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Dismissed Woolworths Worker Denied Legal Representation

Employment Law – Background

In a Fair Work Commission ruling, a warehouse team leader and Woolworths (MLDC) have both had their requests for legal representation denied, on the basis the unfair dismissal claim was “not complex enough”.

Employment Law – Facts

In essence:

  • The team leader was summarily dismissed in May 2017 for apparently engaging in serious safety breaches, such as going underneath a forklifts tyres and failing to take immediate corrective action or follow standard risk assessment procedures for workplace hazards.
  • In applying for unfair dismissal, the employee sought to be represented by a paid agent on the basis he would struggle to argue his own case or cross-examine witnesses.
  • The employee also argued that it was unfair to deny both parties legal representation because MDLC had in-house HR/IR staff with “superior legal and communication skills”. However MDLC disputed this, highlighting that their in house HR were not legally trained or skilled in advocacy
  • MDLC argued that they required legal representation as it “could not properly articulate all the issues”, and that if the team leaders request was granted, it would create an uneven playing field.

Employment Law – Fair Work Commission Decision:

The Fair Work Commission:

  • denied both parties requests for legal representation as it may create “unnecessary formality”
  • accepted that whilst that whilst there were conflicting facts, the case was one which did not “contain a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter”
  • emphasised that refusal of both applications was necessary because it “will not lead to a situation of unfairness for either party.” It was stressed that a there would be a “significant imbalance” between the parties if one party was granted legal representation over the other
  • maintained that both parties were well equipped to represent themselves, in that whilst MDLC are not “legally trained and experienced with advocacy, they are experienced in dealing with employee relations matters”. Similarly, the former employee is an “experienced team leader who was responsible for the management of a significantly large number of employees”

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

Christian Guillemain v Woolworths Limited T/A Melbourne Liquor Distribution Centre [2017] FWC 4236 (15 August 2017) [...]  READ MORE →

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Penalty Increase for Breaches of Fair Work Act

The Commonwealth government recently passed the Crimes Amendment (Penalty Unit) Bill 2017. This means from 1 July 2017, employers who breach their obligations under the Fair Work Act 2009 will face increased maximum penalties.

The maximum civil penalties increases are as follows:

Maximum penalty for a Corporate Entity:

  • Before 1 July 2017 – $54,000 per breach
  • After 1 July 2017 – $63,000  per breach

Maximum penalty for an Individual:

  • Before 1 July 2017 – $10,800 per breach
  • After 1 July 2017 – $12,600  per breach

The above penalties apply to single breaches of civil penalty provisions under the Fair Work Act. Consequently, multiple breaches may result in multiple penalties being imposed. [...]  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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Redundancy Consultation Cannot be ‘Hollow’

In Belinda Lee v Mission Australia, the Fair Work Commission warned against “hollow” consultation in redundancy, emphasising that it cannot be conducted for mere show and must have value.

Facts

In essence:

  • A program manager at Mission Australia alleged that she was made redundant without consultation whilst she was on parental leave
  • Mission Australia wrote to the manager stating she was going to be made redundant as they were no longer delivering their Skills for Education and Employment course and Adult Migrant English Program after Federal Government funding cuts. They stated they failed in their search for redeployment opportunities for her
  • The manager’s request to delay her retrenchment and redeployment period until after she returned from parental leave to see if any further opportunities arose, was rejected by Mission Australia

The Decision

The Fair Work Commission:

  • granted an interim order which prevented Mission Australia from retrenching the manager
  • emphasised that consultation must have a purpose, stating that “if the consultation does not provide [the program manager] the opportunity to influence the decision, it is of no value and the requirement to consult and the consultation is hollow”
  • in determining whether redundancy was undertaken without consultation, Mission Australia needed to address three main issues, including whether it had engaged in meaningful consultation, had done all it could do to mitigate any adverse effects of the redundancy and had made all reasonable redeployment efforts.
  • highlighted the importance of making interim orders as the dismissal could only be undone with significant litigation
  • The parties reached a confidential settlement after conciliation

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

Belinda Lee v Mission Australia [2017] FWC 3557 (4 July 2017)

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • ensure that when making an employee redundant employers have:
    • engaged in meaningful consultation
    • mitigated against any adverse effects of the redundancy
    • made all reasonable deployment efforts
    • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
    • draft new/changes to employment law policies with the assistance of an employment lawyer
    • raise any employment law 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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Personal Leave – Are Certificates from Pharmacists Acceptable?

A common area of confusion among employers is medical certificates. Many employers have the misconception that proof of an employee’s illness must always come in the form of medical certificate by a registered medical practitioner. However, this is not always the case and sometimes employers may accept certificates issued by a pharmacist.

The Law

Under s 107(3) of the Fair Work Act 2009 an employee must, when requested by an employer, provide the employer evidence that would satisfy a reasonable person that leave has been taken for the appropriate reason. According to the Explanatory Memorandum of the Fair Work Bill 2009, the main types of evidence are medical certificate or statutory declaration. [...]  READ MORE →

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WARNING! Workplace Investigation – Getting it Wrong

The recent Fair Work Commission decision in Tavassoli v Bupa Aged Care Australia Pty Ltd illustrates the importance of conducting workplace investigations in a procedurally fair way including to give full particulars and evidence of the allegations.

The Case

In essence:

  • an employee was a refugee from Iran who worked as a nursing home employee at the employer’s Mosman aged care facility
  • during that employment a colleague made covert video recordings of the employee which showed her disregarding resident calls, teasing residents, and laughing in response to reports about residents’ deaths
  • the recordings were provided to the facility’s General Manager and the employee was suspended from duties the following day
  • the employee was informed that her conduct was the subject of an investigation, but was otherwise not given advanced notice of the specific allegations made against her
  • at an interview the General Manager put the allegations to the employee, but did not show the employee the video recordings
  • at the end of the interview the employee (who had limited command of English), submitted her immediate resignation which was accepted
  • two days later the employee contacted the employer and requested to have her resignation withdrawn, however this request was refused

The Decision

The Fair Work Commission held:

  • the employer’s decision not to show the employee the video recordings of her conduct was “poor and wrong”, stating that Bupa “had an obligation to show the employee the video footage, particularly when it formed the sole foundation of the allegations”
  • the covert recordings of the employee’s conduct constituted a “blatant breach of privacy” and a potential breach of the Workplace Surveillance Act
  • the employer conducted the workplace investigation and interview in a procedurally unfair way
  • the employee was not given advanced notice of the allegations against her
  • the employer failed to have sufficient regard to the employee’s limited command of English including when considering whether or not to accept the employee’s resignation
  • the employer’s refusal to agree to the employee’s request to withdraw her resignation was unfair and evidenced an intention that the employer was going to dismiss the employee anyway prior to completing an investigation

The Sting

The employer’s failure to provide the employee with the video evidence of her alleged misconduct, together with the employer’s knowledge of the employee’s limited command of English, rendered the refusal to accept the withdrawal of the employee’s resignation a constructive dismissal, and procedurally unfair. [...]  READ MORE →

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Employment Law – Ex-Employee Restraint Clause Unenforceable    

Employment Law – Background

The Victorian Court of Appeal reaffirmed a decision that an employer was unable to enforce a restraint clause against an employee. The accounting firm’s breach of an employment contract consequently ended its right to enforce a restraint clause against the accountant. The case highlights the importance of carefully assessing any differing views between the employee and employer in employment law.

Employment Law – Facts

In essence:

  • the employee-accountant signed an employment contract in 2012
  • the contract contained a restraint clause that operated for 12 months. Notably, the terms were found to be reasonable by judges in earlier cases
  • the accounting firm expanded its business over 2015-16
  • the accounting firm denied the accountant certain bonuses he believed he was entitled to
  • as a result, the accountant requested payment to which the employer refused
  • the accountant took a week’s leave. A few days after he returned, he informed the employer he considered the refusal to pay the bonuses as a repudiation of the employment contract
  • especially relevant, the account set up his own business. Consequently, the employer sought to enforce the restraint clause

Employment Law – Decision

The Victorian Court of Appeal:

  • concluded that the accountant-employee’s interpretation of the bonus clauses was correct
  • held that the organisational changes could not justify the refusal to pay hence he should have been paid the bonuses
  • found that in conclusion, the refusal to pay was a breach of the employment contract. Consequently, the right to enforce the restraint clause ended

Employment Law – Tips for Employers

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

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Employment Law – Modern Awards Reductions

Employment Law – Background

In June this year, the Fair Work Commission (FWC) announced the reductions of public holiday penalty rates for the hospitality, retail, fast food and pharmacy sectors. The reductions were decided as part of the FWC’s four-yearly review of modern awards.

As of 1 July 2017, public holiday penalty rates were reduced while Sunday rates will reduce over three to four years. Although the unions argued for the delay in reductions, the FWC agreed with employer organisations. As a result, the first transition step is smaller than later transitions. Furthermore, the retail and pharmacy sectors will have longer transition periods due to their reductions being more significant. [...]  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 – Redundancy Consultation

Employment Law – Background

Currently, there are no specific guidelines on how long employers should or must conduct redundancy consultations under a Modern Award.

Different rules of course may apply to enterprise agreements, under company policies or in some cases under the terms of an employee’s employment agreement.

We understand that employers may want to rush a business restructure in order to continue running the business, however, there are a few tips employers should consider to minimise any possible adverse effects. [...]  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 →