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FWC: Ruling on Out-of-Hours Work

Employment Law – Background

In Shea Munro v Wilmar Australia, the Fair Work Commission ruled that whilst working out of hours during carers leave was not a valid reason for dismissal, a refusal to follow a lawful and reasonable direction to provide information about the out of hours work justified termination.

Employment Law – Facts

In essence:

  • Munro was employed by Wilmar Australia, a sugar cane operator, across a range of roles including fort lift operator, engineer’s assistant, general mill worker and roving driver.
  • Munro also operated his own business offering cane harvesting and slashing, lawn mowing and agricultural equipment repairs.
  • When he was hired, Munro assured Wilmar that he could safety work for them whilst running his own business, by employing a casual employee to fulfil his duties when he was rostered on at Wilmar.
  • In August, Munro was granted a week’s paid carer’s leave as his wife had been hospitalised. However, Wilmar discovered that Munro has been working in his own business harvesting cane during that time.
  • Munro was issued with an Intolerable Breach Notice and a list of conditions to comply with, such as submitting weekly time sheets indicating the time he spend working in his own business.
  • However, Munro refused to accept Wilmar’s terms, claiming that it was an attempt to make him resign and that he cared for his family in the evenings and had only worked on his business during his free time.
  • Wilmar argued that Mr Munro had engaged in serious misconduct by undertaking work on his paid leave days and that he had also failed to follow a reasonable direction by refusing to disclose the extent and timing of his activities when working for his business. They claimed they needed this information to manage potential fatigue and safety issues.

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • held that Mr Munro’s claim for carers leave was genuine as he cared for his partner during the evenings, when he was normally rostered on for work
  • established there was no misconduct on the basis that where other activities “occur outside the worker’s ordinary hours of work, and there is adequate care for the ill or injured family member, this should be of no concern to the worker’s employer”
  • found that Munro’s refusal to provide the information was a valid reason for dismissal. This was because Wilmar had a duty of care to ensure Munro was not fatigued, and therefore was sought for an “appropriately legitimate purpose”
  • ruled the termination of Munro was not harsh, unjust or unreasonable

The decision is available for you to read through the hyperlink:

Mr Shea Munro v Wilmar Australia Pty Ltd  [2017] FWC 2493 [...]  READ MORE →

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Religious Law Trumps Dismissal

The Supreme Court has confirmed the power of religious laws within employment contracts, in ruling that administrators of a Sydney synagogue wrongfully dismissed a high earning rabbi when they made him redundant. The court confirmed that his employment contract conferred lifetime tenure under Orthodox Jewish Law.

Employment Law – Facts

In essence:

  • Administrators were called in to assist the Rose Bay synagogue over concerns about finances and declining congregation.
  • In April 2017 the administrators sent the rabbi a “termination” letter after concluding they could no longer afford the rabbi’s remuneration package. The rabbi had earnt over $2million over the last three years.
  • However, the rabbi claimed that his employment contract was bound by the Orthodox Jewish law principles of Halacha, which made a guarantee of lifetime tenure (Hazakah), a contractual term by incorporation or implication.
  • The administrator argued that the principles of Halacha, including Hazakah, were not incorporated into the employment contract and they were entitled to end the rabbi’s contract.

Employment Law – Decision

Justice Brereton of the Supreme Court:

  • held that the rabbi was unlawfully dismissed
  • accepted that the rabbi’s employment contract included a guarantee of lifetime tenure (Hazakah), unless a religious court established there were reasonable grounds for dismissal under the Din Torah process of arbitration. This could include “fundamental non-performance of his rabbinical duties” under Jewish law (Halacha)
  • confirmed, citing Engel v The Adelaide Hebrew Congregation, that “the parties to a contract governed by Australian law can incorporate into the contract, as terms of the contract, provisions of another system of law, including Jewish law. Alternatively, if not incorporated, then ‘Hazakah’ is an implied term of the contract”
  • emphasised that it was “inconceivable” that the parties did not intend for Hazakah to be a term of the contract as any arrangement other than Hazakah, would have been antithetical to Orthodox Jewish life

The decision is available for you to read through the hyperlink:

In the matter of South Head & District Synagogue (Sydney) (Administrators appointed) [2017] NSWSC 823 (22 June 2017) [...]  READ MORE →

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Termination of Employee on Sick Leave “Illogical”

Employment Law – Background

In the recent case of Bennett v Colin Joss & Co P/L t/a Joss Facility Management, the Fair Work Commission ruled that an employer’s reason for dismissing a cleaner on sick leave was “intemperate, illogical and devoid of compassion”.

Employment Law – Facts

In essence:

  • Ms Bennett was employed as a cleaner by Joss Facility Management for approximately 5 ½ years on a permanent part-time basis
  • In 2014 she took 10 weeks unpaid sick leave for foot surgery. Again, in August 2016 she took unpaid sick leave for surgery on the other foot which required a long recovery period
  • Ms Bennett provided ongoing medical certificates which stated she was unfit for work for fixed periods of time
  • In December, the company required Ms Bennett to complete a Functional Job Description. In January her treating doctor also did so, and provided a certificate stating she was unfit for work until 13 February
  • Ms Bennett was contacted by the company on 16 January, where she stated she had a doctor’s appointment on February 10 where she expected that her return to work date would be clarified
  • However, on 6 February, before the scheduled doctor’s appointment, the company’s injury department manager and legal counsel, phoned Ms Bennett informing her that her employment was terminated as she could not perform the inherent requirements of her position. They had no medical advice to support this decision.
  • Three days later, Ms Bennett attended her scheduled doctor’s appointment and was given a certificate of fitness to resume her duties on 14 February.

Employment Law – Decision

The Fair Work Commission:

  • Held that the reason given for the dismissal was “erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate and devoid of compassion”
  • Believed that the falsity of the employer’s decision to dismiss Ms Bennett was “blatantly exposed by the medical clearance to return to work provided four days after the dismissal” and that this decision was “extraordinarily hasty”
  • Stated that the dismissal included “very regrettable procedural deficiencies” which denied Ms Bennett “natural justice”, as Ms Bennett was not provided the opportunity to respond
  • Noted that termination of employment by telephone or other electronic means should be strenuously avoided
  • Concluded reinstatement was an appropriate remedy

The decision is available for you to read through the hyperlink:

Bennett v Colin Joss & Co P/L t/a Joss Facility Management U2017/1880 [2017] FWC 3669 [...]  READ MORE →

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Employment Law – Dismissal for pornographic emails

Employment Law – Background

In B v Mid North Coast Local Health District [2017], the NSW Industrial Commission found that despite a woman’s sacking for amassing thousands of sexually explicit emails on her work computer being valid, the dismissal was still harsh.
Facts
• The woman was working with Mid North Coast Local Health District as an assistant to the district manager of Mental Health Services
• She was found to have received, stored and sent a large amount of emails which were “pornographic, graphic (violence) and generally inappropriate in nature”
• She was sacked for inappropriately using the workplace email system, breach of the code of conduct and communications policy and serious misconduct
• She argued that her employer’s email system should have had a filtering system in place to prevent inappropriate emails
• It was also argued that she was unaware of the communications policy, despite the fact that [...]  READ MORE →

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Employment Law – The Need for Proper Workplace Investigations

Employment Law – Background

Employment claims like bullying and unfair dismissal continually on the rise in employment law. Consequently, employers are increasingly required to take pro-active steps to investigate suspected workplace incidents and disputes before they lead to such claims.

A workplace investigation is a formal investigative process into an alleged workplace incident or dispute and it may be necessary to undertake same even if the complainant objects to it (ie, because they only wish to make an informal complaint). [...]  READ MORE →

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Employment Law – s 457 Visa Entitlements

Employment Law – Background

The Australian Government announced the abolition of the Temporary Work (Skilled) visa (subclass 457 visa) in April 2017. They will be replaced with the Temporary Skill Shortage (TSS) visa in March 2018. Consequently, employment law questions have arisen regarding the entitlements afforded to such workers in this transition period.

Common questions include:

  • Could the employee successfully claim unfair dismissal?
  • Is an employee on a 457 visa entitled to redundancy pay if there is no further work when the visa expires?

Employment Law – The Fair Work Act 2009 (Cth)

s386(2) provides that an employee is excluded from claiming unfair dismissal if:

  • the employee is employed on a contract;
  • for an unambiguous specified period of time; and
  • whose employment is terminated at the end of that specified period

Employment Law – Case Decision

A decision of the Full Bench of the (then) Australian Industrial Relations Commission held that a s457 visa can be used to specify the fixed time period of an employment contract. This is provided that the parties have a sufficiently proven understanding of the terms of the visa and the contract of employment. This understanding must therefore include the period of employment and most notably, the end date. [...]  READ MORE →

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Employment Law – Incapacity Not a Refusal to Work

Employment Law – Background

The Fair Work Commission has criticised a company for misconstruing an employee’s extended absence on certified sick leave as a refusal to work.

Most noteworthy, the HR team dismissed the mentally unwell supervisor via email.

The decision highlights the importance of due process in the dismissal of employees while having regard to human dignity.

Employment Law – Facts

In essence:

  • the customer service supervisor was employed at Komatsu
  • the supervisor said he was “directed” to take sick leave in March 2015 due to “health and well-being”
  • he failed to meet his sales budget KPI’s. As a result, he was placed on a performance improvement plan in August 2015
  • the supervisor began experiencing mental health issues in March 2016. Consequently, he was taken off the performance improvement plan
  • furthermore, he experienced difficulties with his new manager which also contributed to his mental health problems
  • Komatsu encouraged the supervisor to participate in a return to work plan
  • additionally, Komatsu reconfigured its management structures to prevent the supervisor interacting with his previous manager
  • the supervisor was dismissed via email in November 2016

Employment Law – Decision

The Fair Work Commission:

  • held that the medical evidence confirmed the employee’s incapacity to work rather than his refusal to perform work
  • held there was no valid reason for the dismissal
  • underlined the need to establish the illness was not genuine in order to treat absence as a refusal to work
  • noted the mandatory opportunity for an employee to be provided with a ‘show cause’ meeting before any dismissal is made
  • stressed that dismissal via electronic means should be “strenuously avoided”
  • suggested Komatsu review its employee management practices
  • therefore ordered Komatsu to pay the supervisor $1,250 in compensation

The decision is available for you to read through the hyperlink:

John Finnegan v Komatsu Forklift Australia Pty Ltd [2017] FWC 2433 (10 May 2017) [...]  READ MORE →

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Fair Work Commission: On-Hire Worker Unfairly Dismissed

Employment Law – Background

In Tasmanian Ports Corporation Pty Ltd t/a Tasports v Mr Warwick Gee, the Fair Work Commission confirmed that labour hire companies cannot dismiss workers on the grounds that they have run afoul of a host employer.

Employment Law – Facts

In essence:

  • A shiploader was dismissed by TasPorts in 2015 after his access to a site in Tasmania was revoked by his host employer, iron ore miner Grange Resources Limited
  • Grange Resources accused the shiploader of misconduct and blocked his access to the port after he allegedly failed to follow reasonable work directions, breached reporting protocols and posted unauthorised photos of their assets on social media
  • Tasports argued that there was a valid reason to dismiss the shiploader under s387(a) of the Fair Work Act as he no longer had the capacity to do the job and access the site

Employment Law – Fair Work Commission Decision

The full bench of the Fair Work Commission:

  • Concluded that the Grange Resources removing the shiploader from a site was not a valid reason for their dismissal, utilising the principles set out in Kool v Addeco which established that the individual circumstances of the case determine whether there was a valid reason.
  • They confirmed the approach taken in the Adecco and Pettifer cases, whereby “the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee” and that “labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly”
  • Found that Tasports had failed to establish that the host employer had a legal right to remove the ship loader, or that it was unable to maintain his employment
  • Criticised the fact that Tasports had failed to independently investigate whether the shiploader committed the alleged misconduct. They also failed to adequately consider alternatives for the shiploader’s redeployment
  • Referred the matter back to the deputy president to consider the appropriate remedy

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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Employment Law: Compensation for Unfairly Sacked Truckie

Employment Law – Background

In SR v Geelong & Surfcoast Laundry T/A Swim Alumni Pty Ltd, the Fair Work Commission ruled that a truckie involved in three accidents and an alleged road rage incident was unfairly dismissed.

Employment Law – Facts

In essence:

  • the employee was employed by Surfcoast Laundry as a casual truck driver from March 2015 until November 2016
  • the employee was dismissed for having three accidents in a year and for allegedly being involved in a road rage incident
  • however, the employee received no written warnings, was not told the reason for his dismissal at the time it occurred and was not given an opportunity to respond
  • Surfcoast Laundry claimed the dismissal was in accordance with the summary dismissal section of the Small Business Fair Dismissal Code which indicated that it was fair to dismiss an employee without notice or warning if an employer believes on reasonable grounds that an employee’s conduct was sufficiently serious to justify immediate dismissal.

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • found that whilst intervention may have been warranted, the dismissal was disproportionate to the severity of the conduct
  • whilst the employer’s evidence that the accidents and alleged road rage incident contributed to the decision to dismiss, it was held that the operative reason for dismissal was the employer’s annoyance at the employee complaining about underpayments
  • held that the termination was harsh, unjust and unreasonable due to the lack of procedural fairness and the lack of a valid reason for dismissal
  • the employee was awarded $14,995 in compensation

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • fairly, consistently and lawfully respond to breaches of employment laws including Awards and enterprise agreements
  • follow good HR practice when it comes to performance management
  • not unreasonably apply the Small Business Fair Dismissal Code
  • raise any employment law questions with an employment lawyer

The decision is available for you to read through the following hyperlink: [...]  READ MORE →

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Fair Work Commission: High Earner Can Pursue an Unfair Dismissal Claim

Employment Law – Background

In Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd, the Fair Work Commission ruled that a regional director of a multibillion dollar real estate business could purse his unfair dismissal claim despite earning over the high income threshold as his duties indicated he was actually a sales representative under an Award.

Employment Law – Facts

In essence:

  • the former capital markets regional director claimed that he was unfairly dismissed when he was made redundant by Jones Lang LaSalle (Vic) Pty Ltd (JLL)
  • JLL made a jurisdictional objection to the application claiming that the employee was not a person protected from unfair dismissal within the meaning of s382 of the Fair Work Act
  • JLL argued the employee was a senior manager with significant leadership, mentoring and business generation responsibilities which went beyond the classifications in the Real Estate Industry Award 2010 (Award)
  • JLL also claimed the employee wasn’t protected from unfair dismissal due to his earnings surpassing the high income threshold

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • held that the employee could pursue his unfair dismissal claim despite earning well-over the high income cap as the duties he undertook fell “squarely within the role definition of a property sales representative’ set out in the Award
  • formed this view because the question of Award coverage is determined not by a person’s title, rather “it is the duties performed that will be of significance”
  • noted the employee’s title of “regional director” was merely a “rank or accolade”
  • held the employee’s position in the hierarchy said little about his role “other than that he was a high performing successful employee”
  • disagreed that the employee was a senior manager as there was nothing in his regular duties which could be described as a managerial function and he had no direct reports – whilst he had general leadership expectations, it was found that these would be common amongst “most employers in the real estate industry
  • ultimately, it was held that the “fundamental or principal purpose” for which the employee’s position existed was to sell real estate, which fell under the Award
  • the employee was therefore protected from unfair dismissal

Employment Law – Tips for Employers  [...]  READ MORE →

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Employment Law – Informal Approach Acceptable

Employment Law – Background

Recently, the Fair Work Commission refused an unfair dismissal claim by an employee who was terminated without receiving prior formal warnings.

The case demonstrates the flexibility of the Fair Work Commission in accepting an employer’s informal efforts to address workplace issues.

Employment Law – Facts

In essence:

  • in July 2015, the FMG Personnel Services (FMG) inventory controller and his manager discussed his work requirements for the next 12 months
  • it became evident the employee “lacked the necessary skills, capabilities and knowledge to adequately perform his role and that his manner and attitude to customers and internal personnel was unsatisfactory”
  • the manager believed the employee failed to grasp concepts required of his role or prioritise duties
  • the employee was alleged to have failed to comply with business processes. Furthermore, he was considered to be incapable of maintaining effective work relationships
  • from September 2015, a manager ‘informally’ performance managed the employee for a period of 10 months. In this period, the seating arrangement was changed to sit the employee next to the manager for daily coaching and individual training sessions
  • on one occasion, the manager conducted training for the entire team offsite despite the training being targeted only at the employee
  • in July 2016, FMG placed the employee on a performance improvement plan. Following this, the employee emailed HR denying any supposed performance issues
  • customers consequently eventually refused to communicate with the employee
  • consequently, the employee was dismissed in August 2016
  • the employee made a claim for unfair dismissal because he alleged there were no formal warnings, contemporaneous file notes or formal performance management

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • held there was a “complete divergence” between the views of FMG and the employee
  • stated “…FMG sought to clearly communicate to [the inventory controller] what their performance expectations were and that FMG diligently endeavoured to assist [the inventory controller] to achieve these expectations”
  • considered FMG had reasonable grounds to conclude an informal approach was likely to be more successful
  • furthermore, accepted FMG had genuine and reasonable concerns about the employee’s ability to comprehend deficiencies in his performance. In addition, the employee believed training and coaching were “ordinary workplace conversations”
  • stated that such “exchanges were intended to be, and are properly characterised as, informal performance management”

The decision is available for you to read through the following hyperlink:

Mr Robert Etienne v FMG Personnel Services Pty Ltd [2017] FWC 1637 (25 May 2017)

Employment law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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Employment Law – Unenforceable Restraints

Employment Law – Background

An ex-employee’s post-termination restraints have been deemed unenforceable by the Supreme Court of Victoria. This case highlights the impact of employer’s actions on the validity of a contract of employment. Furthermore, it highlights the limits of post-employment restraints in employment law. The failure to remunerate an employee can result in a constructive dismissal. Consequently, post-employment restraints may become ineffective.

Post-employment restraints are inserted in contracts of employment to prevent an employee working elsewhere. In addition, it prevents the ex-employee from engaging with former clients for a period of time. [...]  READ MORE →