Resources: Blogs

Claiming a pizza the action

Blogs
|

FWC lacks jurisdiction to deal with dispute about Delivery Driver of the Year

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.

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.

These in-house competitions are generally run at the employer’s discretion and it maintains control over the process and the outcome. However, even the most well-intentioned incentive program can come undone when employees begin treating it like an employment entitlement and feel aggrieved when things don’t go their way.

This was the case in a recent decision of the Fair Work Commission (FWC) (Ms Lynette Hart v Dominos Pizza Enterprise Ltd T/A Dominos Pizza [2017] FWC 3268) where an employee, who was a Dominos delivery driver, came second in Dominos’ 2016 Delivery Driver of the Year competition.

Having won the competition (and a new car) in 2015, the delivery driver was determined to take out the title for the second year in a row and claim the $15,000 prize. Throughout 2016, the delivery driver repeatedly complained to Dominos about the fairness of the competition including that its GPS data on deliveries was not accurate. Dominos engaged with the delivery driver about her complaints but maintained that its data was accurate and the competition was fair.

Once the competition had concluded, and the delivery driver missed out on the top spot, she made an application to the FWC under s739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute. She claimed that the FWC had jurisdiction to determine the dispute under an enterprise agreement, which contained a grievance procedure stating that if a matter remained unresolved following a series of in-house attempts at resolution, the matter could be referred to the FWC.

Attached to that enterprise agreement was an undertaking specifying that the grievance procedure only applied to matters arising under the enterprise agreement or in relation to the National Employment Standards (NES).

The delivery driver asked the FWC to order that Dominos amend errors in her records, ensure that the competition scoring system was fair and accurate for everyone and reassess the results of the competition (essentially, to crown her the winner).

In response to the application, Dominos asserted that the FWC did not have jurisdiction to hear the dispute or grant the orders the delivery driver was seeking. Dominos argued that the delivery driver’s complaints were not matters arising out of the enterprise agreement or the NES and therefore, the FWC could not deal with the dispute in accordance with the grievance procedure contained in the enterprise agreement.

Furthermore, Dominos argued that the competition was not an employment entitlement but was a discretionary scheme offered by Dominos and not by the delivery driver’s actual employer, a franchisee. Accordingly, the competition did not relate to the employment relationship.

The FWC examined the issues in dispute, the terms of the competition, the enterprise agreement and its powers to settle disputes under the FW Act. The FWC ultimately dismissed the application and accepted Dominos position that it did not have jurisdiction to deal with the dispute.

The FWC commented that the competition, its rules, eligibility, methodology and outcomes sat outside any legislation, industrial instrument, contract of employment or company policy and operated at the absolute discretion of Dominos. The FWC said that to overturn the result of the competition by ordering that the delivery driver was the winner would be a “bizarre and entirely inappropriate outcome.”

 

There are two lessons for employers from this decision:

  1. Make incentive schemes and in-house competitions discretionary – an employer should be able to set the rules, change the rules, determine the outcome or completely withdraw or discontinue such schemes and competitions as it sees fit. Competitions and incentive schemes should not form part of an employee’s contract of employment and should not be capable of characterisation as an employment entitlement.
  2. When drafting grievance or dispute handling procedures for an employment contract or an enterprise agreement, be sure to set limitations on the types of disputes that can be referred to the FWC. In this case, referral to the FWC was limited to matters arising only out of the enterprise agreement or the NES.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

Dispute about “ordinary time earnings” settled by Full Federal Court

Out of the ordinary

In a timely reminder about the importance of carefully drafting enterprise agreements, the Federal Court of Australia – Full Court has recently determined a dispute about the definition of “ordinary time earnings” in a particular enterprise agreement. In doing so, the Full Court confirmed that departures from the plain text of an enterprise agreement will not be justified (unless there is an absurdity or a very seriously anomalous result).

Read more...

Webinar Recap - Secure Jobs, Better Pay: 6 June 2023 - Key changes for employers

In December 2022, the Federal Government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) resulting in several significant changes to the Fair Work Act 2009 (Cth). These changes have and will come into effect on various dates, with the latest wave of amendments being live as of 6 June 2023.

Read more...

Secure Jobs, Better Pay: 6 June 2023 - key changes for employers on this date

The passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) has resulted in several significant changes to the Fair Work Act 2009 (Cth). With some of these changes already in force, employers must now turn their minds to 6 June 2023 – the date of which the next wave of amendments will take effect.

Read more...

FWO secures penalties against bar operator and external accounting firm

Closing time

The Fair Work Act 2009 (Cth) requires employers to keep certain employee records for a period of 7 years. These records are necessary to ensure that employees have been paid their minimum entitlements should an underpayment claim be made.

Read more...

Employer found liable for workers compensation despite worker’s unreasonable perceptions

Fact or fiction

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

Read more...

Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.