Resources: Blog

One of the most topical questions for employers during the COVID-19 pandemic has been whether they need to introduce policies that mandate vaccinations and, if so, what can be done to enforce them in the workplace.

The Fair Work Act 2009 (Cth) (FW Act) requires that employers comply with a number of procedural elements in a disciplinary process prior to making a decision about whether an employee’s conduct or behaviour warrants disciplinary action.

It’s that time again – cold and flu season. In this blog, we explore some key issues around managing sick leave during this tricky time of the year and particularly in this current COVID-19 climate.

Persons conducting a business or undertaking (PCBUs) have a positive obligation to ensure, so far as reasonably practicable, the health and safety of workers and others.

A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable.

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

In the unfair dismissal jurisdiction, where it is found by the Fair Work Commission (FWC) that an employee has been unfairly dismissed, the primary remedy under the Fair Work Act 2009 (Cth) (FW Act) is for the employee to be reinstated to the position they held immediately prior to their dismissal or another position on no less favourable terms.

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful.

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia.

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

Work health and safety legislation in Australia places significant duties and obligations on persons conducting a business or undertaking (PCBU) to ensure the health and safety of workers.

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct.

The Fair Work Regulations 2009 (Cth) impose a number of obligations on employers with respect to the making and keeping of employee records and pay slips.

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

When it comes to engaging new employees or promoting existing employees, it is crucial that employers prepare and review contracts of employment to ensure that they accurately reflect the terms which will govern an employee’s employment.

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.

The COVID-19 (coronavirus) pandemic has significantly impacted the financial stability of many businesses. Employers have had to make difficult decisions and implement different measures to ensure the ongoing viability of their businesses. Some of these measures have included asking employees to agree to temporary reductions in their hours of work or to a reduction in their remuneration.

Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

The Fair Work Commission’s recent decision in Hafsteins v Correct Installs Pty Ltd [2020] FWC 2729 has showcased a “patient” employer’s handling of an employee’s numerous workplace health and safety breaches.

There is a common misconception that probationary periods allow an employer to dismiss an employee for any reason (or for no reason at all) prior to the confirmation of their employment. This is not necessarily the case and, in fact, there is no statutory basis that entitles an employer and an employee to a probationary period.

Out of hours conduct and its impact on the employment relationship is always a hotly debated topic – particularly between employers and their employees.

There is a common misconception that probationary periods allow an employer to dismiss an employee for any reason (or for no reason at all) prior to the confirmation of their employment. This is not necessarily the case and, in fact, there is no statutory basis that entitles an employer and an employee to a probationary period.

Workplace fatalities are tragic and devastating events. In order to reflect the seriousness of these incidents, some jurisdictions across Australia have amended their work health and safety laws to establish the offence of industrial manslaughter, where the negligent conduct by a person conducting a business or undertaking or officers causes the death of a worker.

Across Australia, employers continue to face the difficult challenge of standing down employees in response to the effects of the COVID-19 pandemic.

In April 2020, temporary amendments were introduced into the Fair Work Act 2009 (Cth) to support the JobKeeper scheme. The provisions permit eligible employers to give certain directions to eligible employees in relation to reducing hours or days of work and/or temporarily changing their usual duties, location of work or days and times of work.

Many standard employment contracts contain a clause that addresses an employee’s obligations in relation to secondary employment and conflicts of interest. The obligation is generally that an employee will not act in a manner that conflicts with the interests of their employer or their duties as an employee. This contractual obligation is reflective of the common law duty that an employee must not engage in conduct that is incompatible with their duties to their employer

The Chief Operating Officer of Macarthur and South West United FC has launched legal proceedings against the Club, the Club Chair and another director alleging breaches of the general protections provisions under the Fair Work Act 2009 (Cth).

It is sometimes forgotten that sporting clubs and organisations are employers who are also subject to workplace laws and regulations in relation to their employees.

In a significant recent decision, the Full Bench of the Fair Work Commission held that an UberEats delivery driver was not an employee, with the majority finding that the delivery driver was in fact an independent contractor.

The unfair dismissal provisions of the Fair Work Act 2009 (Cth) provide a mechanism by which employees who have been unfairly dismissed can seek a remedy through the Fair Work Commission. However, not all employees will be protected from unfair dismissal and able to make a claim.

In deciding whether to take disciplinary action against an employee, it is important for employers to ensure that the employee is given a reasonable opportunity to provide a response or explanation before a final decision is made, particularly when it concerns matters that could result in summary dismissal.

The Fair Work Commission (FWC) has a vital role to play in the management of the current COVID-19 pandemic as it continues to impact employment relationships across the country.

The regulation of industrial action in Australia is complex. Whilst there is a need to acknowledge the rights of employees to engage in industrial action, the overall effect of industrial action on an employer’s business operations cannot be understated. Strikes or work stoppages and delays can have serious financial and reputational consequences for a business.

In R v Sapform Pty Ltd [2020] NSWDC 86, the NSW District Court (the Court) has criticised a formwork company for attempting to blame a worker who died after he was impaled by a metal bar when he fell from a height. The company was convicted and fined $450,000 for a Category 2 offence for the fatality.

The power of the Fair Work Commission (FWC) to make orders in applications for stop bullying orders is unique. While the ambit of the FWC’s power is broad, in that it can make any orders that it considers appropriate (other than orders providing for monetary compensation), those orders must be directed at preventing or stopping workplace bullying.

The coronavirus pandemic has not only upended our social and family lives, for many of us it has also required us to fundamentally change the ways that we work, including working remotely. When once employees could meet up to collaborate on projects, or chat face to face with each other, employees have now been confined to their homes, physically working in isolation.

In response to the impacts of the COVID-19 pandemic on businesses and employment across Australia, the Fair Work Commission (FWC) has already introduced (and proposes to further introduce) a range of temporary variations to modern awards to provide increased flexibility for employers and employees during this challenging time.

Managing underperformance is a difficult process and employers should always bear in mind that personal or other extenuating circumstances may be impacting a particular employee’s performance.

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour.

Bonuses and incentive schemes can be extremely successful in driving individual employee performance and overall business performance. A significant amount of work can go into crafting such a scheme - from market predictions to setting appropriate targets, drafting motivational communications to employees, and, very importantly, careful drafting of scheme documents.

Federal and State anti-discrimination legislation makes it unlawful for employers to discriminate against or harass a person in their employment. The legislation also places liability on employers for the discriminatory conduct of their employees.

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.

In the reporting year 2018/2019, the Fair Work Commission (FWC) received 13,928 unfair dismissal applications. Undoubtedly, unfair dismissal applications are amongst the most common received by the FWC.

When an employer is required to make changes to the workplace which are likely to have significant effects on employees, the employer must ensure that it meets any consultation obligations which might apply under various laws and industrial instruments prior to implementing any redundancies that might arise.

No profession loves hard copies of records more than lawyers – but it is often human resources who have the most to do with record keeping, particularly in relation to retaining employee records.

The Federal Court of Australia has ordered the Australian Workers Union (AWU) to pay $18,000 in penalties following its pursuit of disciplinary action against its own members.

Organisational change is a constant for business – whether it involves wider cultural change within a company, the introduction of new technology or systems of work, or even a restructure or downsizing of the workforce.

Employers place a significant emphasis on workplace culture, and rightly so – a workplace that holds itself and its employees to a high standard - set against an identified set of values - is likely to garner support and respect from employees, clients and the public.

Employers often supplement their workforce by utilising casual employees to perform work in addition to that performed by permanent employees. While such engagements might start out as irregular (or, truly casual), it is not uncommon for casual employment to become regular and systematic, and for a casual employee to develop an expectation of continued employment.

In recent times there has been widespread publicity about the outbreak of a respiratory illness caused by a coronavirus, which has spread from the Hubei province in China and has since been identified in other countries, including Australia.

An external HR consultant and a supervisor have been found accessorily liable for contraventions of the Fair Work Act 2009 (Cth) (FW Act) after they were involved in the dismissal of an employee who raised a potential award non-compliance issue.

As we have discussed in previous blogs, it is not uncommon for an employer and employee to enter into a deed of release or settlement when ending the employment relationship.

It goes without saying that employees should treat each other with respect and courtesy in the workplace. In a recent decision, the FWC was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal.

An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.

Performance management is a challenging process, which can be further complicated when employees are working remotely.

The Fair Work Commission recently issued interim orders in an application for orders to stop bullying, which required the parties to, amongst other things, treat each other with respect and dignity, and to not yell in an unreasonable manner.

A recent dispute between one of Australia’s leading sports agencies and two of its ex-employees is a reminder to employers about the importance of implementing processes to protect confidential information, including that of their customers and clients.

The Fair Work Commission (FWC) has endorsed the approach of a HR team in their management of an injured worker and the subsequent termination of her employment resulting from her incapacity to perform the inherent requirements of her role.

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant.

One of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act) is the entitlement for employees in particular circumstances to request a flexible working arrangement with their employer. Such requests can only be refused by employers on reasonable business grounds.

When considering claims of adverse action under the Fair Work Act 2009 (Cth) (the FW Act) a key focus of inquiry is the actual reasons of the decision-maker for engaging in the action.

There have been a number of prosecutions this year that have resulted in workplace bullies being found to have breached their duties under State and Territory work health and safety legislation

A NSW scaffolding business has been convicted and fined after it pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) (SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442).

Australians love sport – whether that is playing, watching on television, hosting match-day barbecues or attending live sporting events. Understandably, sport ignites a significant degree of passion and excitement for everyone involved, including spectators.

Workplace bullying can be extremely serious and should not be tolerated by employers.

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.

The Full Court of the Federal Court of Australia recently handed down a decision that is likely to have significant impacts on the accrual and taking of personal/carer’s leave, not to mention the management of the entitlement by employers.

No employer operates in a silo – all employers operate in complex systems of interrelated stakeholders including employees, customers, other businesses, and regulators who enforce the laws that apply to the employer and their business.

The rapid rise of concepts such as the gig economy has seen a significant shift in our understanding of the differences between independent contractors and employees.

The Fair Work Ombudsman (FWO) is responsible for ensuring compliance with workplace laws.

In the lead up to our webinar titled “Hold the Line! – Restraints & Employment Contracts” on 28 August 2019, we wanted to share some of the main discussion points and prominent cases on the topic of restraints of trade.

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness

Work health and safety legislation aims to provide protections for workers and other persons by eliminating or minimising risks to health and safety.

Workplace Law’s managing director, Athena Koelmeyer, recently presented our webinar entitled ‘Managing Workplace Behaviour’ during which she discussed many of the challenges faced by employers when it comes to managing workplace behaviour.

Discussions with employees about restructures and redundancies are difficult and emotions often run high.

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion.

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct.

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour.

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

It has unfortunately become a common occurrence for employees who are subject to management action to immediately seek redress by filing a claim against their employer (or other employees) alleging things such as adverse action, discrimination or bullying.

There are benefits to engaging individuals as independent contractors where there is a particular task, project or specialised kind of work that needs to be performed.

When emotions are running high and differences are unable to be resolved, employees often turn to the anti-bullying jurisdiction of the Fair Work Commission (FWC).

The model Work Health and Safety Act (Model Act) imposes a duty on officers to exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with safety duties.

A recent decision of the Fair Work Commission (FWC) has reminded employers of the importance of taking a measured and consistent approach to enforcing workplace policies and procedures.

One legal instrument commonly used to provide the parties with assurances about the finalisation of matters between them is a deed of release.

The Fair Work Act 2009 (Cth) (FW Act) provides that a person will not be unfairly dismissed where the person was dismissed as a result of genuine redundancy.

Defamation in the workplace is more often than not associated with disgruntled employees making adverse or negative remarks about their employer (or former employer).

In response to an application to stop bullying, the Fair Work Commission (FWC) has the power to make any orders it thinks necessary to prevent workplace bullying from continuing.

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.

The NSW District Court has convicted and fined a KFC franchisee after a young worker sustained third degree burns when his foot slipped into hot oil while he was cleaning the hoods of an overhead ventilation system.

According to the Fair Work Commission’s (FWC’s) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC.

When dealing with litigated matters, we cannot stress enough the importance of having evidence and witnesses that are credible and reliable to support a party’s position in the proceedings.

A suspension is a reasonable and lawful direction from an employer where, for the period of suspension, an employee will not be required to perform their duties in the usual manner they would normally be performed.

It is becoming increasingly challenging for employers and employees to understand where the line is between a relaxed, open and friendly workplace culture