Unfair Dismissal cases have increased this year.
Numerous issues have prevailed and as Employment Lawyers we have had to deal with difficult and unique challenges for employers.
Cleaning companies have had mixed success during COVID-19 – some companies have been busier than ever. Others have struggled to continue their contracts. Many have unfortunately been in front of the Fair Work Commission.
From Employment Lawyers here are 3 Unfair Dismissal cases all cleaning companies need to know:
Case 1 – Client does not want the cleaner in the business
In an application for unfair dismissal the case of Vaska Petreska v Bayton No.4 t/a Bayton Cleaning [2020] FWC 541 involved a cleaning company with a contract with the Commonwealth Law Courts (CLCC). Unfortunately, the CLCC staff disliked the cleaning employee who worked there because she:
- Would speak loudly and interrupt staff working at CLCC
- Her actions including being disruptive caused staff at CLCC to feel anxious
The employer spoke to the CLCC (the client) and went to great lengths to keep the employee onsite however her behaviour was still not acceptable. As a result, the employer found an alternate site so she would not be disadvantaged. The employee rejected work at the alternate site and as a result her employment was terminated.
The employee filed an unfair dismissal claim and it was ultimately defended successfully.
Points to consider
- Seeking and documenting complaints from clients and ensure the employee is provided a reasonable opportunity to improve (if issues in relation to performance).
- If appropriate, offer redeployment opportunities to an employee. Consider whether consultation is required given the change in workplace location.
- Refusing a lawful and reasonable direction to work at another location may be grounds for misconduct – however you should make it clear that this could be a possibility to the employee
- If a refusal to work at another location is likely to result in termination of employment, issue a warning in writing to the employee.
Case 2 – Actually the cleaner is a “contractor”
The employment of a cleaner was terminated in the case of Rudina Pekaj v AAMG Cleaning Group Pty Ltd [2018] FWC 2348 this involved the age old question in the cleaning industry of whether a worker was a contractor or an employee.
If they were held to be a contractor they would not have jurisdiction to file an unfair dismissal claim.
- Employee alleges she was employed as a commercial cleaner
- Employer raised jurisdictional objection – not an employee but a contractor
- No written contractor agreement in place
Jurisdictional objection was dismissed and the applicant was held to be an employee.
Points to consider
- Considerations between an employee and contractor (control, exclusivity of services, subcontracting of work, equipment, uniforms, tax, insurance, leave)
- Have a written contractor agreement in place
- Risks of engaging in sham contracting
- Also have a read of our earlier article on contractors in the context of some Uber decisions
Case 3 – Going beyond the “scope of services”
An employer terminated the employment of a cleaner when the employee was dismissed for giving a massage to a teacher in the matter of Jennifer Fauni v Bright Lightz Cleaning Service [2020] FWC 3874.
- Employer was a contractor for cleaning services with the Northern Territory Department of Education
- Employee was dismissed for giving a massage to a teacher, at the teacher’s request, to assist with back pain. Massage involved the cleaner standing on the teacher’s back whilst the teacher was lying down.
- A small business dismissal code objection was also filed and upheld.
Points to consider
- Ensure employees understand the scope of services required to be performed (and their duties) and do not exceed the scope of services.
- For a summary dismissal to be consistent with the Small Business Fair Dismissal Code, an employer must establish the employee’s conduct was sufficiently serious to justify immediate dismissal and the belief must be based on reasonable grounds.
- A reasonable investigation will usually be required to demonstrate the belief was based on reasonable grounds.
- Failure to satisfy the requirements of the Small Business Fair Dismissal Code may lead to a jurisdictional objection being dismissed. The FWC will then need to consider whether there was a valid a reason – this is a different test.
- Relying solely upon the Small Business Fair Dismissal Code as a defence is fraught with danger. If an employer fails in this defence then there is likely to be a lack of procedural fairness and natural justice in regards to the dismissal.
If you are an employer, cleaning company or in human resources and this article resonated with you feel free to give us a call +61 (07) 3876 5111 to arrange a time to speak with one of our lawyers for an obligation free consultation.
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Written By
Jonathan Mamaril
Director
NB Lawyers – Lawyers for Employers
[email protected]
+61 (07) 3876 5111
About the Author
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.