Fair Work Commission Matters

The Fair Work Commission (FWC) is a national workplace relations tribunal. The Fair Work Act 2009 empowers the FWC to perform a range of regulatory activities and tasks the Commission with providing a “safety net” for workers when it comes to minimum wage and employment conditions.

The FWC helps workers and employers bargain in good faith to make, vary, or terminate enterprise agreements. It also steps in to regulate unions and employer groups. The FWC provides mediation and conciliation services and sometimes holds public tribunal hearings to resolve workplace disputes.

One of the FWCs main functions is to respond to applications about unlawful termination and unfair dismissal. The FWC also deals with disputes and applications involving:

• Adverse Action / General Protections
• Wages and Entitlement Claims
• Flexible Working Arrangements
• Enterprise Bargaining Matters
• Extending Unpaid Parental Leave
• Unlawful Industrial Action
• Industrial Action, including Strikes, Work Bans and Lock Outs
• Disputes under Enterprise Agreements
• Fixed Term Contracts

Unfair dismissal

Unfair dismissal is the termination of an employee from their job in a harsh, unjust, or unreasonable manner. For instance, in Tomaso Edwards Moro v Insider AU Pty Ltd [2023], the FWC held that an employee was unfairly dismissed from his position after working from home on a mandated office day.

The employee was a sales representative at Insider AU, a company with a work-from-home policy that mandated two in-office days per week. The employee regularly failed to attend the office on these mandatory days and had been informally warned by his employer on previous occasions. On the day of the incident, the employee’s manager queried his absence and was dissatisfied with the employee’s response that he could not attend because he had a tradesperson coming to his house that day. The employee had not provided advance notice of his need to work from home on that day.

The following day the manager told the employee over the phone that it was “best to part ways”, and his access to the workplace systems was terminated. The Commission found that the employee’s failure to attend work on one mandated office day was not in itself sufficient reason for dismissal. The Commission particularly highlighted the employer’s lack of formal warnings and noted that the informal warnings months earlier could not count towards the decision given the passage of time. Crucially, the dismissal was also found to be procedurally unfair, as the employee was not properly notified that their position was at risk and was not given an opportunity to respond to the allegation. He also had no support person present during the discussion with his manager about the dismissal. As such, the dismissal was harsh, unjust, and unreasonable. The employee was awarded 12 weeks’ pay in compensation.

Bullying claims

Employees can make complaints to the Fair Work Commission claiming that they are suffering bullying in the workplace. The FWC’s anti-bullying jurisdiction took effect in 2014, with the first formal finding in CF, NW v Company A and ED [2015]. In this case, two real estate employees made an allegation of bullying and harassment against a property manager at their workplace. The alleged bullying included humiliating and belittling conduct, abusive language, victimisation, physical intimidation, and threats of violence. Despite an internal investigation and attempted mediation, including the relocation of the property manager, the employees made workers’ compensation claims because they were unable to return to work.

The Commissioner accepted the claim of bullying and agreed that the workplace had developed an unprofessional culture which created a risk to the health and safety of the workers. The Commissioner made specific orders directing the victims and the perpetrator to stay away from each other. The business was ordered to implement appropriate anti-bullying training, policies and procedures, with reporting requirements.

Workplace sexual harassment

The FWC was also given powers to deal with sexual harassment complaints. These powers not only allow the FWC to issue “stop orders” against individuals and businesses, preventing them from engaging in harassing behaviours, but also to address past harm caused by sexual harassment.

In one of the Commission’s first sexual harassment dispute cases, an underage worker, Ms AB, alleged that she was sexually harassed by three other underage colleagues, in that they circulated an inappropriate video of her amongst themselves.

The Commissioner held two conferences between the parties, their parents, and legal representatives, with the parties ultimately entering into consent orders. The respondents agreed to refrain from discussing the video with anyone and undertook not to make any abusive or disparaging statements about Ms AB in the future. One respondent was ordered to give written acknowledgement of Ms AB’s distressful experience within 7 days, without admission of liability. There was also an order for all copies of the video to be permanently deleted.

Go To Court can provide legal advice and representation during a Fair Work Commission matter. Please get in touch with the employment law team on 1300 636 846 today.