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The Fair Work Commission (FWC) has awarded compensation of $70,000 to an applicant who was employed as a business analyst with a small business employer.

The applicant in the matter, Ms Chen, worked for five years with the respondent employer, TIOBE.  TIOBE sought to rely on poor performance as the reason for the dismissal of Ms Chen but Commissioner Bissett of the FWC found the business owner could not identify any date or detail of discussions he claimed to have had with Ms Chen to discuss her performance.  The Commissioner stated:

“If there are areas of concern with respect to an employee’s work performance the obligation is on the employer to identify the performance concerns, to be clear on the level of performance required, to provide training and support as necessary to the employee and to provide regular feedback on how the employee is progressing as required. Without these steps an employee cannot know what is required of them and whether or not they are progressing as desired by the employer.”

The employer also sought to rely on Ms Chen’s conduct in relation to posts made on the staff messaging system which were critical of the business.  But the Commissioner found the comments were posted by Ms Chen’s husband without Ms Chen’s knowledge.  Ms Chen could therefore not be held responsible for her husband’s actions in this regard.

Commissioner Bissett determined Ms Chen should be awarded $70,000 compensation representing 26 weeks salary, including superannuation.

Cathy (Yaqin) Chen v TIOBE Pty Ltd T/A TIOBE [2018] FWC 4173

Need help with an unfair dismissal matter?  Speak to an ES Consultant now.

Further to the Fair Work Commission’s (FWC) decision of March this year to introduce an annual entitlement of up to five days of unpaid family and domestic violence leave for award-reliant employees, the FWC has released the finalised version of the model clause on 9 July.

Continue reading “Unpaid Family & Domestic Violence Leave – Applicable from August 2018”

This morning, 1 June 2018, the Minimum Wage Panel of the Fair Work Commission (FWC) handed down its Minimum Wage Ruling. The FWC has awarded an increase of 3.5% to all adult full time weekly rates in the Modern Awards from the first pay period commencing (ppc) on or after 1 July 2018. Proportionate increases will flow to part time and casual workers, juniors, apprentices and trainees.

The 3.5% increase results in the National Minimum Wage (NMW) increasing to $719.20 per week (or $18.93 per hour). Casual workers who remain ‘award free’ will have the casual minimum rate increased to $23.66 per hour from ppc 1 July 2018.

It is important for employers to remember that it will not result in the same dollar value increase for each classification level – higher award rates will receive a higher increase in terms of the dollar amount flowed-on. For example, a 3.5% increase in the NMW is a $24.30 per week increase whereas a 3.5% increase in the standard trade-qualified (C10) rate, currently $809.10 per week, equates to an increase of $28.30 per week.

Allowances contained in each Modern Award, which are calculated as a percentage of the ‘standard rate’, will of course increase following the 3.5% per week increase to the ‘standard rate’ they are calculated from. Furthermore, expense-related allowances, specific to each Modern Award, will increase as necessary subject to the formal determinations issued by the FWC.

ES subscribers can anticipate updated versions of their Modern Award/s being made available online in the week beginning 25 June.

The Fair Work Commission has criticised the decision of a small business employer to dismiss a beauty therapist by phone but upheld the dismissal as being consistent with the Small Business Fair Dismissal Code.

Continue reading “FWC Critical of Dismissal by Phone but Upholds Sacking of Beauty Therapist”

A former Linfox employee has failed in his unfair dismissal claim with the Fair Work Commission finding he was dismissed, but that a Deed of Release he signed on the day of the dismissal operated as a complete answer to his claim.

Continue reading “Employee who resigned really dismissed – but unfair dismissal claim struck out due to Deed”