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In the Tribunals

In the Tribunals. Case 1: Jones v CPE (FWA) Case 2: The Board of Bendigo Regional Institute of TAFE and Barclay and Another (HCA). First we go to Fair Work Australia…. Jones v CPE:. Unfair dismissal matter FWA found Valid reason for termination

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In the Tribunals

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  1. In the Tribunals Case 1: Jones v CPE (FWA) Case 2: The Board of Bendigo Regional Institute of TAFE and Barclay and Another (HCA)

  2. First we go to Fair Work Australia…

  3. Jones v CPE: • Unfair dismissal matter • FWA found • Valid reason for termination • Unfair dismissal because of a less than procedurally fair process • Ordered payment of 12 weeks salary in compensation

  4. Jones v CPE: the Basic Facts • Mrs Karen Jones commenced as probation and parole officer (AO4) on 14 June 2011 • Appointment for 12 months with ongoing employment upon satisfactory completion of training • Mrs Jones terminated as a Probation & Parole Officer on 13 January 2012 on the grounds that she had: • failed to be open and truthful in her application for employment in advising that her husband was a parolee; and • subsequently failed to respond to this matter in an open and transparent manner

  5. Jones v CPE: the Basic Facts (continued) • Mrs Jones had relied on a narrow interpretation of “associate” when completing her Criminal History and Integrity Form • Mrs Jones sought confirmation of her interpretation of “associate” from a range of sources, but not Northern Territory Correctional Services in the Department of Justice • Mrs Jones had previously worked in correctional services in Queensland

  6. Jones v CPE: the Basic Facts (continued) Exchange of correspondence • For 3 months from October 2011 to January 2012 • Allegations of serious misconduct • Responses denying any wrongdoing as well as complaints of a lack of managerial support and bullying in the workplace

  7. Jones v CPE: the Basic Facts (continued) • DOJ found that • she failed to be open and transparent; and • she failed to appreciate the potential for actual or perceived conflicts of interest to arise with work in the criminal justice system • During the disciplinary process DOJ did not suspend Mrs Jones from duty

  8. Jones v CPE: Fair Work Australia’s Consideration of the Matter • Management of the matter amounted to a disciplinary process by correspondence • Failure to provide Mrs Jones with any face-to-face meetings • No viable opportunity to respond to the allegations • No opportunity to have a support person

  9. Jones v CPE: Fair Work Australia’s Consideration of the Matter (continued) • Mrs Jones continued to work during a disciplinary process for serious misconduct • Department failed to investigate her concerns about an unsafe workplace and breaches of her privacy

  10. Jones v CPE: Lessons • Employees should be given a reasonable opportunity to respond to allegations of serious misconduct through face-to-face discussions as well as formal correspondence • Employees should be given the opportunity to have a support person present during these discussions

  11. Jones v CPE: Lessons (continued) • Avoid discipline by correspondence • Prompt investigation of allegations of misconduct • Consideration of suspension during investigation of allegations of serious misconduct

  12. Jones v CPE: Lessons (continued) • Exercise caution before dismissing an employee • Consider questions associated with the employee’s ability to find alternative work • Pay close attention to the wording of recruitment documents, especially in relation to imprecision or ambiguity

  13. Jones v CPE: More Information Unfair Dismissal Case Study: Commissioner’s Information Sheet

  14. And NOW to the High Court…

  15. The Board of Bendigo Regional Institute of TAFE and Barclay and Another • High Court of Australia • Clarifies the law in relation to adverse action claims under the General Protections provisions of the Fair Work Act 2009 (Cth) • Some adverse action claims have been made in the Northern Territory Public Sector

  16. Barclay: Abbreviations

  17. Barclay: the Law Section 346 of the FW Act A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b)…

  18. Barclay: the Law (continued) FW Act Section 347 meaning of Industrial Activity A person engages in industrial activity if the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or (b) does, or does not: (i) become involved in establishing an industrial association; or (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or

  19. Barclay: FW Act Section 347 (continued) (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or (iv) comply with a lawful request made by, or requirement of, an industrial association; or (v) represent or advance the views, claims or interests of an industrial association; or (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or (vii) seek to be represented by an industrial association…

  20. Barclay: the Law and the Reverse Onus of Proof • Section 361 of the FW Act establishes a reverse onus of proof for contraventions of the General Protections provisions • Adverse action is presumed to have been taken for the prohibited reason or with that intent unless the person proves otherwise

  21. Barclay: the Basic Facts • BRIT undergoing a re-accreditation process • Greg Barclay • Team leader involved in re-accreditation process • AEU sub-branch President at BRIT • Through his work and through representation from AEU members forms a view that inaccurate information is being placed into the re-accreditation documents

  22. Barclay: the Basic Facts (continued) • Greg Barclay sent an email to all AEU members at BRIT, which said: • AEU members are being asked to be part of producing false and fraudulent documents for the audit • AEU members should not participate in fraudulent activities • BRIT management formed the view that the email was a breach of discipline because Greg Barclay had not followed proper procedures and may have damaged the reputation of BRIT

  23. Barclay: the Basic Facts (continued) • BRIT commenced disciplinary action—including suspension and exclusion from its email system • AEU alleged adverse action because Greg Barclay was acting as its officer • Matter went to the Federal Court • Application dismissed in the first instance • Judge accepted evidence of the principal that she had dealt with a potential breach of discipline—not with an AEU official

  24. Barclay: the Basic Facts (continued) • Appeal to a Full Bench of the Federal Court • FB upheld the AEU appeal that adverse action had been taken against Greg Barclay because of his union activity • FB held that the principal had taken action for an unconscious reason or a reason which was not appreciated or understood by her which was prohibited

  25. Barclay: the Decision • HCA upheld the BRIT appeal • HCA clarified that the correct approach required attention to the particular reason for the adverse action • This reason could be adduced through evidence provided by the decision maker in the court in the first instance • Traced the reverse onus of proof principles back to the Conciliation and Arbitration Act 1904 (Cth)

  26. Barclay: Lessons • Need to be mindful of general protection provisions and the risk of an adverse action claim • Ensure that prohibited reasons do not form part of the decision making process • Accept that the decision making process could be subject to consideration by a court

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