Resources: Blogs

An employer who relied on their zero-tolerance alcohol policy when dismissing an employee who drunkenly tried to access the workplace out-of-hours has successfully defended the dismissal before the Fair Work Commission.

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

Ending the employment relationship can sometimes be difficult and often, those responsible for facilitating the termination are so relieved to have it all over that they don’t worry about pursuing the return of seemingly insignificant employer property, like used uniform items.

We cover a range of issues and wrap things up in our final Conversations for this year.

In Colella v Aroona P&T Pty Ltd T/A Aroona Alliance [2017] FWC 5533, the Fair Work Commission decided an unfair dismissal case involving GPS tracking, alleged absenteeism and interference with a GPS device.

It is almost undisputed that the majority of Australian workers are spending more of their time at the workplace. It is therefore unsurprising that employees and employers are becoming more concerned with the quality of the time that employees spend at work and the relationships they have with their co-workers.

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation. Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other. We look back on some of the more interesting social media cases from the year that was 2017.

In a recent Federal Circuit Court decision, Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd & Ors [2017] FCCA 2838, Judge Lucev ordered significant penalties against a Perth cleaning company and two of its directors.

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

In recent years, the Fair Work Ombudsman has made it clear that it is prepared to prosecute not only employers, but also individuals and third parties ‘involved in’ contraventions of the Fair Work Act 2009 (Cth) (FW Act). Most recently, the FWO was successful in its prosecution of a Chinese restaurant as well as its sole director, its human resources manager and its store manager for various breaches of the FW Act, which resulted in 85 employees being underpaid a total of $583,688.68 over a 16 month period.

Recently, the South Australian government announced that two of its employees engaged as carers were found unsuitable to work with children, following the introduction of a new testing and screening process involving psychological testing.

In this month’s edition of Conversations we look at: What a business should do to protect itself against sudden leadership departures; Managing flexible work requests and arrangements; The dangers of unpaid and under-paid employment; and Why one employer entered into a compliance deed to avoid potential worker exploitation. We then discuss the use of statutory declarations and the fallout of providing false statutory declarations & more.

A recent survey conducted by global workplace solutions group, ManpowerGroup, has revealed that almost 90% of workers are opting for, or at least open to, arrangements that allow for flexibility in lieu of traditional “9 to 5” work arrangements.

Just like other risks to health and safety in the workplace, a person conducting a business and undertaking (PCBU) must take steps to eliminate or minimise the risk of bullying.

In Australia, we rely on statutory declarations for a range of purposes, from declaring identity details when documents are lost to making statements about particular situations, including in the employment context.

It’s true that many safety breaches in the workplace are the result of momentary lapses in judgement, however employees who are recklessly indifferent to their health and safety obligations will not always be saved by arguing this point.

The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (FWC) a broad power to make any order it considers appropriate to prevent a worker from being bullied at work (except an order which requires monetary payment).

Earlier this year, we told the tale of the of the trolley collectors in Once upon a trolley – an ongoing saga involving underpayments, vulnerable workers and the Fair Work Ombudsman’s (FWO’s) scrutiny of labour supply chains. In that blog, we focussed on an enforceable undertaking that involved Coles supermarkets and the FWO. Now, Woolworths have come to the trolley collectors’ party, this time in the form of a Proactive Compliance Deed with the FWO.

Work experience placements, vocational placements and internships can be particularly beneficial to students as they not only provide invaluable experience in a workplace but can often lead to opportunities for permanent employment. In such cases, there must be a clear distinction between the initial unpaid engagement and the ensuing employment relationship.

Consider the scenario of a CEO who has been with a company for over ten years. The CEO advises shortly before the end of the financial year that they will be leaving to join another company… How does a business respond to this scenario?

In its first ever underpayment prosecution relying on the race discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman has successfully established that two employees of Chinese descent and Malaysian extraction were underpaid because of their race and/or national extraction.

In this month’s edition of Conversations our feature discussion is on older employees. We look at the value older employees can add to a business – think of the movie The Intern starring Anne Hathaway and Robert De Niro. We also tackle the issue of age discrimination in recruitment and look at ways to keep older employees engaged as workplaces embrace technology. We close off the discussion in our blog titled End of the line by looking at a recent age discrimination claim arising out of a termination.

At the end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”

In the modern day workplace, employers are becoming increasingly reliant on computer systems and introducing new forms of technology and equipment to increase productivity and output. It is often therefore a requirement that employees be proficient in certain computer programs or, at least, that they undergo training to become proficient.

We’ve all heard of “blind” recruiting, particularly in the early phases of the recruitment process, but what about the opposite? Actively recruiting based on a visual medium? Look no further than the “Snaplication.”

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

All too often workplace disputes arise out of conversations or meetings where the participants have wildly different versions of events. The parties then end up before a court or the Fair Work Commission (FWC) where a judge or FWC member is tasked with deciding whose evidence they prefer – essentially, who appears to be more credible and reliable.

In determining whether an employee’s termination was harsh, unjust or unreasonable, s 387 of the Fair Work Act 2009 (Cth) (FW Act) provides a list of criteria the Fair Work Commission will consider. One such criterion is whether there was any unreasonable refusal by the employer to allow the person to have a support person present in any discussions relating to dismissal.

A recent decision of the Fair Work Commission has highlighted the importance of correctly managing employees’ requests for annual leave (Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626).

Most employers and employees do the right thing with employee personal information by keeping it securely stored and protected from disclosure or loss. However, occasional slips by employees with control over personal information can be costly both in a financial sense and in an emotional sense.

Text messaging is a good way for people to communicate as messages are generally short meaning senders stick to the point and messages are direct to a person’s phone. Unfortunately there are some major drawbacks to the use of text messaging in the employment context and we have noticed a steady increase in cases before the Fair Work Commission (FWC) where text messages have contributed to the situation in dispute.

In unfair dismissal applications, the Fair Work Commission must look at the factors under section 387 of the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.

In most cases, a finding of deliberate non-compliance by a business will result in the imposition of a hefty fine by a court (a pecuniary penalty order). It is also not uncommon to see courts issue other orders such as requiring non-compliant businesses to undergo external audits or requiring managers to undergo specific training. The Federal Circuit Court of Australia has recently utilised the wide scope of this power in Fair Work Ombudsman v Greenan (No. 2) [2017] FCCA 2059.

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.

In Willmot v BlueScope Steel Limited [2017] FWC 4309, the Fair Work Commission considered an unfair dismissal application made by an employee who was summarily dismissed for serious misconduct in relation to his worker’s compensation claim.

When employers conduct an organisation-wide review of their operations, it can be both an exciting and challenging time. There are significant gains to be made by identifying inefficiencies and addressing them. However, the desire to move too swiftly and rush this process should be avoided. Moving too fast may result in employers either intentionally or unintentionally disregarding their legal obligations to employees.

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).