Whats New at Workplace Law?

Ahh, it’s Spring at last and we are all shaking off the winter doldrums. Out with football and in with cricket!! In the spirit of the season, we’ve done some Spring cleaning at Workplace Law.

Firstly, our offices in Gold Coast and Brisbane are now fully operational and already a number of clients have accessed their services.

Secondly, our new website is up and running. You will see it has a client login area – let us know what you would like to be able to access!

Thirdly, we’ve now left our old premises on Level 8 or Australia Square and are now happily ensconced in Level 32. So, please alter your records to record our new address. (All our other details, telephone, facsimile etc remain the same.)

As always, we hope that the following information is of assistance to you.

Directors liable for breach of Trade Practices Law in employment case

In Magro v Fremantle Football Club Limted & Ors [2005] WASC 163 the Western Australian Supreme Court found three (3) executives of an AFL club were accessories to a breach of the Trade Practices Act (“TPA”) when they misled an assistant coach in negotiations prior to his acceptance of the assistant coach position with the club.

While the Applicant settled with the football club prior to going to court the Applicant continued with his Application against the three club executives on the basis that they were accessories to the misleading conduct.

The Applicant claimed the executives had:

· offered him a three (3) year contract; and

· agreed to conditions that included conditions that included paying his relocation costs and helping his wife find a new job in Perth.

Further, he claimed that he would not have agreed to relocate his family (including a daughter who suffered anxiety attacks) from Melbourne to Perth without some security of tenure.

The club executives claimed that although the length of the contract had been discussed during negotiations, it was always the intention that the employment contract could be terminated with one (1) month’s notice.

Justice Blaxell found in favour of the Applicant. He said it was highly unlikely that the Applicant would agree to give up his assistant coach’s position at Collingwood and “to sell his house in Melbourne, to uproot his family, and to transfer to this state without seeking any security”.

Justice Blaxell also stated there was no need to consider the defence question under the TPA of whether these representations were “reasonable” at the time they were made as “the defendants, by their own conduct, ensured that the representations did not come to pass”.

Justice Blaxell awarded the Applicant damages in the vicinity of $500,000 based on what the Applicant would have earned had he continued in his assistant coach’s position with Collingwood since 1987.

The Applicant is seeking to challenge the method Justice Blaxell used to assess the quantum of damages, while the football club is challenging the substantive decision.

Probation dismissal unfair and breach of contract

In Kisha Dare v Patrick Hurley t/as PHG Environmental Planning [2005] FMCA 844 (12 August 2005) Federal Magistrate Driver found that the Respondent terminated the Applicant’s employment unfairly in breach of s14(2)(c) of the Sex Discrimination Act 1984 (Cth) (“SDA”) and in breach of her contract of employment.

The Applicant was awarded $15,000 in damages and costs.

Background - Pregnant probationer dismissed for serious misconduct

The Respondent employed the Applicant as an Office Manager for his small business of five employees under a contract of employment, which contained a three month probationary period.

The Applicant commenced employment with the PGH (the Respondent) on 28 April 2003.

On 13 May 2003 the Applicant advised the Respondent that she was pregnant and required maternity leave in December that year.

On 9 May 2003 and 13 May 2003 the Applicant took sick leave due to illness.

On 21 May 2003 the Respondent and his wife (who was responsible for personnel matters) met with the Applicant to discuss her requirements for maternity leave.

On the evening of 22 May 2003 the Respondent’s wife advised him that the stationary orders worked on by the Applicant that day had been password protected contrary to PGH policy and later deleted from the PGH computer system.

On 23 May 2003 the Applicant sent an SMS message to the Respondent’s wife advising her that she was sick and would not be coming into work.

Around lunchtime the Respondent’s recruitment agent advised the Applicant that the Respondent was terminating her employment summarily for the following reasons:

· password protecting two important documents contrary to PGH policy;

· sending an SMS that she was ill rather than calling the Respondent; and

· deleting the two password protected document from the PGH computer system.

Decision - Dismissal unfair / unlawful and in breach of implied terms of contract

FM Driver found that the Respondent breached s14(2)(c) of the SDA as the Applicant was treated less favourably than a comparative employee would have been in the same or not materially different circumstances.

Before coming to this conclusion FM Drier has to first determine the characteristics of a comparator, which he decided included the following:

· an employee on probation and on the same terms of employment;

· who expressed a wish to take a period of unpaid leave;

· whose work performance was not assessed as unsatisfactory prior to making that expressed wish; and

· who password protected two documents without instructions to do so and who reported in sick by SMS.

Secondly, FM Driver had to answer the question: would the comparator have been dismissed? In answering this question FM Driver came to the conclusion that under the terms of PGH Employee Manual (Manual) a comparator would have received an oral warning for password protecting and deleting the documents and using an incorrect procedure to advise of sickness.

FM Driver considered that the comparator would have been given an opportunity to explain themselves rather than be dismissed on suspicion of malicious conduct that was unproven and if dismissed they would have been expected to be given notice as the conduct was not serious misconduct.

FM Driver also found under the accrued jurisdiction of the Court that the Applicant’s employment contract contained an implied term of trust and confidence, which compelled both the employee and employer to comply with the Manual.

The Manual contained oral and written warnings provisions in relation to a disciplinary process to be followed before considering any disciplinary action, a guarantee of fairness. The Manual FM Driver found was an implied term of the contract and the guarantee of fairness was an express term of the Manual, which was not afforded to the Applicant when the Respondent dismissed her without warning and without notice on 23 May 2003 in breach of her employment contract.

Workplace Law tips:

· Adhere to your termination policy if it does not exclude probationary employees;

· Determine if your termination policy applies to probationary employees;

· If the policy applies, adhere to it when terminating probationary employees; and

· If you do not want the policy to apply to probationary employees write this into your employment contract.

When terminating the employment of an employee, the best practice approach is to investigate the allegations, put them to the employee, ask for their response and then determine the appropriate disciplinary action, if any.

Appeal after Butcher's Sacking for wearing eyebrow ring unfair

Initial AIRC Decision

In June this year, in the case of Brown v Woolworths Ltd t/a Safeway the AIRC reinstated a butcher who was dismissed for wearing an eyebrow ring at work in breach of his employer’s dress policy.

The facts of the case were:

· Brown served his apprenticeship with Safeway as a butcher, and in 2002 commenced his employment as a butcher at Safeway, Mornington, Victoria.

· During 2002, Brown had an eye-ring inserted into his eyebrow and from that time he would always cover the ring with a blue water-proof Band-aid at work

· Towards the end of 2002, because of a slow down in business, Brown lost his hours at Mornington and sought casual work at other Safeway stores.

· In December 2002, Brown commenced working at Safeway, Rosebud, and was asked by the Store Manager what he had done with his eye-ring at the last store he worked at. Brown answered that he had covered it with a blue Band-Aid and the store manager indicated Brown could do that at Rosebud West.

· In late 2004, Safeway warned Brown that he was breaching the company’s dress policy and repeatedly asked him to remove the eyebrow ring. After Brown refused to do so, he was suspended from work and in February 2005 was terminated for breaching Safeway’s dress policy.

The AIRC found that Safeway had unfairly dismissed Rosebud West the employee for wearing an eyebrow ring at work, in breach of the policy. Safeway was ordered to reinstate Brown, maintain the continuity of Brown’s employment and make a payment for lost remuneration.

Decision on Appeal

In Woolworths Limited (t/as Safeway) v Cameron Brown PR963023 (26 September 2005) Safeway sought leave to appeal the decision by Senior Deputy President Acton.

This time decision went the way of Safeway, the Full Bench finding that in all the circumstances it was not satisfied that the termination of Brown’s employment was harsh, unjust or unreasonable, as Woolworths was entitled to sack Brown as his "repeated refusal" to comply with directions by management to remove the ring "involved a breach of the implied term to obey lawful directions sufficient to justify dismissal at common law".

Further, the Full Bench also found the store manager had no authority to allow the butcher to continue wearing the ring and cover it with a bandaid. The Full Bench stated that once Woolworths discovered the manager's error, it was entitled to take lawful and reasonable steps to ensure the butcher complied with the dress policy.

The Full Bench said it was "entirely reasonable" for employers to put in place mandatory policies to ensure they complied with their obligations and duties.

Workplace Law tips:

· Ensure management understand their level of responsibility and the power / authority they have in relation to adapting workplace policies in different circumstances; and

· Ensure management understands workplace policies and the importance of implementing them consistently.

Public holidays over Christmas and New Years

Christmas and the New Year are just around the corner and so are three (3) public holidays. This year, Christmas Day and New Year’s Day fall on a Sunday. So we thought we’d help you answer any looming “public holiday” questions early.

All State and Territory governments throughout Australia, except two (2) States have proclaimed:

· Christmas Day will be observed on Monday 26 December 2005;

· Boxing Day will be observed on Tuesday 26 December 2005; and

· New Year’s Day will be observed on Monday 2 January 2006.

The two (2) exceptions are Victoria and Western Australia.

In Victoria, Christmas Day will be observed on Tuesday 27 December 2005 and New Year’s Day will be observed on Monday 2 January 2006.

In Western Australia, a public holiday will be observed for Christmas Day on Sunday 25 December 2005 and New on Monday 2 January 2006.

If you have any questions regarding who is entitled to be paid for and / or at what rate public holidays should be paid please contact one of our team members.

Bonuses and ordinary pay

A new regulation has changed the calculation of “ordinary pay” for annual leave purposes for some employees in NSW.

The object of the Regulation is to make, without substantial change, the Annual Holidays Regulation 2000 which was repealed on 1 September 2005.

It applies to employees which have bonuses as part of their remuneration and whose remuneration (excluding bonuses) exceeds $144,000.

Scientists discover new element - Governmentium

A major research institution has just announced the discovery of the heaviest element yet known to science.

The new element has been name "Governmentium."

Governmentium has one neutron, 12 assistant neutrons, 75 deputy neutrons, and 224 assistant deputy neutrons, giving it an atomic mass of 311.

These 311 particles are held together by forces called morons, which are surrounded by vast quantities of lepton-like particles called peons.

Since Governmentium has no electrons, it is inert. However, it can be detected, as it impedes every reaction with which it comes into contact.

A minute amount of Governmentium causes one reaction to take over 4 days to complete, when it would normally take less than a second.

Governmentium has a normal half-life of 4 years; it does not decay, but instead undergoes a reorganization in which a portion of the assistant neutrons and deputy neutrons exchange places.

In fact, Governmentium's mass will actually increase over time, since each reorganization will cause more morons to become neutrons, forming isodopes.

This characteristic of moron-promotion leads some scientists to believe that Governmentium is formed whenever morons reach a certain quantity in concentration.

This hypothetical quantity is referred to as "Critical Morass."

When catalyzed with money, Governmentium becomes Administratium, an element which radiates just as much energy, since it has 1/2 as many peons but twice as many morons.