Posts: Disciplinary Action

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Disciplinary Action

Workplace Relations Review

Cases and Legislation June 2020

Cases and Legislation June 2020 NEWS ALERTS NSW Work Health Safety Legislation Amendments The Work Health and Safety Act 2011 (NSW) (WHS Act) was recently amended giving effect to some of the recommendations of the 2018 national review of the modern WHS Act. ...

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Workplace Relations Review

Cases and Legislation February 2020

Cases and Legislation February 2020 Post-Employment Conduct “Ex-employee fined for contempt after breaching Court undertakings" Maxilift Australia Pty Ltd v Donnelly [2020] SASC 8 Executive summary A former sales manager has been fined $7,115 and found in contempt of...

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Workplace Relations Review

Cases and Legislation October 2019

Drunkenness and vomiting at after work drinks did not justify employee's dismissal.

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Workplace Relations Review

Cases and Legislation September 2019

Employers' duty of care for employees, duty of care and contributory negligence, workers compensation and working from home, multiple roles and overtime, general protections and reason for adverse action.

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Workplace Relations Review

Cases and Legislation August 2019

Employee conduct and codes of conduct, employers’ liability and employee out-of-hours conduct, employer in breach of privacy laws, redundancies and suitable alternative employment, workplace bullying and disciplinary action

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Workplace Relations Review

Cases and Legislation July 2019

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

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Why clubs need to regulate fan and member behaviour at sporting events

Have a seat and take a stand

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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Folau sacking case could change how employers deal with discrimination

"Impossible position" for employers

As the Israel Folau saga enters another chapter, our Managing Director Athena Koelmeyer shared her thoughts with Smart Company’s News Editor, Matthew Elmas, on how this case will potentially affect all employers and employees not just sporting organisations and athletes.

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Employer ordered to withdraw unreasonable safety warning

Take It Back

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

De-Fame!

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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Employer successfully recovers stolen money from former employee, despite deed of release

No Take Backs

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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FWC upholds dismissals from workplace with “robust environment”

A break from banter

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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FWC finds employee’s persistent breaches justified dismissal

On repeat

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

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Adverse action taken against employee for failure to perform duties

Muddying the waters

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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Employees, their relatives and social media – where is the line?

Brand -new day

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

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Best practice for dealing with poor performance issues

Better safe than sorry

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).

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Flight attendant’s claim that excessive drinking was not his fault rejected by FWC in unfair dismissal case

Flight of fancy

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.

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Sports Law - Employment Contracts

Law of the jungle - Panthers v Tigers

The last 48 hours has seen a lot of discussion in sports media about employment contracts centred around the Wests Tigers, Ivan Cleary and the Penrith Panthers

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Dismissed employee compensated despite vulgar language

Size doesn’t matter

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

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Vehicle services attendant dismissed for lying on his CV

The truth Hertz

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.

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What to do when a client or host employer won’t work with an employee

You’re banned

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.

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FWC upholds dismissal following obstructive and uncooperative conduct of employee and union rep

I Want It That Way

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

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Employee awarded compensation for dismissal over Facebook Messenger

Respect my authority

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

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FWC sends strong warning to employees about social media

Say it to my face

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

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Inappropriate workplace behaviour justified summary dismissal

Not on the shop floor

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.

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Dishonesty in the workplace and the potential remifications

Big Little Lies

If dishonesty does find its way into the workplace, employers must act swiftly and hold employees accountable where necessary, so that it does not become a part of the workplace culture.

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Worker’s aggressive response was a breach of Code of Conduct and warranted summary dismissal

Well that escalated quickly

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.

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How to deal with latecomers in the workplace

“I’m late; I’m late, for a very important date!”

In a recent Fair Work Commission decision the FWC commended the Employer for its process in terminating the employment of a habitual latecomer.

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Why it is important to have clearly written and communicated workplace policies

Loud and Clear

When an employer decides it would like to implement a new policy or amend one of its existing policies, key steps in the process are sometimes overlooked – communication and training.

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Remedies for unfair dismissal applications

A bird, a bus and a bruised (but not broken) employment relationship

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.

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Recruitment Company snowed under by social media reaction to misbehaving employees

Cold As Ice

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.

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Who can be a support person?

Someone to Lean On

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.

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The perks and pitfalls of texting in the employment relationship

I’ll txt u the deets

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.

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Employee awarded compensation after employer sidesteps representative

I’ll get my people to call your people

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.

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The support person in the disciplinary process

I’ll be there for you

Employees often argue that they have a “right” to a support person when they are invited to attend a “show cause” or termination meeting.  Do employees have this “right”? Should a disciplinary meeting go ahead if the employee does not bring a support person?

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Best practice for dealing with poor performance issues

Better safe than sorry

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).

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Email and IT policies

Think before you click

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!

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Employer prevented from proceeding with investigation and disciplinary process

Stop right now

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.

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It’s all about the process

What to consider in the disciplinary process

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc) to overlook or shortcut the disciplinary process and to proceed directly to the termination of an employee’s employment. This failure to commence formal disciplinary procedures may expose employers to liability where the employee claims that he/she was denied procedural fairness.

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Employer interest in employee’s out of work conduct

Off the clock

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

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The importance of procedural fairness

“It’s all about the process”

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

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What is “Procedural Fairness”?

Employment Law Essentials

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.

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FOMODA: Fear of Missing Out on Disciplinary Action

Where employee misbehaviour or misconduct occurs, it should be addressed immediately in the workplace, if it is not, the employer is seen to have “lost” or waived the opportunity to take corrective disciplinary action.

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”.

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