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

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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De-Fame!

Employer ordered to pay $237,000 for defaming former employee

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

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Family Feud

FWC orders managing director to stop bullying HR manager

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.

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No good in goodbye

Employee on stress leave did not abandon employment

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.

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Safety Is Not A "Sometimes Thing"

Employer fined for failing to effectively enforce safe systems

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.

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Valid point

Unfair dismissal claims and “valid reasons”

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.

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The truth will set you free

Consequences of providing false and misleading evidence

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.

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Ten in the bin

Injunctions against suspensions from work

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.

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A break from banter

FWC upholds dismissals from workplace with “robust environment”

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

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You've got email

WCC finds addressing email issues with worker not reasonable action

Under workers compensation legislation, the “reasonable action” defence is one often relied upon by insurers against claims of work-related psychological injury.

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Handle with care

Managing the new family and domestic violence leave entitlement

The introduction of family and domestic violence leave entitlements into modern awards and the Fair Work Act 2009 (Cth) (FW Act) last year was a significant development in Australian workplace relations.

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On repeat

FWC finds employee’s persistent breaches justified dismissal

The matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.

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Care and control

Negligent host employer ordered to pay damages to injured labour-hire worker

A recent decision from the District Court of New South Wales has highlighted the importance of a host employer’s duty of care to any labour-hire worker it engages where the work directions and conditions are within the host employer’s knowledge and control.

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Who's the boss?

Employee loses redundancy pay after refusing other acceptable employment

The FWC has reduced an employee’s entitlement to redundancy pay to nil after an employer successfully argued that it obtained ‘other acceptable employment’ for the employee, which the employee had refused.

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No ordinary job

Employer fails to demonstrate that redundancies were due to the ordinary and customary turnover of labour

The FW Act provides a minimum entitlement to redundancy pay in situations where an employee’s position is genuinely made redundant.

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Put it in writing

Court rejects employee’s proposed adjustments to workplace

Australia’s anti-discrimination legislation imposes positive obligations on employers to make reasonable adjustments in the workplace to accommodate an employee’s disability, unless doing so would cause unjustifiable hardship to the business.

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Weighing the costs

Employer awarded $35,000 in costs after defeating adverse action claim

In a matter recently before the Federal Circuit Court of Australia an employer successfully claimed that an employee acted unreasonably in the course of proceedings and the employer was awarded costs of $35,000.

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Reckless

Self employer convicted and given jail time following death of worker

Conviction under work health and safety legalisation can result in significant fines and/or imprisonment.

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Is it safe???

The importance of documented and accessible safe systems of work

A workplace incident involving a worker struck by a forklift has demonstrated the importance of having documented systems of work and induction processes in place that are accessible for all workers.

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Free free, set them free!

Common misconceptions about dismissing an employee in their probation period

An employer was ordered to pay $10,000 in compensation to a former supervisor who had been dismissed five months into her probation period.

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Culture club

Workplace culture gone wrong and how to make it right

What does “workplace culture” really mean and what happens when workplace culture becomes damaged or toxic?

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Pistol Pete

Employee who brought firearms and explosives to workplace not unfairly dismissed

We all have different hobbies, activities or interests we want to share with our friends and colleagues. However, not all interests are appropriate for the workplace.

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In conTEXT

FWC finds employee not dismissed by text message

In most cases, it is clear when an employee is dismissed or has resigned. There is usually some formal discussion or at the very least, a termination or resignation letter.

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Free Fallin'

Worker injured whilst visiting the workplace suffers work-related injury

Under workers compensation legislation, an employer will only be liable for an injury if that injury arises out of or in the course of the worker’s employment.

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Anyone can accessorise

The accessorial liability provisions of the FW Act

Employees making claims against their employers are able to name individuals they believe to have been involved in the contraventions of the FW Act that make up their claim.

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Muddying the waters

Adverse action taken against employee for failure to perform duties

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason.

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Fly, eagle, fly

Lessons from the Manly Sea Eagles head coach resignation saga

The NRL’s Manly Sea Eagles have faced an uncomfortable situation regarding a key employee in recent times.

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I’m sorry, Dave. I’m afraid I can’t do that

Can a computer be the decision-maker in an adverse action decision?

As the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

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