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In this month’s edition of Conversations we look at unacceptable workplace behaviour and how employers should manage and respond to such behaviour. We also observe what employers can learn from some recent case law around employee dismissals.

At the recent AHRI National Convention there was a focus on the relevance of people in managing the modern workplace within the ever increasing presence of AI. In this month’s edition of Conversations we feature our thoughts on the topic and more.

In King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017] FWC 3867, the Fair Work Commission considered an unfair dismissal application where an employee was dismissed after it was found that he bullied another employee about joining the union.

Technology is often used to make the performance of our daily or work tasks easier – however it has become increasingly sophisticated and can now be used to measure and monitor our every move and task.

In Shakir v Department of Family and Community Services [2017] NSWIRComm 1040, Commissioner Newall upheld the dismissal of an employee but criticised the employer for relying on conclusions made in an investigation report that were factually wrong.

It is no secret that the Fair Work Ombudsman (FWO) has been cracking down on employers breaching their employment obligations under the Fair Work Act 2009 (Cth) (the FW Act) and exploiting vulnerable workers in order to gain financial and competitive advantage. Indeed, the Federal Government is very close to passing a Bill through Parliament that will not only impose much harsher penalties on employers but will also increase the FWO’s powers to investigate this type of behaviour.

In a recent decision of the NSW Industrial Relations Commission (NSW IRC), a senior corrective services officer (the Employee) was reinstated following his dismissal for involvement in an incident which lead to the escape of a maximum security inmate (Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051).

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.

Google’s much-publicised decision to dismiss an employee in America who wrote an internal memo to all staff criticising the tech company’s diversity policies has highlighted the necessity of a workplace Code of Conduct.

Employers and human resources professionals may often be provided with medical certificates which they are not quite sure about, prompting them to look at the certificate a bit more closely.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

The Fair Work Commission (FWC) has dismissed an application for unfair dismissal in Bosley v Kosciuszko Thredbo Pty Ltd [2017] FWC 3763, upholding the jurisdictional objections of the employer.

The Fair Work Commission (FWC) has dismissed an application for unfair dismissal in Bosley v Kosciuszko Thredbo Pty Ltd [2017] FWC 3763, upholding the jurisdictional objections of the employer.

An inevitable fact of a growing business is that at some point it will undergo an organizational restructure. These will undoubtedly affect employees across all levels of the company. Employers should be ready to appropriately manage and communicate these changes to employees.

HR professionals inhabit a unique environment with a unique set of challenges – they are expected to balance compliance, business interests and employee interests all at once. The most difficult position a HR professional can find themself in is being asked to carry out a business decision by a superior that conflicts with their obligations to ensure compliance with workplace laws, including the protections afforded to employees under the Fair Work Act 2009 (Cth) (FW Act).

Most workplaces have an appearance and dress code policy which commonly requires employees to wear a particular uniform or have a certain standard of appearance. Increasingly, workplaces have dropped or relaxed dress code policies which previously required that professional business attire would be worn at all times in the office.

Student accommodation provider UniLodge faced reports this month that it deducted a total amount of $74,336.00 for “rent” over the period October 2011 to April 2016 from the combined salary of two of its onsite caretakers.

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) aim to protect employees from adverse action (including dismissal) because of a proscribed reason. Proscribed reasons include the existence of a workplace right and the exercise (or failure to exercise) a workplace right.

Setting policies and procedures for the effective management of drugs and alcohol in the workplace is important, particularly for safety critical industries.

When an employer receives notice from the Fair Work Commission (FWC) of an unfair dismissal claim, the first question they should ask is – does the FWC have jurisdiction to hear the matter?

In a rare decision by the Fair Work Commission (FWC), an employee has been ordered to pay her former employer’s legal costs after it held that the employee’s application had no prospects of success, was without basis and was an abuse of process.

Section 117(1) of the FW Act states that, an employer must not terminate an employee’s employment unless, the employer has given the employee written notice of the termination date. This can sometime be problematic when termination occurs verbally before any formal written notice of termination has been prepared.

Reward and recognition programs are a great way to incentivise employees to work that little bit harder. Often these programs take the form of friendly, employer-sponsored competitions between employees where the winner takes home a prize.

The colder weather marks the start of the cold and flu season where a cough or sneeze starting from one person quickly spreads throughout the whole office. The season also creates challenges for employers who may have to manage a dwindling workforce where employees (or their family members) may be struck down with an illness and need to take personal (sick) / carers leave.

Identifying correct Modern Award coverage and classification can be challenging at the best of times and getting it wrong can have serious consequences. It is well understood that misclassifying employees can impact on rates of pay and result in underpayment claims, but employers sometimes forget that employees who are paid well above modern award base rates of pay can still be covered by a modern award for other purposes, including protection from unfair dismissal.

Workers compensation legislation in each jurisdiction provides a “reasonable management action” defence or exception to claims of alleged psychological injury. The defence states that where an employee suffers a psychological injury as the result of management action, the employer will not be liable for that injury if the management action was reasonable and carried out in a reasonable manner.

A recent civil law suit filed in the US is set to examine how an employer might be liable for an employee’s conduct on social media. The suit alleges the employer is liable for the actions and damage caused by a managing director who used his LinkedIn account for official recruiting purposes but eventually began sending unsolicited and inappropriate (e.g. sexual) messages to a prospective employee.

Uber Technologies now appears to be undergoing a major remodel of its workplace environment, including the dismissal of 20 employees and the departure of CEO, Travis Kalanick, following a self-imposed investigation into the culture of the eight-year old company.

Workplace bullying can often have a significant impact on workplace morale; however it can become compounded when the bullying occurs in small family run businesses where anti-bullying policies and procedures may not be in place.

Sham contracting and the exploitation of vulnerable workers have been hot topics recently following a series of high profile cases including the likes of 7Eleven, Baiada Poultry and Quest Serviced Apartments. The Fair Work Ombudsman (FWO) continues its crusade, investigating and litigating claims related to worker exploitation in supply chain arrangements.

As reported this month in HRM Magazine, Futurist Chris Riddell predicts that artificial intelligence will play a key role in business leadership in the next five years. Riddell says, “Artificial Intelligence will start to make decisions and will ‘co-pilot’ the running of business.” But, 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?

Recently, there has been intense focus in the media on two of Australia’s top sporting codes and their negotiations for new pay deals. The threats of strikes and boycotts highlight why it is important to have and maintain good communication between the parties in the collective bargaining process.

The issue of relocating employees from one location to another arises when a business is restructuring, when a site closes down, or when a business decides to move its operations. A recent decision of the Fair Work Commission (FWC) considered the issues of relocation, redundancy and unfair dismissal.

Earlier this month, the Fair Work Commission (FWC) Full Bench handed down its decision in relation to an application to deal with a dispute in accordance with the dispute settlement procedure in the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the EBA). This decision was an appeal of an earlier decision by Commissioner Bissett with respect to the interpretation of clause 19 of the EBA that related to payments into income protection insurance schemes.

Earlier this month, the Senate Economics References Committee (the Committee) released its report on non-compliance with superannuation guarantee legislation in Australia. The report, titled “Superbad – Wage theft and non-compliance of the Superannuation Guarantee”, documents the findings of the Committee’s inquiry and makes recommendations for changes to the law and initiatives run by government agencies to deal with non-payment of superannuation by employers.

Just one look... or in the case for one former job centre employee, thirty five unauthorised “looks” at an ex-lover’s job seeker profile.

The internet and email are essential tools for most businesses. Email makes correspondence and transactions simple and efficient, but it is also easy to send the wrong email to the wrong recipient!

In our last instalment of our three part blog series we will focus on the most extreme form of enforcement under the Model Work Health and Safety Act, prosecutions.

The plight of trolley collectors has been a focus of the Fair Work Ombudsman (FWO) for many years, and the Australian Industrial Relations Commission before that. In 2011, the FWO shifted its focus to the end users of the trolley collecting supply chain – big supermarkets.

In part one of our three part series we discussed improvement and prohibition notices under the Model Work Health and Safety Act. In this second part we will focus on enforceable (or WHS) undertakings.

The Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (the Commission) the power to make orders to stop bullying where it is satisfied pursuant to section 789FF that: (1) A worker has been bullied at work by an individual or group of individuals; and (2) There is a risk that the worker will continue to be bullied at work by the individual or group.

In part one and part two of our Employment Essentials Series we discussed procedural aspects of termination and the need for substantive fairness. In this third instalment we will discuss the various outcomes and ramifications for employers if they fail to settle an unfair dismissal claim before proceeding to a formal hearing and the potential fallout post proceedings.

Workplace gift giving can be a blessing and a curse for employers. On the one hand it brings out the generous, team-oriented qualities in employees but equally, it can cause animosity between employees not to mention embarrassment and even anger.

Under the Model Work Health and Safety Act (WHS Act), the work health and safety regulator in each State and Territory is responsible for compliance and enforcement of the WHS Act. Some of the ways the regulator seeks to secure compliance includes prosecution, improvement, prohibition and penalty notices and enforceable undertakings. In this blog, we will focus on improvement and prohibition notices.

When considering whether a dismissal is unfair, the Fair Work Commission (the FWC) will have regard to two types of fairness – procedural fairness and substantive fairness.

Recenty, MAdE Establishment Group (the Group) and its celebrity chef director and founder went public with a mea culpa that it underpaid the wages of at least 162 employees across its Melbourne restaurants.

You have spent time, money and resources to hire the best candidate for the job and you cannot wait for them to get into their role. Before they start, your new worker needs to be trained, especially in workplace health and safety (WHS).

Employers should not underestimate the importance of investing in workplace health and safety, including training for employees as well as ensuring that new hires or those promoted are qualified to perform the tasks of their new role.

Whether the termination of an employee’s employment was procedurally fair or unfair forms the basis of the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). Employers can often put themselves at risk of unfair dismissal claims when procedural fairness is not provided to employees during disciplinary action and / or the termination process.

It is quite common to be walking on a busy street or in a shopping centre and be approached by someone asking for a donation for a specific charity. Have you ever wondered about how much these “fundraisers” are being paid? Well, the Fair Work Ombudsman (FWO) has.

Mobile phone use during work hours can cause an unwanted distraction. Other times, the use of mobile phones may be restricted due to safety reasons.

A site operator has been ordered to share the damages bill with a negligent worker and subcontractor employer after the ACT Supreme Court found that the site operator’s safety rules and practices were deficient.

The FWO has stressed that workers (i.e. labour hire and employees) must be paid the correct wage in accordance with the Horticulture Award. It is likely that the FWO will be closely monitoring the horticulture industry (and other industries where visa holders are predominately employed) given the high incidences of exploitation that have recently been reported in the media.

The requirements around when notice of termination is required and how to provide that notice can be difficult for employers. An employer’s obligations with respect to notice and notice periods are specified in the Fair Work Act 2009 (Cth) (FW Act).

The Fair Work Commission (FWC) has released its Unfair Dismissals Quarterly Report for the period October 2016 to December 2016 (the Report). The Report revealed that there has been a decrease in the number of applications lodged with the FWC compared to the same period in previous years.

We know people can say or do things that we do not mean when we are under pressure, feeling stress or are angry. In rare incidences (often in the context of disciplinary meetings), an employee may indicate that they wish to resign only to later try to withdraw their resignation or claim that they did not really resign.

Human resources management is experiencing a digital revolution as online platforms and data collection solutions flood the market. If the make-up of a workforce can be understood and managed through data alone, will future HR departments be the domain of data analysts?

Superannuation payments and calculations can be a tricky thing for employers, of all sizes, to get right. These challenges came to light last month when the Financial Sector Union of Australia (FSU) claimed that 7,000 part time staff did not receive their full super entitlements from the Commonwealth Bank of Australia (CBA), with claims dating as far back as 2009.

Today it seems like every HR magazine or e-newsletter contains an advertisement or article on “HR tech” that promises to provide all manner & quantity of data on a workforce. There is also a running conversation about how HR will become more automated in the future with computers supervising robots!

The Fair Work Commission has often held that a dismissal will be found to be harsh, unjust or unreasonable when one of the reasons for the termination of employment included an event which occurred earlier and which was not addressed at the time. This is encapsulated in the concept of “use it or lose it”.

The Federal Circuit Court of Australia’s decision in Fair Work Ombudsman v Rubee Enterprises Pty Ltd & Anor [2016] FCCA 3456 (Rubee’s Case) has penalised a cafe in Albury NSW $532,900 for exploiting five foreign employees. This is the largest fine ever ordered as a result of legal action by the Fair Work Ombudsman (FWO).

Restraint of trade clauses are often used in employment contracts to prevent or limit an employee from engaging in conduct that is adverse or inconsistent with the employer’s interests once employment has ended. Typically, employees are restrained from soliciting clients or establishing competing businesses.

In recent years we have observed the increased use of technology and big data in Human Resources. The question is whether this shift is taking the “human” out of Human Resources by devaluing genuine personal interactions and conversations when it comes to matters such as employee wellbeing and performance.

Restructuring and redundancies can be difficult under the best of circumstances. Employers have obligations to their employees during these times and sometimes the fast paced demands of the business are at odds with those obligations. In a recent decision, Williams and Ors v Staples Australia Pty Ltd [2017] FWC 607, the Fair Work Commission (FWC) examined the obligations of a particular employer and found that its hasty implementation of redundancies resulted in four unfair dismissals.

In Govier v UnitingCare Community [2017] QCA 12, an employee’s appeal was dismissed, confirming an earlier decision that her employer did not breach any duty of care when it issued letters to the employee in the course of an investigation, resulting in aggravation of her psychiatric conditions.

All employers should be aware that discrimination in the workplace on the basis of a “protected attribute” is unlawful. For example, Australia’s anti-discrimination legislation provides that it is unlawful to discriminate on the basis of “race.”

What does an employer do in circumstances where it has granted flexible working arrangements and it is no longer able to accommodate the employee?

In a recent study commissioned by the Commonwealth Department of Employment, it was found that in the last five years there were over half a million Australians engaged in (or who were engaged in) unlawful work experience.

Employers seeking to undertake Commonwealth funded building and construction work will be required to ensure that their enterprise agreements comply with the 2016 Building Code by 31 August 2017 under a new Bill introduced in Federal Parliament.

A Qantas flight attendant (the Applicant) who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission (FWC) after it found that the decision to terminate the Applicant’s employment was harsh.

Employees have ready access to their employer’s confidential information during the course of their employment. For an employee, this information is important in order to carry out their duties but for an exiting employee, they may be tempted to improperly retain confidential information believing it will be useful in their new position.

Since the tragic events of October this year, Queensland theme park Dreamworld has come under intense scrutiny from the public, the media and a range of investigative bodies. The park gates have remained closed to guests over recent weeks while investigations and audits of the park’s facilities and processes have been conducted.

In June this year, a Victorian textiles company was fined $7,000 for breaching work health and safety laws when a subcontractor truck driver was floored by a 185kg bale of wool. In an appeal of that decision earlier this month, the County Court of Victoria increased the penalty to $50,000 when the Office of Public Prosecutions successfully argued that the $7,000 fine was inadequate.

Underpayment and sham contracting in the labour supply chain has been the focus of much of the Fair Work Ombudsman’s (FWO) and the media’s attention this year. The FWO has conducted a number of campaigns and inquiries into industries where the use of labour hire and independent contractors is prevalent. In some circumstances, it has taken legal action where workers have been underpaid minimum wages and conditions.

The decision of the Fair Work Commission in NW v Taitung Australia Pty Ltd [2016] FWC 7982 reminds employers of the requirement to act quickly where an employee has been found guilty of serious misconduct even if the matter is the subject of a police investigation.

This is the first decision in which the FWO has secured penalties against a master franchisor for its involvement in contraventions of the FW Act.

Earlier this month, the Fair Work Ombudsman (FWO) announced that cleaners working at hotels run by Oaks Hotels & Resorts Limited (Oaks), a major operator of more than 43 properties across Australia, have been back paid a total of $1.9 million.

The Fair Work Act 2009 (Cth) (FW Act) provides a protection from unfair dismissal and permits an application to be made for remedy. In our previous blog Objection! – Access to the Unfair Dismissal Jurisdiction we outlined some of the jurisdictional objections that can be raised by an employer when an unfair dismissal is lodged by an employee. Access to the unfair dismissal jurisdiction however is limited to eligible employees and an objection may also be lodged where it is disputed that the applicant was not an employee. In some circumstances, it may not be entirely clear whether an applicant was an employee rather than an independent contractor or volunteer.

The media has extensively reported on the tragic events at Dreamworld. Whilst this event was shocking, it serves as a reminder that everyone within a business has a role to play when it comes to complying with work health and safety (WHS) laws.

The Fair Work Commission (FWC) has recently handed down two separate decisions confirming that angry and aggressive conduct in the workplace will provide an employer with a valid reason or reasonable grounds (as per the Small Business Dismissal Code) for terminating an employee’s employment.

In September 2015, the Fair Work Amendment (Gender Pay Gap) Bill 2015 (the Bill) was introduced in the Senate by the Australian Greens Deputy Leader. The Bill was recently considered by the Senate Education and Employment Legislation Committee who will release a report in mid-November 2016.

The Fair Work Commission’s (FWC) recent decision in CA v Lane Cove Retirement Units Association Ltd t/as Pottery Gardens Retirement Village [2016] FWC 7504 put the small business fair dismissal code (the Code) in the spotlight.

Recently it was reported that a Sydney factory employee applied to the NSW Supreme Court in an attempt to claim a share of the $40 million jackpot, won by 14 employees of a cable manufacturer in Liverpool.

Last month, the Fair Work Ombudsman (FWO) launched unprecedented legal action in the Federal Court against a large mushroom farm that paid hundreds of its employees based on how much they picked at a rate of 60 to 80 cents per kilogram. It is alleged that the employees had been exploited and underpaid almost $650,000 in eight months.

The Western Australian Industrial Magistrates Court’s (the Court) decision in Simone Jade Stewart v Next Residential Pty Ltd [2016] WAIRC 00756 (16 September 2016) (Stewart’s Case) is a warning for employers to carefully review their current employment contracts, especially for award covered employees who are employed on an “annual salary” in accordance with an award term.

Fair Work Commission’s (FWC) Full Bench decision in Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub Case) is a good reminder for employers about the need for clarity with respect to termination of employment and in particular when a termination is to take effect.

The Queensland Industrial Relations Commission (QIRC)’s decision in East Coast Pipeline Pty Ltd v Workers Compensation Regulator [2016] QIRC 101 (East Coast Case) suggests to employers that internal investigations should be both in accordance with the applicable policy and flexible enough to adapt to the situation rather than simply follow a rigid process that may not fit the circumstances.

In a recent decision of the Fair Work Commission (FWC) (B v Conair Australia Pty Ltd [2016] FWC 6520) a HR manager was found to have been fairly dismissed after taking her personnel file from her employer’s premises and not returning it when directed to do so.

Airtasker is the most recent operator in the “gig” economy facing allegations of sham contracting and underpayment for work performed.

A senior Woolworths payroll clerk who stole over $200,000 and attempted to take a further $400,000 to fund her lifestyle in the USA while representing Australia in a bodybuilding competition has been sentenced to 5 years in prison.

In January 2015, a revised Franchising Code of Conduct (the Code) was enforced. The purpose of the revisions was to introduce financial penalties and infringement notices for serious breaches of the Code.

As part of the four yearly review of modern awards, the Fair Work Commission (FWC) is considering the proposal made by the union movement to insert a family and domestic violence leave (FDVL) clause into all modern awards.

It has been more than two years since modern award penalty rates were identified as an issue for review by the Fair Work Commission (FWC) and there is still no ruling from the FWC Full Bench as to whether penalty rates in the hospitality and retail industries will change or remain the same.

Recent Australian Bureau of Statistics (ABS) data has revealed an increase in the number of Australians regularly working from home. Regardless of the reason an employee works from home, confidentiality must be managed through an appropriate policy that addresses situations that are likely to arise both in and outside the workplace.

There has been much attention on the new Netball Australia collective agreement (the Agreement) announced last week. The Agreement, described as a “landmark deal” for women’s sport increases the minimum player salary from $13,250 per year to $27,375 per year.

Thankfully, most employers will never have to concern themselves with disciplining employees for their out of hours conduct, but on occasion an employee’s conduct after business hours and away from work can be so damaging or dangerous that an employer will have little option but to get involved.

One of the first decisions to be made by an employer when confronted with a situation warranting investigation is whether the matter can be adequately investigated internally or whether investigation by an independent third party is warranted.

The NSW Government has proposed changes to the exercise of functions by the NSW Industrial Relations Commission (NSW IRC) in response to a marked decreased workload level.

The Fair Work Commission (FWC) recently heard the final submissions of parties in the casual employment case arising out of the four yearly review of modern awards (the Review). Of particular interest to the parties at the hearing was the operation of casual conversion clauses and how they affect ‘service’ as it is defined in the Fair Work Act 2009 (Cth) (FW Act).