Archive for month: May, 2022

The issues of an unfair dismissal claim

If you are an employer who has been served notice of an unfair dismissal claim, you may have a range of different reactions.

It is understandable to feel shock, confusion, frustration, anger and even hurt. This can be a stressful time and it is one of the most worrying episodes that employers and HR staff face.

The most important thing is to take as much stress and worry out of the matter so that you can deal with the issues in a proper and professional manner.

It is vital that you follow the necessary steps to ensure the best possible outcome to a claim. 

The steps to dealing with a claim of unfair dismissal

You may have no idea that a former employee has or will make a claim that they have been dismissed unfairly until you receive a copy of the claim that they were dismissed unfairly.

Once you have been notified of the claim by the Fair Work Commission (FWC), you will receive the following documents:

1. A copy of the former employee’s (the Applicant) Unfair Dismissal Application – Form F2
2. A notice of listing – specifying the date and time for a conciliation conference

After receiving the Applicant’s Form F2, employers have 7 days to respond to the. This can seem a short period to reply, but it is a strict timeline you must follow. Failing to respond to an Application may lead to the FWC making orders in favour of the Applicant. 

The steps to follow include:

1. Reading the former employee’s application thoroughly so that you can fully understand why they are making their claim.
2. Fill out the Employer response to unfair dismissal application (Form F3 on the FWC website – For help filling out this form including a video and sample of a completed form, see F3 Help)
3. Respond to any assertions or allegations made by the Applicant, including, for example, the reasons for the dismissal.
4. If you wish to lodge a jurisdictional objection to the application, then you need to outline the legal reason why to the FWC.
5. You must respond within 7 days of receiving the application. This response needs to go to both the FWC andthe former employee.

It is crucial that you follow these steps in order and complete them within the timeframe. 

What you need to include in your response to a claim

One thing to remember is that you should avoid an emotional reply in your response. It may be difficult to temper those feelings, but this is a legal matter that is to be decided.

In your response, ensure that you outline;

• the dates the employee commenced employment, their dismissal and ended work
• the reasons you dismissed the employee
• your response to the employee’s arguments about why the dismissal was harsh, unjust or unreasonable 
• any objections you wish to raise

It is in your response and objections where you need to be as concise as possible and leave out an emotional response by sticking to the facts of the matter.

Some mistakes that employers make in dealing with such a claim can be detrimental. Avoid discussing the matter openly in the workplace and do not contact the FWC with an email in an emotional plea or tirade. This will undermine your position.

Important things to remember

The Fair Work Commission is set up to protect both employees and employers in matters of dispute. Their goal is to find the most positive outcome for all which is why they hold a conciliation where you and the applicant/employee can discuss the matter with assistance from a FWC staff member.

As an employer, you will be notified of the date and time of the conciliation within the letter sent to you with the unfair dismissal application.

It is important that you can provide copies of important documents that are relevant to the claim, including:

• written warnings given to the employee
• the letter of dismissal

The FWC may contact you later if more information or evidence is needed, such as witness statements.

If the dismissal takes place within a small business, the Small Business Fair Dismissal Code applies. If you have evidence that you have followed this Code, the FWC will deem the dismissal to be fair.

For more information, you can follow the links on the Fair Work Commission’s Unfair Dismissal Pages.

Why professional advice matters

Responding to unfair dismissal claims can be complex, however the way in which you respond to a claim can significantly affect the outcome. Therefore, investing in professional advice can be invaluable. Professional advice may also lead to changes being made to your internal processes and procedures, preventing future issues from arising.  

Seeking professional advice takes the time and emotional stress out of the equation.

That’s where Clyde Industrial can help. With expert advice that is cost-effective and accessible whenever you need it, you can more effectively handle any workplace issues and concentrate on growing your business.

In a decision published on 16 May 2022, a FWC full bench has outlined its provisional view that there should be a modern award entitlement to 10 days paid family and domestic violence leave (FDV Leave) for all award-covered full and part time employees across the country. The FWC seeks the Federal Governments view about whether it would incorporate such a provision into the National Employment Standards (the NES).

President Iain Ross, Vice President Adam Hatcher and Commissioner Paula Spencer were unwilling to express a view about whether such a provision should be included in the NES, noting that it is a “matter for Parliament, not the Commission”. Nevertheless, the bench seeks to better understand the legislative intentions of the Federal Government prior to making any variations to Modern Awards.

The FWC has directed parties to draft a model FDV Leave term based on its provisional view and submit draft directions by 17 June 2022.

A significant reason behind the FWC’s provisional view was evidence that paid FDV Leave had become an “emerging standard” in enterprise agreements and over-award agreements. 

President Iain Ross, Vice President Adam Hatcher and Commissioner Paula Spencer said the evidence showed a sharp rise in the availability of paid FDV leave in the past five years. 

Employer groups have reacted strongly to the FWC Bench’s decision with ACCI arguing that the FWC should not “assess enterprise bargaining outcomes and then transplant trends in bargaining into the minimum safety net”.

The AI Group said the Commission ought to consider what is necessary to achieve the modern awards objective, “not simply to codify commonly provided benefits within the award system”.

“The prevalence or otherwise of a particular above-award condition could not be seen as a compelling justification for a variation to the safety net.” 

Both employer groups “generally accept the seriousness of FDV as a societal problem” but argue it is unfair or unreasonable for employers to have bear all the cost. 

It is unclear at this stage what the Federal Government’s view is on NES amendments to include paid family violence leave.

On 7 April 2022 the FWC issued a decision concerning the operation of annualised salaries under the Hospitality Industry (general) Award 2020 and the Restaurant Industry Award 2020. This decision followed their earlier 2018 decision, which identified concerns with the current minimum 25% applied to weekly base rates.

The FWC noted in 2018: “In the case of the Hospitality Award and the Restaurant Award, where a significant amount of ordinary working hours is likely to be performed at unsociable hours which attract evening or weekend penalty rates, it may only take a relatively small number of weekly overtime hours for remuneration payable under the award to exceed the base weekly wage and a 25% increment.”

“In no circumstances should an annualised wage arrangement clause in a modern award permit or facilitate an employee receiving less pay over the course of a year than they would have received had the terms of the modern award been applied in the ordinary way, and it is essential that the clause contain a mechanism or combination of mechanisms to ensure that this does not happen. We consider that there are three types of mechanism which would likely be effective in this respect:

1. A requirement for a minimum increment above the base rate of pay prescribed in the annualised wages clause itself.
2. A requirement that the arrangement identify the way the annualised wage is calculated.
3. A requirement that the employer undertake an annual reconciliation or review exercise.

In respect of the mechanism (A) above, any such provision in an award should be justifiable by reference to reasonable assumptions about the number of hours which are being paid for, and impose outer limits on the number of overtime hours or other penalty-rate hours which are to be taken as paid for by the increment.” 

Following submissions by various employer groups and unions, the FWC issued its 7 April decision. Final determinations about the award variation were issued on 5 May 2022 and are summarised below:

Restaurant Industry Award 2020

Clause 20. – Annualised Wage Arrangements (formerly Annualised Salary Arrangements)

20.1 – Annualised wage instead of award provisions

1. Annualised wage must be at least 25% more than the weekly minimum wage, multiplied by 52 for the work being performed in satisfaction of any or all of the following provisions:

1. Clause 18 – Minimum rates
   1. Clause 21.3 – Split shift allowance
   1. Clause 23 – Overtime
   1. Clause 24 – Penalty rates; and
   1. Clause 25.3 – Payment for annual leave (i.e. Leave Loading)

• The employee must not be required by the employer in any roster cycle to work in excess of:

1. an average of 18 ordinary hours which would attract a penalty rate under clause 24.2(a) of this award per week, excluding any hours worked from 10.00pm to midnight; or
   1. an average of 12 overtime hours per week in excess of ordinary hours

without being entitled to an amount in excess of the annualised wage in accordance with clause 20.1(c).

• If in a roster cycle an employee works any hours in excess of either of the outer limit amounts specified in clause 20.1(b), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.

• Where a written agreement for an annualised wage arrangement is entered into, the agreement must specify:

1. the annualised wage that is payable;
   1. which of the provisions of this award will be satisfied by payment of the annualised wage;
   1. the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a roster cycle under clause 20.1(b) without being entitled to an amount in excess of the annualised wage in accordance with clause 20.1(c).

• The employer must give the employee a copy of the agreement and keep the agreement as a time and wages record.

• The agreement may be terminated:

1. by the employer or the employee giving 12 months’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
   1. at any time, by written agreement between the employer and the individual employee.

Similar to current provisions, employers must conduct a reconciliation, each 12 months, of the annualised wage arrangement.

The reconciliation is to calculate what the employee would have earned over the same period, had they been receiving minimum award provisions, with what the employee actually received.

If the employee earned less, then the shortfall must be paid to the employee within 14 days.

Hospitality Industry (general) Award 2020

Clause 24. – Annualised Wage Arrangements (formerly Annualised Salary Arrangements)

24.1 Clause 24 applies to all employees other than those within the Managerial Staff (Hotels) classification level as defined by Schedule A – Classification Structure and Definitions.

24.2 – Annualised wage instead of award provisions

1. Annualised wage must be at least 25% more than the weekly minimum wage, multiplied by 52 for the work being performed in satisfaction of any or all of the following provisions:
   1. Clause 18 – Minimum rates
   1. Clause 26 – Allowances
   1. Clause 28 – Overtime
   1. Clause 29 – Penalty rates
   1. Clause 30.3 – Payment for annual leave loading; and
   1. Clause 35.3(a) – Additional public holiday arrangements for full-time employees.

• The employee must not be required by the employer in any roster cycle to work in excess of:
  • an average of 18 ordinary hours which would attract a penalty rate under clause 29.2(a) of this award per week, excluding any hours worked from 7.00pm to midnight; or
  • an average of 12 overtime hours per week in excess of ordinary hours

without being entitled to an amount in excess of the annualised wage in accordance with clause 24.2(c).

• If in a roster cycle an employee works any hours in excess of either of the outer limit amounts specified in clause 24.2(b), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.

• Where a written agreement for an annualised wage arrangement is entered into, the agreement must specify:

1. the annualised wage that is payable;
   1. which of the provisions of this award will be satisfied by payment of the annualised wage;
   1. the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a roster cycle under clause 24.2(b) without being entitled to an amount in excess of the annualised wage in accordance with clause 24.2(c).

• The employer must give the employee a copy of the agreement and keep the agreement as a time and wages record.

• The agreement may be terminated:

1. by the employer or the employee giving 12 months’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
   1. at any time, by written agreement between the employer and the individual employee.

Similar to current provisions, employers must conduct a reconciliation, each 12 months, of the annualised wage arrangement.

The reconciliation is to calculate what the employee would have earned over the same period, had they been receiving minimum award provisions, with what the employee actually received.

If the employee earned less, then the shortfall must be paid to the employee within 14 days.

The above variations apply to the modern awards effective from 1 September 2022.