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Blog

Workplace Law's Blog featuring amendments to the Fair Work Act and more.

Cigarettes and cough lollies

Employee dismissed for failing BAC tests

In a recent unfair dismissal decision, the Fair Work Commission (FWC) has supported an employer’s decision to dismiss an employee for breaching its drug and alcohol policy despite the employer failing to strictly enforce the policy.

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Off the clock

Fair Work Commission finds out-of-hours drink driving offence was not a valid reason for dismissal

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.

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Time's Up

Fair Work Commission rejects extension of time application after finding that the date of dismissal was made reasonably clear to the employee

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission. The statutory limit starts from the date the dismissal takes effect.

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Pedal to the metal

Fair Work Commission orders the reinstatement of an employee who was unfairly dismissed following a second investigation into the same incident

In unfair dismissal matters, reinstatement is the primary remedy and the Fair Work Commission (FWC) may not make an order for compensation unless it is satisfied that reinstatement is inappropriate.

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You’re bacon me crazy

Fair Work Commission finds dismissal was disproportionate to the gravity of an employee’s heat of the moment remark

In the unfair dismissal jurisdiction, the primary remedy is reinstatement. This means the employer is ordered to return the employee to their employment in the position they held immediately prior to their dismissal or another position on no less favourable terms.

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Caffeine Hit

Fair Work Commission upholds dismissal of an employee who misused a company coffee account

Financial misconduct committed by an employee can fundamentally damage the trust and confidence in an employment relationship. Unfortunately, financial misconduct is a common issue for Australian businesses and if it is not dealt with promptly and effectively, there is an opportunity for further misadventure.

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Not so ‘funny’ meme

FWC finds sexually explicit Facebook post warranted dismissal, despite the employer’s ‘rather unusual’ workplace culture

The workplace culture of an organisation should reflect the values that the business upholds and expects of its employees. It is becoming increasingly challenging for employers and employees to understand where a line is drawn between a relaxed and open workplace culture and a workplace culture that tolerates inappropriate behaviour.

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Halt before you post

Casual employee unfairly dismissed for Facebook recommendation

Social media and employee’s conduct online has without doubt added a layer to the employer and employee relationship. While employees may think that their online activities done outside of work hours may be private, their conduct online may become relevant to their employment, for example, where it may disparage their employer, other employees or clients.

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Shots fired

Vaccinations and the workplace

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.

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Knives Out

Employer ordered to pay maximum compensation following “entirely unjust” disciplinary process

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.

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Coughs and sneezes spread diseases

Managing sick leave during the cold and flu season

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.

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Set and forget

Court fines PCBU $60,000 for failing to re-assess the risks associated with changing site conditions

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.

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Garbage in, garbage out

Employee fails in bid to have safety-related dismissal found to be unfair

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.

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Pick up the phone

Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

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.

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Celebrity search

FWC upholds dismissal of an employee who repeatedly and deliberately accessed customer’s confidential information without authorisation

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.

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Host with the most

Full Bench quashes order to reinstate labour hire employee to host employer

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.

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The rooster and the sunrise

Court finds rescinded job offer was not age discrimination

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).

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New guidance material released by Safe Work Australia

Sexual harassment and work health and safety

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.

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Consult, co-operate and co-ordinate

SafeWork NSW successfully prosecutes a PCBU for failing its consultation obligations with other duty holders

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.

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Less is more

Fair Work Commission critical of investigation process despite the employer’s valid reason for dismissal

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.

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Fine following workplace fatality quadrupled following Government intervention

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.

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The daily commute

Fair Work Commission accepts that role with additional travel time was acceptable redeployment employment

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.

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Construction zone

FWC upholds objection to constructive dismissal claim

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.

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Put your records on

Court penalises accountant for involvement in employer’s failure to keep employee records

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.

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It’s on you

The onus and presumption in adverse action matters

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.

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Put it in writing

Notice of termination in the employment contract

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.

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In your letter

Termination of employment letters

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

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Below not above

Salary reduction brought employee under high income threshold

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.

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All in good fun

Company vicariously liable for injury resulting from skylarking supervisor

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.

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Draw the line

Managing employee conduct and behaviour in the workplace

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.

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Patience, you must have

FWC upholds safety-related dismissal of employee given multiple chances

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.

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Relationship status: It’s complicated

Understanding your contract in eSports and gaming

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.

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Bus money

FWC upholds dismissal of employee who borrowed money from bus passenger

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

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The probation myth

Probation and the “minimum employment period” in the Fair Work Act 2009 (Cth)

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.

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Brisbane company first to be convicted of industrial manslaughter

Brisbane company first to be convicted of industrial manslaughter

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.

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Stand down and out

FWC dismisses challenge to stand down

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

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Leave me be

JobKeeper and annual leave requests

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.

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No competition

Conflicts of interest in the employment relationship

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

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Adverse action claim initiated against professional football club

Adverse action claim initiated against professional football club

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).

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A-League club facing adverse action claim in Court

A-League club facing adverse action claim in Court

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.

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Eating out

Full Bench find UberEats delivery driver not an employee

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.

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Cover me

Dismissed department Head fails in bid to be covered by modern award

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.

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Taking the high ground

FWC upholds dismissal of employee who stored marijuana equipment in the workplace

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.

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Vexed variation

The FWC, COVID-19 and variations to redundancy pay

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.

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Fake news

Union ordered to pay $3 million for spurious safety claims

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.

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Blame game

Experience of worker no excuse for not complying with work health and safety duty

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.

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Order up

FWC refuses to stay dismissal despite stop bullying application

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.

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Send me your location?

Staying connected while working from home

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.

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COVID-19 and modern award variations

COVID-19 and modern award variations

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.

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Managing employees with disabilities

Managing employees with disabilities

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.

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I'll go first

Employer’s disciplinary process didn’t force resignation

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.

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Everything else is just a bonus

Employment contracts and discretionary incentive schemes

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.

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You're a liability

“All reasonable steps” and vicarious liability

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.

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Out of service

Server dismissed for inappropriate conduct towards co-workers

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

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The high life

Unfair dismissal and calculating the high income threshold

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.

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How was I supposed to know?

Employers’ consultation obligations when implementing major workplace change

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.

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Who holds the record?

Record keeping basics for human resources

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.

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Fully charged

Penalties ordered against union that “charged” members who chose not to engage in industrial action

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.

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Head in the cloud

FWC finds evolving technology not a significant role change for IT employee

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.

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Culture catch-all

“Cultural fit” and recruitment

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.

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Keeping you regular

Regular and systematic casual employment

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.

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Coronavirus

A Guideline for Employers

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.

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All together now

HR consultant and supervisor found accessorily liable for breach of FW Act

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.

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A good deed goes a long way

FWC rejects claim deed was made under duress

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.

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What did you say?

Employee dismissed for offensive remarks in the workplace

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.

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Preferential treatment

FWC finds employee was dismissed due to employer’s racial preference

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.

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Soft(ware) skills

The importance of effectively understanding and communicating performance issues

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

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Quiet, please

Commission orders parties to stop yelling in the workplace

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.

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Who's with me?

Sports agency sues former employees for poaching clients

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.

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Questions of capacity

FWC endorsed employer’s approach to management of injured employee

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.

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One for my baby, and one more for the road

Drive through bottle shop attendant dismissed because of pregnancy

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

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Please, please, please, let me get what I want

Employer’s refusal of flexible working arrangement was not a dismissal

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.

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Destructive criticism

Lawyer dismissed for publicly criticising clients

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.

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Acts of gross stupidity

Workplace bullies convicted and fined for breaching WHS duties

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

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Workers rode scaffolding to the ground

Employer convicted and fined for WHS breach

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).

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Tunnel Vision

Work Health Safety and Professional Athletes

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.

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Just Managing

Workplace bullying and reasonable management action

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

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A little less conversational swearing

Casual swearing no excuse for conduct

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.

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Only time will tell

Full Court decides meaning of “day” for personal/carer’s leave

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.

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Group Effort

How a region banded together to improve employment standards

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.

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Fool me once, sham on you

FWC refers employer to FWO over sham contracting

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.

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Brace yourself for consequences

Dentist penalised for non-compliance and personally ordered to rectify underpayments

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

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Restraints of Trade

Restraints of Trade

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.

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The Pelican Brief

FWC reinstates pelican feeder to job 'as rare as hen's teeth'

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

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Court Bags a Bully

Worker convicted for bullying behaviour

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

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The Standard is the Standard

Key takeaways from our webinar ‘Managing Workplace Behaviour’

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.

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Being genuine

Unfair dismissal, genuine redundancy and the redistribution of duties

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

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Have a seat and take a stand

Why clubs need to regulate fan and member behaviour at sporting events

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.

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Not ok in any (con)text

Texting, dismissal and the FWC

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

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In the driver’s sheet

The importance of correctly characterising employee conduct

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

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May The Force Be With You

FWC finds resignation warranted

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

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Tripping Out

FWO investigation finds Uber drivers not employees

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

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Doing It For The 'Gram

Social media, sporting clubs and athletes

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

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The Stalking Horse

FWC warns of abuse of stop bullying jurisdiction

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.

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Super (not so) Simple

Court finds independent contractor owed superannuation

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.

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The Clash

The FWC on employee disputes and workplace bullying

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).

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Pay Attention

Director ordered to training following due diligence failure

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.

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Take It Back

Employer ordered to withdraw unreasonable safety warning

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.

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No Take Backs

Employer successfully recovers stolen money from former employee, despite deed of release

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

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Talk to Me

The importance of consultation in the redundancy process

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.

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