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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 →

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Employment Law – Drug and Alcohol Testing

Employment Law – Background

Drug and Alcohol Testing should be introduced with consultation in a company policy. The rationale is to prevent or rehab rather than discipline employees. However, employers need to consider the reasonableness of implementing a policy. In addition, employers also need to consider whether it breaches privacy law.

Employment Law – Issues to Consider

In essence:

  • Drug and alcohol testing should be introduced on work, health and safety grounds
  • this is because industrial tribunals have generally determined that testing is an intrusion of individual privacy. Therefore, it can only be justified on work, health and safety grounds
  • an employer has no control over what employees do in their own leisure time. Although conduct that may put an a person at risk or damage the company’s business and reputation can warrant control measures
  • because such a policy is to be considered a workplace health and safety matter, consultation with all staff is required
  • the policy is especially relevant in medium to high risk industries for instance manufacturing and construction
  • furthermore, some industries will require such a policy under the relevant workplace health and safety law
  • employers are obligated to attempt to eliminate the risk for employees impaired by drugs or alcohol. Conversely, employees may argue an intrusion into their personal lives
  • failure to educate employees about the terms of the drug and alcohol policy can result in disputes in the workplace
  • furthermore, the lack of a company drug and alcohol policy can also have negative implications for employers in unfair dismissal claims

Employment Law – Company Policy

A company policy on drug and alcohol testing should:

  • aim to educate employees about the expected standards
  • explain to employees their responsibilities
  • stipulate the consequences of a breach
  • refer to the types of substances which can cause impairment. Notably, alcohol, cannabis, methamphetamines including cocaine and ecstasy, and opiods such as heroin
  • also consider referring to legal and prescription drugs such as sleeping pills because they also cause impairment

Employment Law – Method of Testing

In essence:

  • the two most common methods of testing for illicit drugs are saliva and urine testing
  • oral testing is more focussed on acute impairment
  • urine testing is more likely to uncover drug use patterns
  • the Full Bench of the (then) Fair Work Australia concluded that oral testing should therefore be adopted for a drug and alcohol policy
  • urine testing is appropriate in certain circumstances

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • seek the assistance of an employment lawyer to prepare an appropriate drug and alcohol policy
  • communicate to employees the drug and alcohol policy to employees
  • consult with all employees the implementation of the drug and alcohol policy
  • provide ongoing training and education to employees
  • speak to an employment lawyer to determine the appropriate method of testing for the workplace
  • consult an employment lawyer to consider the relevant privacy legislation. Consideration should be in conjunction with the company’s privacy policy
  • prepare new employment law policies as required
  • eliminate the risk of employees coming to work impaired by drugs or alcohol
  • draft changes to current drug and alcohol policy with the assistance of an employment lawyer
  • finally, engage an employment lawyer to consider relevant workplace health and safety law for certain industries

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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Employment Law – Recommendations for Employment Entitlements

Employment Law – Background

This article provides a consideration of the pros and cons of including employment entitlements in the following forms:

  • HR policy
  • Enterprise agreement
  • terms in a separate employment contract

Employment Law – Enterprise Agreements

Employers should actively encourage diversity and inclusion by using ‘inclusive’ language in the Enterprise Agreement. It should include:

  • Paid parental leave for both primary and secondary carers (this language includes same-sex couples)
  • A flexibility term
  • A consulation term
  • A disputes, grievance handling provision
  • Rates of pay
  • Provisions that enhance productivity improvement and flexibility.

Employment Law – HR policy versus Enterprise Agreement

Pros of using a HR policy include:

  • the benefit of non-binding application compared to a binding provision for the life of the Enterprise Agreement
  • less legal exposure in policy statements as breaches of enterprise agreements can incur fines or legal action
  • HR policies can be amended from time to time
  • a policy statement adds details and implementation procedures to the core entitlements contained in the Enterprise Agreement

Employment Law – Contract Provisions

Pros of putting provisions in individual contracts include:

  • flexibility to accommodate personal circumstances compared to a collective enterprise agreement
  • opportunity to trial new arrangements such as flexible working arrangements

Cons include:

  • provisions are difficult to remove later on
  • offering different conditions to different employees may increase the likelihood of discrimination complaints

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • engage an employment lawyer to ensure consistency with all employment documents containing employment entitlements
  • aim to include every employee demographic group to avoid criticism
  • use specific advertisements for employment to target specific demographic groups
  • ensure management are aware of the implications of a policy
  • educate staff particularly managers who are responsible for eligibility and implementation
  • train managers on handling ‘sensitive’ conversations with ‘minority’ employees
  • provide supporting resources such as toolkits and access to external experts
  • consult an employment lawyer about whether to adopt a policy, enterprise agreement or the insertion of provisions in a separate contract
  • speak to an employment lawyers about the cost-benefit analysis of each approach
  • prepare new employment law policies as required
  • draft new/changes to employment contracts with the assistance of an employment lawyer
  • draft new/changes to employment law policies with the assistance of 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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Federal Government abolishes the 457 visa

On 18 April 2017, the Australian Federal Government announced the abolition of the subclass 457 visa program, to be replaced by two streams of ‘temporary skill shortage’ work visas for skilled foreign workers. Under the government’s plan, foreign skilled workers would be eligible for one of two visas – a ‘short-term’ two-year visa extendable for a further two years, and a ‘medium-term’ four year visa.

As part of the overhaul, the government plans to substantially reduce the number of eligible occupations and positions subject to work visas. Occupations slated for elimination include farmers, actors, musicians and artists, journalists and media presenters, commissioned fire and police officers, and a variety of administrative managerial positions. [...]  READ MORE →

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Fair Work Commission – Judgment on Email

Background
In the Fair Work Commission decision of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd, the Fair Work Commission upheld the dismissal of an accounts manager for making offensive comments about clients in an email she accidentally sent to them.

Facts
In essence:

  • a cosmetic company employer summarily dismissed their key accounts manager who had worked for them for 15 years and who had no prior misconduct warnings, for breaching the employer’s employment law policies (being their code of conduct and IT policies)
  • the accounts manager had written an abusive email about the employer’s clients which she had intended to send to a contractor, who was also her friend, however, the clients were accidentally copied into this email
  • the chief executive of a client contacted the employer’s sales director demanding that there be consequences for the employee’s actions and that he would no longer deal with any company represented by that accounts manager
  • although she apologised for sending the email and sharing the client’s details, she explained that she had accidently sent the email to the client because she was having “recent issues with concentration and focus”
  • she also claimed that she was suffering post-traumatic stress disorder, having performance difficulties, and had inadequate support from management in implementing organisational change

Decision

The Fair Work Commission stated:

  • the account manager’s actions constituted a valid reason for dismissal
  • the employee’s actions breached the employer’s employment law policies (ie, the code of conduct and IT user conduct policies)
  • that even if the comments were not emailed to clients, her comments were “entirely inappropriate”, particularly because it was her job as accounts manager, “to manage relations with key customers”
  • the fact that the email was sent to clients ”greatly multiplied the gravity of the misconduct”
  • the employer had taken appropriate action to the incident in allowing the account manager to respond by email when she was too unwell to attend a meeting and then taking her explanation into account (and this included paying the employee in lieu of notice because she did not mean to send the clients the email)
  • that although the employee had apologised for her actions and had been with the company for 15 years, these factors did not “outweigh the gravity of the misconduct so as to render the dismissal harsh

Workplace 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 where they have a similar workplace matter
  • draft proper employment law policies governing workplace conduct
  • as necessary include conduct provisions in an employment contract and ramifications for breach
  • train staff about those employment law policies
  • ensure compliance with employment contracts and employment law policies
  • fairly, properly, consistently and lawfully respond to breaches of employment contracts and employment law policies (ie, on a case-by-case and factual scenario basis)
  • understand what conduct provisions may be contained in an applicable modern awards or enterprise agreement that need to be taken into account and complied with

More Information

For further information regarding any matter to do with workplace law, 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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Restraint injunction granted against law firm partners

Background

Eight partners from a top-tier law firm in Sydney were (temporarily) prevented from moving to another rival law firm after ‘retiring’ from their old law firm by virtue of (some of) the restraints that they had entered into.

Decision

In a verdict granting an injunction in respect of the restraint provisions that was sought by the old law firm, the court:

  • upheld the “detailed and extensive protections offered” by the partnership agreement – in particular restraint clauses concerning:
  • transfer of work to the new law firm
  • solicitation of other lawyers from the old firm
  • rendering of services to the old firm’s current and related clients
  • acknowledged the strength of the eight partners reasoning in relation a number of subsequent restraint clauses which they argued were void for being unreasonable restraints of trade
  • found it difficult to see how a refusal to enforce the disputed restraint clauses could operate to the disadvantage of the old firm given the protections provided by the other restraint clauses
  • observed the likely adverse, and in some cases significant, consequences for the outgoing partners, should the disputed restraint clauses be upheld
  • stated that although the consequences “must have been apparent” to the “commercially and legally sophisticated” outgoing partners (particularly given their co-ordinated departure) the balance of convenience did not favour the enforcement of the disputed restraint clauses
  • refrained from deciding disputed questions of law in circumstances where the injunction application was brought on urgently for hearing (these will be determined in substantive proceedings at a later date)

Tips for Employers

Although the restraints in question related to a partnership arrangement, fundamentally many of the concepts have direct application to employment law, thus employers should: [...]  READ MORE →

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Anti-Bullying Order Dismissed But Corrective Action For All

A Civil Aviation Safety Authority inspector brought 30 bullying allegations against his team leader and a colleague, but only one was held to constitute unreasonable behaviour. The anti-bullying order was dismissed but Commissioner Nick Wilson noted the interpersonal dysfunction of the team that could potentially have the ‘severest consequences’.

The Fair Work Commissioner recommended a three-month ‘workplace culture and improvement plan’ and for the inspector to participate in a performance review with CASA and his team leader to work on a work plan together.
The inspector, his colleague, his team leader and CASA have been requested to write to the Fair Work Commission within a month to advise of a negotiated contract of employment. Cultural barriers were believed to have affected the functionality of the team and cultural training should be undertaken to better ensure fair work for all employees. [...]  READ MORE →