sydney Community Legal Centre [2018] FWC 10 (18
Jan 2018):
• reinstated applicant applied for costs because respondent decided at last
minute to drop jurisdictional argument
• application denied because respondent’s actions held to have made
proceedings more efficient
 Paola Marafioti v Gonzalez Pty Ltd T/A Mac's Crafts [2018] FWC 2873 (1
June 2018):
• applicant applied for her costs to be paid by the respondent and the
respondent’s lawyer personally because the lawyer failed to inform the
Commission or the applicant that the respondent would not press jurisdictional
objections
• Respondent and lawyer ordered to pay 30% of the applicant’s costs between
them because the lawyer’s actions were “unreasonable” and resulted in the
applicant and the Commission to deal with the jurisdictional objections that
were doomed to fail.

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CASE UPDATES: PERMISSION TO APPEAR
Section 596 FWA
 Representation by lawyer or paid agent generally only allowed with the FWC’s
permission
 FWC may grant permission to appear only if:
• it would be more efficient; or
• the person is unable to represent himself, herself or itself effectively; or
• it would be unfair taking into account fairness between the parties
 Lawyers and agents are not considered representatives if a bargaining
representative or if employed by the party or an organisation, peak council or
bargaining representative that is representing the party
 Exceptions to permission requirement set out in Rule 12 of the FWC Rules
2013

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 Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (17 Oct 2017):
• Full Bench found that a law firm's "substantial" preparation of Woolworths'
defence in an unfair dismissal case constituted legal representation at the
hearing for which they required permission even though a lawyer didn’t
appear as the company's oral advocate
 Dr Neil Stringfellow v CSIRO [2018] FWC 1136 (21 Feb 2018):
 DP Clancy clarified that the Fitzgerald decision ruling does not require
parties to seek permission to engage legal representatives to write
applications and submission, lodge documents and correspond with the
Commission in the lead-up to a hearing although the FWC may make a
direction to disallow such representation
 Permission not required to obtain legal advice in the lead-up to hearings.
FWC cannot disallow such legal advice

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 Michael Taylor v Startrack Express T/A Startrack [2017] FWC 6083 (20 Nov
2017):
• Respondent claimed their in-house IR team lacked sufficient advocacy
experience to defend case
• Commissioner Ian Cambridge denied permission and distinguished
Startrack Express from a small employer that might have "no staff engaged
in dedicated roles that deal with employment matters"
 Mr Michael Knight v Commonwealth of Australia (Australian Criminal
Intelligence Commission) [2017] FWCFB 3896 (25 July 2017):
• Full Bench confirmed that the Australian Government Solicitor can "as a
matter of right" represent all federal agencies, including commissions, in
the tribunal, without having to seek permission

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CASE UPDATES: HIGH INCOME EARNERS
 Section 382 Fair Work Act (“FWA”) - person protected from unfair dismissal if:
• completed minimum employment period (6 months or 12 months); and
either
• covered by award or enterprise agreement; or
• income under high income threshold ($142,000)
 Esso Australia Pty Ltd v John Stephens [2017] FWCFB 3783 (20 July 2017):
• Commissioner Cribb held that role fell outside of enterprise agreement but
within classification of Hydrocarbons (Upstream) Award 2010
• full bench quashed decision because employee did not hold a substantive
role at time of dismissal and therefore no classification of role could be
made
 Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC
2623 (15 May 2017):
• regional director of a multibillion dollar real estate business
• found to be covered by the Real Estate Industry Award 2010 because his
duties established he was an award-covered sales representative

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CASE UPDATES: CASUAL EMPLOYEES
 Section 384(2) FWA – period of service as a casual does not count towards
minimum employment period (6 months or 12 months) unless:
• the casual employment was on a regular and systematic basis; and
• during the period of casual employment, the employee had a reasonable
expectation of continuing employment on a regular and systemic basis.
 Robert Smith v Goldfields People Hire [2017] FWC 6730 (14 Dec 2017):
• Applicant employed as a casual truck driver for ten months by a labour hire
business (Goldfields) and assigned to work for a mining contractor
• a declaration signed by the Applicant said that he understood and accepted
“that with any assignment, there can be no expectation of permanent
employment.”
• Commissioner McKinnon held that s 384(2) elements met because:
• an expectation of continuing employment is different to an expectation of
permanent employment
• the Applicant had worked based on a clear pattern of rostered hours;
• there was no indication that a change in contractor’s requirement would
cause his employment with the Respondent to end
• Language of contracts also did not support an argument that he was
employed for a specified task.

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CASE UPDATES: FIXED TERM EMPLOYEES
 Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 (8 Dec 2017):
• teacher not offered new contract after 11 years of employment on a series
of fixed term “outer limit” contracts
• Respondent argued that teacher had not been dismissed at their initiative
per s 386(1) of the FW Act because the last contract had ended through
the effluxion of time
The Full Bench held that:
• “the analysis of whether there has been a termination at the initiative of
the employer for the purpose of s386(1)(a) is to be conducted by
reference to termination of the employment relationship, not by
reference to the termination of the contract of employment”
• where the employment relationship comprised a series of time-limited
contracts, the analysis may require consideration of the circumstances of
the entire employment relationship, not merely the terms of the final
employment contract
• case sent back for re-determination based on new interpretation of s
386(1)

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CASE UPDATES: MEDICAL INCAPACITY
 CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 (16
February 2018):
• concerned with whether there was a valid reason for dismissal related to
the person’s capacity pursuant to s 387(a)
• in circumstances where there are two conflicting medical opinions about
whether a person meets the inherent requirements of a role, there were
two conflicting approaches:
a) that the resolution of any conflict in medical opinion is to be left to the
employer: per the majority in Lion Dairy & Drinks Milk Ltd v Norman
[2016] FWCFB 4218; and
b) that the FWC is to make findings about the alleged incapacity based
on relevant medical and other evidence: per the Full Bench in Jetstar
Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075
• the Full Bench held that the tension between Lion Dairy and Jetstar is to
be resolved by the adoption of the approach in Jetstar

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CASE UPDATES: MEDICAL INCAPACITY
 Richard Hyde v Serco Australia Pty Limited [2018] FWC 2465 (8 May 2018):
• Commission upheld a prison officer’s dismissal on medical grounds,
despite the applicant later providing a medical reporting clearing him for
duties
• The applicant’s error was failing to obtain a medical report in response to
the show cause notice issued by his employer (which he requested, and
was granted, an opportunity to do), instead of just providing a written
response.
• It was only after his dismissal that the applicant obtained a medical report,
and as a result, that evidence was "not relevant to the determination of
whether or not there was a valid reason“ for dismissal.
• Commissioner Williams differentiated this matter from Papaioannou
(covered in previous slide): "in this matter at the time the decision to
dismiss was made the opinion of [the physician] had not created any
conflict with the medical opinions available to be considered by Serco
because [the] opinion did not at that point in time exist".

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CASE UPDATES: HEALTH AND SAFETY
 Paul Johnson v BHP Billiton Olympic Dam Corporation Pty Ltd [2017] FWC
4097 (31 Aug 2017):
• worker’s breach of OH&S policy by failing to evacuate from exploding
smelter at a uranium mine found to be valid reason for dismissal but did
not constitute intentional misconduct and mitigating circumstances made it
harsh and compensation awarded
 Mistry v Woolworths Ltd t/a Woolworths Fuel [2017] FWCFB 3926 (4 Sept
2017):
• Full Bench upheld appeal against decision that employee’s failure to
follow armed hold up procedure was a valid reason for dismissal
• held that:
-the procedure may not apply since assailant was not armed; and
-essential that OH&S procedures clearly state when they apply
 Robert Bennett v Viterra Operations Pty Ltd [2017] FWC 665 (1 Feb 2017):
• employee with unblemished record held to be validly dismissed after he
recorded more than twice the workplace blood alcohol limit after drinking
four glasses of red wine the previous evening

CASE UPDATES: DISHONESTY
• Qantas Airways Limited v David Dawson [2017] FWCFB 41 (23 Jan 2017):
• Full Bench quashed DP Lawrence’s decision that dismissal was unfair on
harshness grounds despite him finding that the applicant had given a
false explanation about stealing alcohol from a Perth to Sydney flight
• Deputy President’s finding that the flight attendant merely gave an
"incorrect explanation“ was held to be an error in the exercise of his
discretion
• Travis Hodgson v Bendigo Kangan Institute [2018] FWC 69 (5 Jan 2018):
• employee made statements to employer which were inconsistent with
evidence he provided to Victorian Anti-Corruption commission about a
fraud committed by a third party
• dismissal held not be unfair because his false and misleading statements
constituted serious misconduct even though he was not involved in fraud
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CASE UPDATES: DISHONESTY
• Halina Bluzer v Monash University [2017] FWC 2536 (19 May 2017):
• employee discovered to have falsified medical certificates after a
grammatical error was repeated in the certificates provided to the
employer
• held that a possibly falsified medical certificate was a sufficient concern
to start a disciplinary process
• decision upheld on appeal: [2017] FWCFB 4032
• Emma Valenzuela v Spectrum Community Focus Limited t/as Spectrum
Community Focus [2017] FWC 5007 (4 Oct 2017):
• failure to provide notice to an underperforming employee prior to
dismissal held to be unfair but no compensation awarded because
employee lied about her qualifications on her CV
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CASE UPDATES: OUT OF TIME APPLICATIONS
• Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as
Richmond Oysters [2018] FWCFB 901 (16 February 2018):
• Full Bench overturned Commissioner Platt’s ruling that the applicant
“needs to provide a credible explanation for the entire period of the delay”
• Instead, depending on the circumstances, an extension of time may be
granted where the application has not provided any explanation for any
part of the delay.
• The ‘reason for the delay’ is a factor that the Commission must take into
account in deciding whether there are exceptional circumstances, that is,
having a reason for the delay is not a condition precedent to a finding of
exceptional circumstances
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CASE UPDATES: SEXUAL HARASSMENT
 Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC
6137 (21 Nov 2017):
• baker sent explicit images to manager on facebook as a joke
• found that conduct fell short of sexual harassment because manager was
not offended by the messages and at least some of the exchange was
consensual
• however dismissal upheld because conduct still breached code of conduct
especially requirement to act with dignity, courtesy and respect
 Michael Renton v Bendigo Health Care Group [2016] FWC 9089 (30 Dec
2016):
• nurse’s misconduct including sharing explicit sexual images with
colleagues on facebook as a joke held to constitute a valid reason for
dismissal
• however, dismissal found to be unfair because it was disproportionate to
the gravity of the misconduct “on fine balance”

QUESTIONS?
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QLD EILS Seminar 13th June

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