Dismissal round-up: Verbal settlement binding; and more

Verbal unfair dismissal settlement is binding, says FWC

The FWC has ruled that a verbal settlement made during an unfair dismissal conciliation is binding, after a chef tried to renege on a deal to walk away for $1000.

QT Hotels and Resorts, which dismissed the chef from its Port Douglas resort after only six months, made him verbal settlement offer during a phone conciliation.

He accepted and received the $1000, but did not file a signed copy of the settlement or a discontinuance notice.

In a further telephone conference in March, he said no longer agreed that the payment was adequate and sought $3000.

He said he was acting on the belief that the agreement was not finalised until he signed documentation.

QT lodged an application in April to have the matter dismissed due to the January settlement and Commissioner Booth decided the matter "on the papers".

The employer agreed for the matter to be decided on the papers, and the chef made no further submissions and repaid the $1000, as directed.

"It is important to understand that a binding settlement agreement in this Commission does not have to be made in writing and can be made completely by spoken words or conduct engaged in by the parties," Commissioner Booth found.

"This is not a case in which the parties agreed that the settlement would only be binding once documented formally and signed: the evidence is to the contrary.

"That is, QT indicated that it considered it had reached agreement and [the employee] indicated that he understood that he had reached a verbal agreement during the conference."

The commissioner dismissed the application and ordered QT to repay the $1000.

Csontos v QT Hotels & Resorts Pty Ltd [2016] FWC 3632 (10 June 2016)

Micromanager's bullying justified his dismissal

A supervisor's micromanagement amounted to bullying that justified his dismissal, the Fair Work Commission has found in rejecting his claim that he was victim of a conspiracy.

Commissioner Tanya Cirkovic found the Karingal Inc audit and risk manager well-intentioned but that he caused some team members "great distress and anxiety".

The care services provider sacked him after its formal investigation found he breached its codes and policies by engaging in serious and sustained bullying of employees under his management.

The manager argued that no complaints had been raised with him before his dismissal, and his actions were a reasonable part of his managerial responsibility to help those reporting to him to improve their work.

One witness described the manager, who joined the organisation in late 2013, as having "said all the right things" and appearing "very personable", but after the first few weeks he imposed an obsessive micromanagement regime.

Witnesses told FWC hearings that the manager implemented new systems for auditing that included numerous spreadsheets and led to double-handling of reporting workloads and reduced productivity, while refusing to allow employees to contact Karingal's in-house helpdesk when systems malfunctioned.

The employees reported he was overly critical of the English skills of employees with a non-English speaking background, dismissive of feedback and requests from workers on specific tasks, and exhibited aggressive and intimidating behaviour that made his direct reports feel belittled to the extent they could not raise concerns with him.

One employee told the tribunal that the manager regularly made jokes about her "Checklish" – a reference to her origin in the Czech Republic – and often sat with her to watch her working on documents while making snide comments about her English expression.

Two employees working directly under the manager raised formal complaints that independent HR service provider Worklogic investigated.

Karingal argued that regardless of whether the manager's intended to bully people, his conduct made his direct reports feel increasingly inferior and disempowered in their roles.

Commissioner Cirkovic found the manager believed he was doing "his best by his employer and his staff", but was "unaware of the effects his behaviour had on the employees who reported to him".

"I am satisfied that the cumulative effect of his conduct and behaviours was one of significant and systematic micromanaging," Commissioner Cirkovic said.

Carroll v Karingal Inc [2016] FWC 3709 (8 June 2016)

Federal agency's consultation clause not just "aspirational", says bench

A federal government agency failed to adhere to an agreement's broad consultative obligations when it didn't meet with a casual employee it made redundant, an FWC full bench has found.

The Indigenous Land Corporation (ILC) dismissed the non-ongoing Brisbane property acquisition officer in May last year due to changes in its operational requirements.

The ILC contended that the dismissal was a genuine redundancy and that the consultation requirements under the Indigenous Land Corporation Enterprise Agreement did not apply because he was engaged on a casual, intermittent basis.

Commissioner Susan Booth found the dismissal a genuine redundancy under s389 of the Fair Work Act

The ILC had no obligation under the agreement to consult with the officer, she found.

But Vice President Graeme Watson, Deputy President Anne Gooley and Commissioner Nick Wilson overruled Commissioner Booth, finding she failed to correctly apply the authority in Telum Civil (Qld) Pty Limited v CFMEU to the officer's circumstances, because she never determined the status of the officer's employment under the agreement.

The full bench found that the provisions of the agreement's "Part B: A Fair Go at Work" required the ILC to consult with employees and their representatives about matters affecting their employment.

The clause is designed to provide employees with an opportunity to put forward their views to influence final decisions and/or negotiate an alternative, it said.

The full bench ruled that the clause was not confined to redundancies, but was "sufficiently broad to encompass the changes in employments arrangements" that led to the officer's dismissal.

"The expression of a commitment in an enterprise agreement is more than the expression of an aspiration.

"In our view, the terminology of the agreement imposes an obligation on the ILC to act in accordance with the commitment it expresses in the agreement," the full bench said.

It added that the terms of the clause should not be "read down" to exclude redundancies and that clause eight of the agreement "imposes" a consultation obligation on the ILC.

The full bench then considered whether ILC discharged its obligation to consult with the officer.

In mid-February last year, ILC told its casual workforce it had no plans to review workloads and that it wanted employees to focus on completing their projects.

But ILC then told the the officer last month that it no longer required his services.

It dismissed him, paying him five weeks pay in lieu of notice.

But a senior ILC employee told the full bench that the organisation's chief executive said it was best not to tell the employee about the likelihood of dismissal until that point "to avoid any difficult or uncomfortable situations in the office."

The full bench said ILC had failed to comply with its commitment to consult under clause eight of the agreement and that it provided no actual "consultation, information or knowledge" until the dismissal last month.

It found that during the interim period, the chief executive had authorised senior management to convey an incorrect message, provide misleading information to the officer about the situation and that this was the "very antithesis of genuine consultation".

"Far from providing an opportunity to contribute to the decision-making process, as the commitment provides, it was a deliberately dishonest endeavour to exclude the affected employees from the process until it became a fait accompli," said the full bench.

The bench said that the officer's dismissal was not a genuine redundancy and remitted the case to Commissioner Booth for further consideration.

McCaffrey v Indigenous Land Corporation [2016] FWCFB 2792 (9 June 2016)