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Fair Work Commission – Employee not Subcontractor

Fair Work Commission – Background

In the case of Zielke v Pro-Built Engine Reconditioning Pty Ltd [2017], the Fair Work Commission has found that a worker who claimed they were unfairly dismissed was an employee, instead of a subcontractor.

Fair Work Commission – Facts

In essence:

  • The worker claimed they were dismissed unfairly
  • The employer, Pro-Built Engine Reconditioning argued that the worker was a subcontractor, instead of an employee. This was on the basis he only worked as needed and a verbal agreement with him that he would be on a set wage per week and he would pay his own tax and superannuation
  • However, the worker claimed he was a full-time employee. This is because he was paid a net $800 per week, every week, never provided invoices to the employer and was given group certificates during his engagement

Fair Work Commission – Decision

The Fair Work Commission:

  • Found that the worker was an employee
  • This finding was on the basis that he was required to consult the employer before taking leave, had to catch up on tasks after he returned from leave and had set hours of work. He was also paid whilst on leave, didn’t advertise his services or have a separate place of work and the employer supplied all his tools
  • Concluded that the employer had no valid reason to dismiss the worker and had denied him procedural fairness

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
  • make sure that the terms and conditions of engagement are clearly set out in writing prior to the commencement of the engagement
  • Do not confuse aspects of an employment relationship with that of a subcontractor and principal
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on

More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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Employment Law – Dismissal of Injured Worker Not Discriminatory

Employment Law – Background

In Hilditch v AHG Services (NSW) Trading As Lansvale Holden [2017], the Federal Court rejected a fitter’s claim that his previous employer had breached disability discrimination legislation when they fired him without considering reasonable adjustments to accommodate his workplace injury.

Employment Law – Facts

In essence:

  • In 2009 a fitter at AHG Services injured a finger on his left hand
  • After surgery, he gradually returned to his pre-injury duties
  • In 2012 he was dismissed after providing medical certificates which confirmed he couldn’t perform his duties adequately and was only fit for office work
  • The worker sought damages for lost income and non-economic loss. He argued that AGHS had breached the Disability Discrimination Act 1992 (Cth) by dismissing him without contemplating reasonable adjustments or reassigning him to another role

Employment Law – Decision

The Federal Court found:

  • Prior to January 2011, there was no reason for AHGS to consider making reasonable adjustments to accommodate the employee’s injury because he was performing his role and failed to provide any medical certificates to suggest he could not perform his role
  • In rejecting the worker’s arguments, the court cited the decision in Watts v Australian Postal Corporation, finding that AGHS only had to consider reasonable adjustments for the position which the worker had occupied before the injury
  • This was not possible in this case, as the medical certificates he provided suggested he was unfit to perform “fitter” duties and no adjustments could assist him

Employment Law – Tips for Employers

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

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Fair Work Commission – Re-Determination of Safety Dismissal

Fair Work Commission – Background

A Fair Work Commission decision has been ordered a re-examination by a Full Bench of the FWC for the dismissal of an employee for his ‘nonchalance’ towards Work, Health & Safety obligations, lack of remorse after a workplace incident and failure to wear safety glasses.

As Commissioner Tanya Cirkovic did not make a finding in regard to the workplace incident, there was no valid reason to conclude the employee had been negligent in complying with safety requirements or failing to report the incident. [...]  READ MORE →

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Employment Law – Dismissal of employee for pornographic emails

Employment Law – Background

In B v Mid North Coast Local Health District, 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.

Employment Law – Facts

In essence:

  • 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 the employer’s employment law 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 employer’s employment law communications policy

 

Employment Law – Decision

The NSW Industrial Commission found:

  • the employer had a valid reason to dismiss the woman
  • the workplace law policies made it clear that sending and receiving inappropriate emails was strictly prohibited. This was clear by requiring users to accept the employer’s employment law policy through ticking a pop-up box when they logged in
  • despite its validity, the employee’s dismissal was harsh under workplace laws
  • consideration was given to mitigating factors such as her difficulty “in obtaining alternative employment … her personal, family and dire financial circumstances”
  • the fact that she had not been previously warned for misconduct was also taken into account
  • reinstatement was impracticable considering “the gravity of the misconduct” and the fact that the employment relationship had irretrievably broken down
  • the woman was to be compensated eight weeks pay

Employment Law – Tips for Employers

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

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Employment Law – Unfair Dismissal – ‘Crude’ Facebook Post

Employment Law – Background

The Fair Work Commission’s decision in Colby Somogyi v LED Technologies Pty Ltd, where the FWC awarded an employee compensation after his dismissal for crude Facebook posts, provides a warning to employers of the care that needs to be taken in addressing issues arising from employee use of social media.

Facts
• A company dismissed a sales representative after posting crude comments on Facebook suggesting that a woman gave sexual favours to her boss for a promotion
• The company argued that as the employee posted the comments during work hours and directed the comments at the business, one of its employees or customers, it was “clearly inappropriate”
• The company believed that the employee’s opinions did not align with its objectives of promoting a safe workplace free of harassment, victimisation or sexual abuse
• They claimed that the employee had breached its social media policy, which prohibits inappropriate social media use at work
• However, the employee argued that the dismissal was unfair because he was not given an adequate chance to respond. He was not informed that the Facebook post was the catalyst for his dismissal, as the company did not respond to his queries as to why he was dismissed
• The employee claimed that his posts were not directed at the company, and were actually in reference to his mother being bullied at her workplace
• The employee claimed he posted the comments during his break and that he was unaware of the company’s social media policy [...]  READ MORE →

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Employment Law – Procedural Fairness and Employee Dismissals

Employment Law Background
The Fair Work Commission’s decision in DL v East Arnhem Regional Council [2017] highlights the importance of employers affording procedural fairness to employees in dismissal cases.

Facts
DL was a Municipal Services Supervisor for a Council. In this role, he was responsible for supervising two or three staff. At least two workers had lost their driving license

• In June 2016, one of the workers was driving a Council rubbish truck, when an incident caused the bumper of truck to be bent
• In August 2016, DL stated in an Accident & Incident Report that he was driving the truck. The form stated that by signing the form, the signatory was accepting that the information in the form was “true and correct”. DL signed this form
• A few weeks later, in September 2016, the Council alleged that DL stated in a tele-conference that “recently we had an incident where [we] knew that we had no licensed drivers but decided anyway to use the staff to operate the vehicle. The driver bent the bumper then I had to jump in and take the blame”
• In late August 2016, after DL had signed the form but before he admitted to not being the driver, DL had received a first and final warning in regard to alleged unsatisfactory performance, a lack of care in vehicle cleanliness, paperwork and maintenance
• DL was dismissed on the basis that he breached the Council’s code of conduct by falsifying a critical incident report, failing to comply with policies and procedures, not being truthful, not acting with integrity and not conducting himself in a proper manner [...]  READ MORE →

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Deed of Release prevented claim against Employer

Background

In a recent Federal Circuit Court decision, a college teacher who claimed she was suffering from a psychological disability attempted to render her Deed of Release – signed in 2007 – invalid. However, due to a lack of medical evidence her claim was unsuccessful.

The Facts [...]  READ MORE →

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Consultation – Essential for a ‘Genuine Redundancy’

Most employers are generally aware that a ‘genuine redundancy’ is a complete defence to an unfair dismissal claim. However, a redundancy is not rendered ‘genuine’ simply because the redundancy is justified or necessary. The Fair Work Act 2009 (‘the FW Act’) requires employers to undertake a consultation process prior to the implementation of redundancies.

The consultation process requires employers to give employees adequate notice of potential workplace changes (i.e. redundancies), and discuss what steps can be taken to mitigate the effects of the workplace changes. [...]  READ MORE →

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Swearing Did Not Warrant Summary Dismissal

The Fair Work Commission has awarded an Operations Manager $27,787 in compensation following a finding that swearing at another manager was not sufficient to justify his summary dismissal.

Facts

In essence:

  • On or around July 2016, the Operations Manager had a heated argument with the national WHS Manager of Precepts Services Pty Limited (‘the employer’). The WHS Manager happened to be the wife of the employer’s Managing Director.
  • Prior to the argument, the WHS Manager had a meeting with the Operations Manager’s son – who was employed by the employer as an apprentice electrician – in relation to concerns about his performance.
  • The Operations Manager questioned why he was not invited to attend his son’s performance review meeting, and allegedly said to the WHS manager: “Your sneaky husband made that decision, did he?”
  • The WHS manager asked what he had meant by “sneaky”. In response, the Operations Manager referred to a previous phone conversation between his (i.e. the Operations Manager’s) wife and the Managing Director in relation to a dispute over their son’s wages. The Operations Manager relayed that during the phone conversation, the managing director allegedly swore at the Operations Manager’s wife, saying to her “f-ck off, you do not have your facts right”, and then hung up on her.
  • The Operations Manager then allegedly leant over the table of the WHS manager and asked her twice: “How would you f-cking feel if I said get f-cked to you?”
  • In September 2016, the Managing Director directed the Operations Manager to attend a meeting to discuss allegations of misconduct made against him. The Operations Manager attended the meeting, during which he was summarily dismissed.
  • According to the Operations Manager, the Managing Director had a habit of swearing at employees including his own wife (the WHS manager), and regularly punched and kicked walls in the office.

Swearing not sufficient to justify summary dismissal [...]  READ MORE →

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Q&A – Dismissal of employees whilst on leave

A common question raised by employers is whether an employee can be dismissed whilst the employee is absent on personal/carer’s leave or annual leave. The question is common because employees often retreat onto leave when the employment relationship becomes dysfunctional, due to stress arising from disciplinary action, or to delay their dismissal.

There is no universal statutory prohibition on dismissing employees who are absent on personal leave or annual leave. However there are significant risks for doing so. [...]  READ MORE →

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Adverse Action Claim Dismissed

The Federal Circuit Court recently dismissed an employment law adverse action claim, in which an employee alleged her dismissal was related to her workplace injuries and a bullying complaint.

Background

  • The employee was working as a microbiologist in a medical laboratory. She sustained injury to her neck, due to the posture in which it was necessary for her to carry out her duties. She went on sick leave from September 2013 – February 2014, returning on light duties. Her workers compensation claim was accepted.
    •  [...]  READ MORE →

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    Misuse of Confidential Information – Evidence relied upon after the fact

    In the recent decision of Finemore v CMIB Insurance Services Pty Limited [2016] FWC 8517, an employer successfully relied upon evidence of misuse of its confidential information discovered following the termination of employment, in order to defend itself from an unfair dismissal claim.

    The Facts

    The Applicant had been employed by the Respondent (a small business employer) for approximately six years, most recently in the role of Account Executive. The Applicant was employed under a written employment contract containing several post-employment obligations including an obligation to preserve the Respondent’s confidential information [...]  READ MORE →