Posts: Conduct

As the end of another year approaches, employers are understandingly planning a well-earned opportunity for employees to celebrate the year that has been.

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

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

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.

Workplace investigations and the disciplinary process, labour hire company convicted, review of Miscellaneous Award 2010, recruitment, criminal records and discrimination, sports Law - player suspensions and stand downs

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.

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

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.

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

The 76ers are in the spotlight again following recent posts on the Twitter account of Bob Muscala, the father of one of its players.

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).

Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages.

Small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation.

The purpose of a conciliation is to help the parties resolve the matter without the need go to a full hearing before a FWC member.

Sports and pop culture website named ‘The Ringer’ published a report about the NBA’s Philadelphia 76ers that sparked controversy worldwide.

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

It started out as the humble smiley emoticon “:-)” in 1982 created by a computer scientist who wanted a “joke marker” to help people decipher his jokes in emails.

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

Australian sports fans were shocked when three Australian cricketers were caught up in a ball tampering scandal, leading to the downfall of the Australian cricket captain and his deputy.

Financial misconduct committed by employees is unfortunately all too common in Australian businesses. It can range from invoice forgery to stealing from the register to abusing expense reimbursement entitlements or corporate credit cards.

In a recent decision of the Queensland Industrial Relations Commission, a self-insured employer’s decision to deny a worker’s workers compensation claim was upheld on the basis that the worker’s own serious and wilful misconduct lead to his injuries.

Implementing a Code of Conduct is vital to establish and maintain expected standards of behaviour in the workplace. For some workplaces, it may also be appropriate for organisations to regulate the out-of-hours conduct and behaviour of employees.

Recently sports and news outlets were abuzz after video emerged of a NBA player captured on video allegedly confessing to cheating on his celebrity girlfriend. The twist in the tale was that the video was secretly filmed by one of his team mates and without the player’s knowledge.

There was much conversation last week regarding the certain sections of AFL crowds booing and jeering former Australian of the Year, Adam Goodes. As most people know Adam is a Sydney Swans AFL player, a proud indigenous man and a prominent advocate on behalf of the Australian indigenous community.

The decision of the Northern Territory Anti-Discrimination Commission in Frances Newchurch v Centreprise Resource Group Pty Ltd, Mr Graham Ride and Ms Sarah Ride [2016] NTADComm 1 (Newchurch decision) highlights that employers may be found to be vicariously liable for their employee’s discriminatory conduct where it is not demonstrated that it took “all reasonable steps” to prevent the employee from doing the discriminatory act.

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.

The Fair Work Act 2009 (Cth) (FW Act) provides that the Fair Work Commission may only make orders to stop bullying if it is found that the worker has been bullied at work and if there is a risk that the bullying will continue.

Last week it was reported that a Bunnings Warehouse (Bunnings) in Melbourne took the unusual step of banning customers (certain tradesmen) from its store for harassing female employees.

What should employers do when employees leave the business and fail to update their online profiles to reflect the change? Here are our top tips for ensuring that exiting employees don’t damage your business’ reputation because they failed to update their employment status online.

Generally speaking, most matters in the Fair Work Commission run in a “no costs” jurisdiction. This means that parties bringing or responding to applications in the Commission will be responsible for their own costs - no matter who is successful. However, the Commission does have some discretion to order costs in exceptional circumstances. One such rare decision was handed down last week in G v Toll Holdings Ltd [2016] FWC 2790.

The recent Australia Day off-field incident which involved an NRL Sydney Roosters player serves a warning to both employers and employees about the dangers of alcohol and social media.

On 10 July 2016, a Mount Buller Reindeer Ski Club employee posted to Facebook a scathing assessment of guests employed by recruitment company, Michael Page Recruitment. The Ski Club employee alleged that the 22 guests caused a nuisance, were heavily intoxicated and became abusive to her and the Ski Club’s Manager.

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.

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.

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.

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).

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 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’.

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.

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.

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).

There has been a spate of decisions delivered by the Fair Work Commission recently dealing with terminations of employment arising from the way employees have spoken to their managers. We all know that bad language in the workplace is unacceptable, but employers seeking to dismiss employees as the result of outbursts of profanity must still take the time to properly execute the termination process or risk adverse findings from the Commission.

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.

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 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.

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.

Last week, Fairfax reported that a Norfolk Island public servant had her pay docked after she “committed a breach of discipline” by posting comments on Facebook referring to the island’s administrator as “an a***hole”. This story is a good reminder for both employers and employees about the pitfalls of social media and the blurred line between personal and professional lives.

Employers are often uncertain as to how to deal with the out of work hours conduct of employees.

The widely reported decision of Commissioner Stanton in William F v Mt Arthur Coal Pty Ltd [2015] FWC 2343 highlights the importance of witnesses participating in the FWC’s hearing processes.

Employers are often faced with the challenging task of how to approach the situation where an employee falls foul of the law as a result of conduct in their personal life.

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 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.