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Mandating Covid-19 Vaccinations in the Workplace

With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.

The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine. [...]  READ MORE →

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Employment Law – WARNING! Inappropriate Christmas Party Behaviour

Employment Law – Christmas Party Behaviour

With the festive season upon us, a few timely reminders to avoid the celebratory hangover and deal with its effects should it arise. Although we wish all of our staff enjoy the end of year parties and behave themselves, alas this does not always occur.

Below we set out some of the key employment law matters an employer needs to bear in mind:

Do’s and Don’ts

  • do ensure you have suitable workplace policies in place including drug & alcohol policies, bullying, harassment and discrimination policies, WHS policies, grievance procedures and any other relevant codes of conduct
  • do remind and train staff including managers about your relevant workplace policies before the function and, for guidance purposes, give examples of behaviour that is and is not acceptable
  • do empower relevant managers to act if they observe any improper conduct during the course of the function
  • do check your insurance policies to ensure they cover the type of event being held
  • do provide sufficient food (and non-alcoholic drink options) if alcohol is being served
  • do make clear any post-event activities are solely on the employee’s time and not the employer’s and that the employer does not endorse any activities that occur after the official finishing time of the party
  • do assist with organising appropriate travel home for those at risk (eg, those having consumed too much alcohol and where safety concerns arise for those travelling late at night especially solo)
  • do properly and promptly investigate complaints of inappropriate behaviour if they arise
  • do implement fair and consistent disciplinary measures if a complaint is upheld
  • don’t engage in, encourage or condone irresponsible service of alcohol (if you have concerns, ensure that staff member is no longer served alcohol and assist with travel arrangements home)
  • don’t dismiss complaints on the basis of “well that’s just how he/she is” or sweep them under the carpet hoping they will go away

The Sting

Although the party may be held off-site and/or under the control of a third party host an employer can nevertheless still be exposed to claims relating to, and the consequences of, inappropriate behaviour such as: [...]  READ MORE →

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Employment Law – Bupa Criticised for Disciplinary Process

Employment Law – Background 

The Fair Work Commission has found that a vulnerable aged care worker was unfairly dismissed due to her employer, Bupa Aged Care, acted unconscionably. Bupa were criticized for their “unprofessional, discourteous and unfair” disciplinary process.

Employment Law – Facts 

In essence:

  • Shahin Tavassoli, a refugee from Iran with limited English skills, was employed by Bupa
  • On the weekend of 13-14 November 2016, a colleague secretly recorded her on his mobile singing “I can do anything better than you” following a heated exchange between a resident and a nurse and also allegedly laughing and joking at the death of two residents
  • A second video, recorded the following day, allegedly captured her sitting in the TV room ignoring resident’s buzzers
  • These videos were shown to David Brice, acting general manager of Bupa Mosman a Miriam Lyman, care manger
  • On 16 November, Tavassoli attended work training. However, at 2pm Brice escorted her from the premises, only telling her that there had been serious allegations made against her and he was waiting for more documentation in a few hours.
  • In the two hours Tavassoli allegedly sat outside the facility, she jumped to the conclusion that the allegation may involve beer that a resident offered her. Determined not be terminated for stealing, she asked a college for help drafting a resignation letter. Brice didn’t accept this resignation letter
  • In a meeting with Tavassoli at 4pm, Brice read letters from Bupa containing allegations of misconduct and informed Tavassoli was being suspended on pay for an investigation
  • She never received a copy of this correspondence or the video footage
  • Brice also informed that unless she altered the date of her resignation, she was required to partake in the investigation. She then scribbled out the initial 4 weeks’ notice and gave the resignation back
  • The next day, Brice sent her a letter accepting her resignation. However, the following day Tavassoli attended the facility to rescind her resignation which was refused

Employment Law – Fair Work Commission Decision

Resignation or constructive dismissal?

The Fair Work Commission:

  • found Ms Tavassoli was constructively dismissed, on the basis that Mr Brice should have taken additional steps to ensure she understood the investigation and the effect of her resignation
  • believed Ms Tavassoli should have been “provided with copies of the letters and sent home to discuss them with her family”
  • stated it was not “satisfactory to say Ms Tavassoli resigned at her own free will when Bupa knew of Ms Tavassoli’s poor language skills and her emotional state”
  • found that Mr Brice suggesting an amendment to the resignation letter suggests that the termination “becomes one at the invitation of the employer”
  • also believed that it was unconscionable for Mr Brice to escort Ms Tavassoli from the premises and advise her not to return for 2 hours, without providing a reason for such process.

Was the dismissal unfair?

The Fair Work Commission:

  • found Bupa did not have a valid reason for dismissal on the basis that she hadn’t been acting in a disrespectful manner when she sung, nor had she laughed at the deaths of residents. It was found that she had also been on a break during the footage and had not been required to attend to residents buzzers
  • were critical of Bupa’s disciplinary process, labelling them “unprofessional, discourteous and unfair” in finding that Ms Tavassoli was not given anything in writing, not shown the video footage and was not given a proper opportunity to respond.
  • held that the dismissal was unfair, harsh and unjust
  • ordered that Ms Tavassoli be reinstated and paid her base pay for November 2016 to July 2017

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

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Employment Law – Court Dismisses Employee’s Misleading Conduct Claim

Employment Law – Background

The Federal Court has rejected a high earning employee’s claim that her employer engaged in misleading and deceptive conduct when the media company told her that her new role would be “long-term”.

Employment Law – Facts

In essence:

  • Nunn Media dismissed their head of strategy during her probationary period, alleging she was often late and the quality of her work did not meet their standards
  • However, the employee claimed that Nunn Media had engaged in misleading and deceptive conduct because when recruiting her they said if she was hired, it would be a “long-term” commitment
  • She claimed that she was dismissed because she made a complaint about a director’s work performance and took personal leave for illness
  • To support her claim she relied on an email from the managing director to another employee which said “WTF (what the f***) in response to the employee informing Nunn Media that she required time off to see a doctor.

Employment Law – Decision

The Federal Circuit Court:

  • found that the managing director’s “WTF” remark was not “evidence that the illness or injury of the [employee] or that she was taking leave was a reason for the termination of her employment”, it was merely an expression of exasperation.
  • found that by the time the managing director had made that remark, he had already taken steps to replace the employee.
  • stated that the employee had demonstrated unsatisfactory performance in three company projects and the “only reason” the managing director dismissed her was because he believed she was unable to perform in her role.
  • held that Nunn Media had not engaged in misleading and deceptive conduct
  • believed that the employee had left her previous job because she was about to become redundant and there was “significant financial incentive”, being a $55,000 a year salary increase, to take the role at Nunn Media.

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

Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336 (26 September 2017)

Employment Law – Tips for Employers

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

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Employment Law – Couple Working From Home Employees

Employment Law – Background

Putland v Royans Wagga Pty Limited is a clear example of sham contracting. In this case, the Federal Court of Australia decided that a husband and wife who performed largely home-based clerical work for one company were employees, not independent contractors.

Employment Law – Facts

In essence:

  • The couple were employed by a truck repair company, Royans Wagga Pty Ltd
  • The couple’s relationship with Royans began in 2005, when the wife worked in the business’ offices monitoring accidents
  • In 2008, the husband helped provide the 24 hour, 7 days a week ‘accident reporting service’ which was based either at their home or in a demountable shed on the business’ premises at various times
  • However in 2015, Royans outsourced the service to an independent call centre
  • Since 2007, any contract between the parties was described as “partly oral and partly in writing”. However, Royans argued that the couple had been independent contractors at all times

Employment Law – Decision:

The Federal Court of Australia:

  • determined that the couple were not independent contractors, and had an employment relationship with Royans
  • found that the couple were employed under the Clerks Award as ‘call centre principal customer contact specialists’ on a permanent, full-time basis and that Royans breached ss 45, s357 and 536 of the Fair Work Act
  • noted there were 10 “indices” supporting the view that the couple were employees. These included the exclusive nature of their service, Royans’ payment of phone lines and bills at their home, deferential emails to the company’s managing director, provision of scanners and telephone systems and the lack of true autonomy
  • suggested that the most significant indicator was the authority to control, as the managing director has extensive and far-reaching actual control over the work done and work was only done for Royans Wagga.
  • rejected indicators in favour of an independent contractor relationship, including the possession of ABNS, the issuing of tax invoices, the couple working from home and not wearing uniforms, on the basis that these features were “largely reflective of the [couple’s] subjective understanding of the position they were in according to the wishes of Royans”, rather than “supporting an objective assessment of the true nature of the relationship”
  • held that Royans must compensate the couple for underpayments, unpaid overtime, superannuation and leave. However amounts payable and penalties for sham contracting have not yet been determined.

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

Putland v Royans Wagga Pty Limited [2017] FCA 910 (9 August 2017)

Employment Law – Tips for Employers

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

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Employment Law – Chauffeur Who Had Minimal Control a Worker

Employment Law – Background

The South Australian Employment Tribunal has found that a chauffeur, who provided “little more than his labour” and exercised minimal control to limousine company Blue Ribbon Passenger Services, was a worker not an independent contractor.

Employment Law – Decision

The South Australian Employment Tribunal:

  • determined that the arrangements between Blue Ribbon and its chauffeur was a contract of service, and as such the chauffeur was a worker for the purposes of workers’ compensation law
  • believed in this circumstance the chauffer was “providing little more than his labour” within “Blue Ribbon’s systems and practices of work”
  • concluded that the chauffeur operated within the “obedient milieu” put down by Blue Ribbon, as they told him which vehicle to drive and where to pick up/drop off customers, booked and allocated jobs through its systems or Uber and required him to complete worksheets daily to record his jobs. He also had no flat weekly fee or minimum hours and no set hours of work
  • held that other factors pointed to a contract of service, including: payment of 50% of his income to Blue Ribbon to lease the vehicle, the requirement that the chauffeur sign up to Uber and that payments from customers were transferred from Uber to Blue Ribbon and the requirement to wear a uniform and name badge
  • believed only a few factors suggested he was contractor including: his tax arrangements, payment for vehicle’s cleaning and 50% of petrol costs, holding an ABN and the employer’s failure to pay him leave or superannuation

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

Pirot Pty Ltd v Return to Work SA (Schultz) [2017] SAET 92 (11 August 2017)

Employment Law – Tips for Employers

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

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Employment Law – Client Information Posted on Facebook Confidential

Employment Law – Background

The Supreme Court has rejected a mortgage broker’s argument that the client list he took from his old employer and provided to a competitor was no longer confidential because his old employer posted some of their clients names on Facebook.

Employment Law – Facts

In essence:

  • the mortgage broker worked for Home Loan Experts as an independent contractor, however terminated his agreement with them in November 2016
  • he was still bound by restraint clauses which prevented him from distributing Home Loan Experts confidential information for 10 years and a non-solicit provision which forbade him from engaging in similar business activities for 18 months
  • soon after he started working for competitor, RAMS Financial Group Pty Ltd
  • whilst he was allowed to provide services to family and friends, he was not allowed to lure former clients to RAMS or contact them within the 18-month restriction period
  • the broker downloaded a list containing over 100 of Home Loan Expert’s clients’ names and addresses from their system to his computer and provided it to a RAMS receptionist so she could send Christmas cards
  • however he claimed that client list was not confidential as his old employer had publically posted some of their clients’ names of their Facebook Page

Employment Law – Decision

The NSW Supreme Court:

  • rejected the broker’s argument that the list was not confidential because it was posted on Facebook, as nothing but the clients’ names appeared on the posts and the privacy settings of the client  prevented people from accessing information beyond their Facebook name or making contact
  • was satisfied that the client list “have not entered the public domain so as to be stripped of the necessary quality of confidence”
  • found that the broker had breached his non-compete and confidentiality obligations when he approached and accepted approaches from up to nine Home Loan Expert clients’ whilst working for RAMS
  • determined that the sharing of the client list also breached his agreement with Home Loan Experts as it constituted confidential information because it contained “more intimate” details about clients’ assets and liabilities, and thus remained the intellectual property of Home Loan Experts
  • also found that the broker had breached his equitable duty of confidence by using and retaining its client list and accepting clients’ approaches
  • ordered an injunction restraining the broker from continuing to breach his obligations
  • ordered parties to agree on damages and account for the loss of opportunity that resulted from 8 clients switching to RAMS

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

Dargan Financial Pty Ltd ATF the Dargan Financial Discretionary Trust (trading under “Home Loan Experts”) v Nassif Isaac [2017] NSWSC 1077 (16 August 2017) [...]  READ MORE →

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Fair Work Commission – Settlement Prevents Dismissal Claim

The Fair Work Commission has thrown out an unfair dismissal application because the employee had previously agreed to a settlement with his employer.

Facts

In essence:

  • In November 2016, Mr Singh was dismissed from his team leader role at Sydney Trains after an investigation into two safety incidents in August 2015
  • Singh was dismissed for failure to follow safety policies, procedures and guidelines whilst working in a safety critical location, causing significant risk of harm to himself, his team and the public
  • He applied for unfair dismissal under s 394 of the Fair Work Act
  • On 13 February, Singh’s solicitor wrote to Sydney Trains solicitor proposing terms of settlement, including that Singh be re-employed in an administrative role
  • Sydney Trains replied adding various qualifications regarding medical assessments and the requirement that a deed of release be signed
  • The deed of release was given to Singh and he agreed to settle the application in principle based on the terms in the draft deed.
  • Minor alternations were made and the Fair Work Commission was notified that they could vacate the hearing dates
  • However, by March Singh’s solicitor had failed to act and there was confusion over whether a binding settlement was made

The Arguments

  • Sydney Trains claimed that a binding settlement had been reached, so the unfair dismissal claim should be dismissed. The essential terms of settlement were agreed, regardless of the amendments and qualifications.
  • Singh claimed that there was no binding settlement because the qualifications made by Sydney Trains were a counter-offer replacing his original offer. He didn’t accept the counter-offer, so therefore there was no binding agreement.

Fair Work Commission Decision

The Fair Work Commission:

  • determined that Sydney Trains demonstrated the intention to be bound by the essential terms of the offer. Their rewritten offer was merely in a more detailed form, which had no difference in effect
  • decided this on the basis that “the parties would have hardly agreed to vacate the four days of hearing and the associated and not insubstantial costs involved, if there was not a plain and obvious intention that the matter had been settled in principle” and there was no communication by Singh’s solicitor that the offer was rejected
  • therefore held that the settlement was legally binding
  • determined that as the settlement was in effect, Singh’s unfair dismissal application had no reasonable chance of success and was dismissed under s587(1)(c) of the Fair Work Act

The decision is available for you to read through the hyperlink:
Subeg Singh v Sydney Trains (U2016/12864)

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
  • raise any questions with an employment lawyer

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 – Contempt ruling for director who deleted documents

Employment Law – Background

A former director at an aged care service provider has been found guilty of contempt of court after he deleted information relevant to a confidential information claim being brought against him the night before he was due for court.

Employment Law – Facts                          

In essence:

  • The director of technology and innovation at Mirus Australia resigned on July 13 2015, before the company terminated him on August 7 2015
  • He did not deny that he removed information from the client management system and uploaded it into a laptop after he left
  • Mirus became aware that he and another former employee were going to start up their own aged care business
  • On August 24, 26 and 28 Mirus’ lawyers sent the director letters stating he was in breach of the restraint clause in his employment contract and required that the confidential information, intellectual property and devices be returned for examination
  • On September 7 2015, Mirus initiated legal proceedings against the director
  • It was alleged the director deleted relevant documents on September 7 2015 – the night before he was due to attend court

Employment Law – Decision                                          

The NSW Supreme Court:

  • held that the director had interfered with the administration of justice when he destroyed evidence by deleting documents on his laptop
  • stated “there is no room for doubt, on the expert evidence, that between 6.33pm and 7.19pm on 7 September 2015 the SDELETE function was run on the Surface Pro [laptop]”
  • believed the director intentionally deleted the documents relevant to the litigation to prevent them for being located
  • found the director in contempt of court and required he pay the company’s indemnity costs

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

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 (11 August 2017)

 Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this employment law decision
  • seek the assistance of an employment lawyer to understand the impacts of this employment law decision
  • ensure that employment contracts contain well drafted restraint provisions which are appropriate to an employee’s employment
  • damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)
  • raise any employment law questions with an employment lawyer

Employment Law – More Information [...]  READ MORE →

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Employment Law – Bullying Allegations Reasonable Management Action

Employment Law – Background

The Fair Work Commission has thrown out an anti-bullying claim brought by an aged care employee as her employer’s conduct was considered to be reasonable management action in response to her inappropriate conduct.

Employment Law – Facts

In essence:

  • the employee alleged she had been frequently bullied by her manager and supervisor since 2014
  • amongst various bullying allegations, she alleged that her manager screamed on many occasions, chased and ambushed her, spoken about her in highly derogatory terms and refused to grant leave when her daughter was having a medical procedure
  • the employee also claimed her supervisor also bullied through his handling of investigations and allegations made by and about her making her feel “scared”
  • both the supervisor and manager denied the allegations and claimed that the employee had frequently been aggressive to the manager including yelling personal insults and pointing her finger in the manager’s face, following her into her office and blocking the exit
  • the employee also challenged the procedural fairness of her employer’s quick decision in providing a “show cause” letter quickly after she had addressed issues raised in a counselling meeting
  • however, the employer argued that on each incident they had carried out reasonable management action by issuing formal warnings and counselling meetings before issuing the letter

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • dismissed the workers application
  • acknowledged that it “may have been preferable for the employer not to finalise its conclusions in its letter to [her] on 20 January before concluding its views concerning her grievances”
  • nevertheless, concluded that the on the evidence presented the conduct of both the manager and supervisor was “at all times reasonable management action carried out in a reasonable manner”
  • noted that the evidenced pointed to the employee’s own conduct being inappropriate on the occasions she alleged the bullying occurred

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

Application by E.K [2017] FWC 3907 (21 August 2017)

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

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Fair Work Commission: Support Person in Disciplinary Meetings

Employment Law – Background

The Fair Work Commission has ruled that a HR manager should not have allowed a company a manager to be put forward as a ‘support person’ for an employee who was under threat of dismissal.

Employment Law – Facts

In essence:

  • the employee, a retail supervisor at RACV’s Cape Schanck Resort, sought to have the company’s manager present as her ‘support person’ at a disciplinary meeting
  • however, the company opposed this as the selected ‘support person’ worked directly with the employee

Employment Law – Fair Work Commission Decision:

The Fair Work Commission:

  • determined that the resort manager “should not have allowed his name to be put forward as a potential support person” and HR also shouldn’t have allowed it to occur
  • held that the resort manager could “by no means be regarded as someone who would give [the retail supervisor] ‘support’ in any of the capacities implied by that word; whether as an advisor, counsellor or representative”
  • suggested the selection was inappropriate as the resort manager was in “attendance at the [disciplinary] meeting on Friday, 24 March 2017 as the management representative” and “he was the one who signed the letter of dismissal” to the retail supervisor
  • nevertheless held that the company had not unreasonably refused to allow the retail supervisor to have a support person present at the meeting
  • upheld the employee’s dismissal

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

Leanne Trembath v RACV Cape Schanck Resort [2017] FWC 4727 (13 September 2017)

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
  • seek advice from an employment lawyer on who may be an appropriate support person if in doubt
  • train HR managers/staff about this Fair Work Commission decision
  • raise any employment law questions with an employment lawyer

Employment Law – 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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Dismissal for Leaving Accident Reasonable

Employment Law – Background

The Fair Work Commission has ruled that a mining worker who was involved in an accident and failed to follow his employer’s incident management procedures by reporting the accident immediately was not unfairly dismissed.

Employment Law – Facts

In essence:

  • Mr Edgar was employed by Swick Mining Services as an underground diamond driller.
  • In April 2017, the light vehicle he was driving underground at the mine site collided with a wall, causing major damage to the vehicle. However, he changed a damage vehicle’s tyre and drove it up to the surface before reporting the incident.
  • After investigation, he was dismissed for breaching Swick’s incident management procedure
  • In dismissing him, Swick took into account Edgar’s three prior warnings and the fact the client would not accept him back on site.
  • Edgar argued that whilst he had hadn’t followed procedure, employees had not been dismissed for other safety incidents. He also claimed that he was exhausted at the time of the accident, and his request for the night off prior to the accident was refused.
  • Edgar further argued that Swick’s prior warnings were designed to make him resign following his workplace compensation injury and that during a meeting discussing outcome of the investigation he he was given a pre-prepared letter of termination.

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • found that Mr Edgar’s breach of process was a valid reason for dismissal
  • noted Swick’s evidence that Edgar’s leave request was denied as he told his supervisor he was fit for work and that Mr Edgar’s statement on the day of the accident didn’t mention falling asleep or being tired
  • there was no evidence that the warnings were designed to make Edgar to resign
  • highlighted whilst the pre-prepared termination letter was a “reason for concern”, the outcome would have been unaffected
  • concluded that the termination was not harsh, unjust or unreasonable

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

Nicholas Edgar v SMS Operations Pty Ltd T/A Swick Mining Services [2017] FWC 3826 [...]  READ MORE →