EPL Claims Scenarios

Example Case Studies

Our case studies provide you with an idea of the risks that employers face on a day to day basis, both in terms of the type of claims that can arise and also the cost of claims to businesses that do not have the benefit of Employsure's services.

Employers across Australia are facing these sorts of claims every day. Is your business protected against these risks?

Unfair dismissal

An employer dismissed an employee for accessing certain websites and sending inappropriate emails during office hours, in breach of the employer's internet and IT policy. The employee complained to Fair Work Australia that the dismissal was unfair. The employer was ordered to pay $35,000 in compensation and a legal bill of over $20,000. more

Discrimination

An employer decided that it needed to make a redundancy in its workforce. After a period of consultation, an employee was selected and made redundant. The employee later made a claim under the general protections provisions of the Fair Work Act, in which she stated that she had been selected for redundancy because she had told her manager that she was pregnant a week before her dismissal. more

Confidentiality

After a period of suspicious behaviour, an employee resigned, claiming that he was looking for a change of career. The employer discovered a week later that the employee had set up a business in direct competition. more

Wages

A group of employees complained to their employer that they had not been receiving the correct pay under their award. The employer disputed in this, believing that it had reached a workplace level agreement with its employees. more

 Sexual Harassment allegations made against Boss

 Scenario: Boss sued for 'sexually harassing employee and forcing her to model underwear'
In Melbourne, An Australian retail chain boss has been sued for sexually harassing a female employee, allegedly forcing her to model underwear in his office and also secretly photographing competitors' goods.
Employee Sallyanne Robinson, 30, claimed in Federal Court documents that Goodman, 54, sexually assaulted and made unwelcome sexual advances toward her.
The allegations have been made against Millionaire Philip Harry Goodman, He is the sole director and a shareholder of Rivers Australia, which has 150 stores across Australia. He denies the allegations’
Robinson, who was employed at Rivers' head office in the Melbourne suburb of Hawthorn from September 2009 to July 2010, alleged Goodman patted her on the bottom and grabbed her breast.
She also alleges he required her to model underwear for him without anyone else being present.
Robinson also alleges her boss required her to spy on competitors by wearing glasses fitted with cameras to covertly photograph goods and displays.
She is seeking damages against Goodman and Rivers in the Federal Court, but lawyers for Goodman and Rivers denied the claims. They allege she has a history of bipolar disorder and suffered a range of ailments and conditions during her time with Rivers, including alcohol abuse.
Goodman and the firm say Robinson at no time modelled underwear or was naked, but that she insisted on trying on underwear samples in front of Goodman. They claim it was part of her duties as accessories product developer to try on samples. Read More
 

Unfair Dismissal over Facebook Rant

If you think your employees bagging you on Facebook is enough to get them Fired, then think again with the following example. Not only did the rant appear to be hateful to his bosses, it also stepped into the area of Racism. But this dismissal did not succeed. Read More

Scrooge cops fine over refusal to pay Christmas Wages

A boss described as Scrooge hit back at the Fair Work Ombudsmen by saying the Laws were a sham over his refusal to pay christmas wages to staff two years ago. Saying "if you don't like it leave" shows real appreciation of his staff which would be worse than the fine he is being given. Read More

Weighty Unfair Dismissal issue

A recent decision by a Full Bench of Fair Work Australia has provided answers to three key questions which determine whether an employee is entitled to make a claim for unfair dismissal. The Full Bench considered:

  • whether an employee of Jenny Craig Weight Loss Centres Pty Ltd ("Jenny Craig") described as a "Regional Manager" was within the coverage of the Clerks - Private Sector Award 2010 ("the Clerks Award")
  • whether bonuses paid to the employee should be considered for the purpose of determining whether the employee's remuneration exceeded the high income threshold, and
  • whether the circumstances of termination of employment satisfied the requirement of "genuine redundancy" so as to bar the employee's claim.

The result of the appeal was that the employee was found to be entitled to bring an unfair dismissal claim. Accordingly, the case provides useful lessons for employers considering termination of employment of highly paid employees in redundancy situations. 

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Unfair Dismissal despite Porn found on Computer

 In a case which an employee had saved pornographic images onto their computer, the AIRC found that termination of employment was unfair. the Commissioner found that the dismissal was harsh because it was disproportionate to the gravity of the misconduct, and termination had disproportionate consequences;

The Commissioner took into consideration circumstances that included:

  • the employee was found to have 115 pornographic images on their computer drive which had been deliberately saved by the employee (not just automatically recorded through the operation of the computer system when others sent them to the employee);
  • the employer had strong policies regarding inappropriate conduct, including accessing pornography through the employer's computer system;
  • a reminder at start up of the computer every day drew the employee's attention to the policy;
  • the employee was not fully frank with the investigator, although some of his answers may have arisen more from not understanding how the computer system worked rather than anything dishonest;
  • the employee had 25 years service for the company and while the Commissioner found that such a length of service may be of less relevance in misconduct than it is in other cases, but such a long period should still be taken into account, particularly where the misconduct was relatively isolated;
  • the employee said the material had been forwarded to him by a more senior employee, who had since left,
  • others accessing similar material had not had their employment terminated;
  • computer records verified the employee's statement that he had not accessed, forwarded or dealt with the images after initially receiving and saving them
  • the conduct had occurred some years before it came to light and was not continuing;
  • the employee was genuinely contrite and remorseful;
  • the Commissioner also took into account the employee's personal situation, including his need for costly medical treatment, and other financial commitments;

The Commissioner ordered reinstatement since the relationship of trust and confidence had not been irretrievably broken, but did not order any compensation for six months loss of pay between termination and reinstatement, because some penalty was reasonable in the circumstances.  

Termination for deliberate car damage harsh:

An airline directed pilots to travel from airport to accommodation by company car, rather than by taxi (which the pilots preferred) with the aim to save money.

However one pilot, annoyed with the decision took it out on the car by deliberately driving it at high revs in low gear for long periods, and also by driving the car with the handbrake on causing considerable damage to the car. He was then summarily dismissed.

The low gear and handbrake allegations were proved, but the employer could not prove allegations that the pilot had also scratched the car, shifted the gears down while someone else was driving and had thrown away a key tag.

While Fair Work Australia criticised the employee's actions as petulant, childish and inappropriate, and foolish and silly from a person in a responsible position and could see there was a valid reason for the termination. However they determined that his dismissal was harsh and he was therefore reinstated.  They took into account his 14 years of service, seniority, and the financial effects of his termination. He had already been forced to sell his house and to spend $32,000 to qualify to fly other aircraft, and he had a previous good record prior to the incident.

There was also another pilot who engaged in similar conduct but he was not dismissed.

The Commissioner commented that the pilot's conduct was not to be condoned in any way but in view of the consequences for him he believed reinstatement was appropriate. Some but not all entitlements were agreed to be paid for the period of the dismissal, including the pilot to be placed on a formal warning about his conduct. 

 

Tardiness and low level insubordination:

An employer terminated a retail cashier's employment for the following reasons:

  • the employee started late, or with only a minute to spare, on 16 occasions during six months (when cashiers were required to be ready for work in advance of the 9am store opening time in order to immediately be able to receive customers, and received a paid lunch break as compensation for the extra time required);
  • on two occasions his register was short of cash, raising concerns about his handling of cash;
  • he sometimes put up the "Next Cashier" sign to engage in lengthy personal mobile phone calls;
  • he refused to answer an incoming phone call as directed because it was "not yet 9am".

The employee's unfair dismissal claim succeeded because:

  • while his conduct would have been frustrating, the issues were small niggling issues, and did not provide a valid reason for dismissal;
  • there was no evidence that the cashier was responsible for a pattern of cash drawer shortages and two instances over six months did not prove inability to perform the necessary duties;
  • as the deteriorating relationship meant that it was unlikely that the employment would have continued longer than another three months, the employer was ordered to pay three months' pay as compensation, but it was discounted by 10% in recognition of the cashier's low end misconduct.

 

Termination for accessing the Internet at work:

An employee who had been clearly directed not to access the internet during work time failed in his unjust dismissal claim.

He argued that he had not infringed the direction because he had not gone beyond the first page of sites he had accessed (because the computer system did not allow him to go further).

Fair Work Australia rejected this argument as the direction was clear, and accessing the first page of websites infringed that direction, even if the infringement was not prolonged by accessing further pages. The employee’s claim was therefore dismissed. 

Latest News

Illegal or unsuitable cladding now a big issue

Why we have laws, regulations and Australian standards? Because some people just do the wrong thing all for the sake of making money. The cladding issue is the subject of 4 Corners program on the ABC.

We are already seeing Insurance policies now placing exclusion endorsements into their policies excluding and claims relating to illegal cladding. We are seeing Governments demanding Audits of all existing buildings above a certain height. There are accusations of Builders taking other short cuts such as on Wiring, Pipes and sprinkler systems. 

The question is, who is to blame? Who will take responsibility?

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Small business in NSW

Right after the NSW Government have reimposed Fire Service Levies, they have at least made an effort for small business. The government has announced it will abolish stamp duty on a number of policies taken out by a small business. This is an important change.

What is a small business? In order to gain the exemptions, the business must be a small business for Capital Gains Tax Purposes for the income year in which the insurance is effected or renewed. A small business for CGT purposes is: “an individual, partnership, company or trust that is carrying on a business, and has an aggregated turnover of less than $2 million.”

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