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Employer and Director Heavily Fined

The Federal Circuit Court has relied upon the recently-introduced “protecting vulnerable workers” legislation to impose a heavy penalty on a company and its director who underpaid an apprentice employee and failed to keep time and wages records.

The new “protecting vulnerable workers” legislation:

  • increased penalties by up to 10 times for serious contraventions
  • strengthened the Fair Work Ombudsman’s evidence gathering powers
  • reversed the evidentiary onus in underpayment claims where employers fail to make and keep time and wages records
  •  [...]  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 – 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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    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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    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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    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 →