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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
  • Continue reading…

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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
  • Continue reading…

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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
  • Continue reading…

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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.
  • Continue reading…

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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
  • Continue reading…

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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
  • Continue reading…

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NEW! Fair Work Amendment (Protecting Vulnerable Workers) Act

After recent high-profile cases involving alleged underpayments to employees and other criticised employment practices, the Federal Government has introduced new legislation.

NEW! Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

This new piece of legislation introduced key changes to workplace laws, namely:

Key Reforms – 15 September 2017

In summary, the new laws that commenced on this date:

  • increase penalties for serious contraventions of workplace laws
  • make it unlawful to ask for cashback from employees or prospective employees
  • increase penalties for failing to meet record-keeping and pay-slip requirements
  • place the onus on employers to disprove wage claims where:
  • the record-keeping and pay-slip requirements are not met; and
  • the employer does not have a reasonable excuse for not meeting this requirement
  • give greater powers to the Fair Work Ombudsman to gather evidence in investigations
  • introduce new penalties for giving the Fair Work Ombudsman false or misleading information or hindering or obstructing their investigations

Key Reforms – 27 October 2017
Continue reading…

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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”
  • Continue reading…