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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 →

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Employment Law – Incapacity Not a Refusal to Work

Employment Law – Background

The Fair Work Commission has criticised a company for misconstruing an employee’s extended absence on certified sick leave as a refusal to work.

Most noteworthy, the HR team dismissed the mentally unwell supervisor via email.

The decision highlights the importance of due process in the dismissal of employees while having regard to human dignity.

Employment Law – Facts

In essence:

  • the customer service supervisor was employed at Komatsu
  • the supervisor said he was “directed” to take sick leave in March 2015 due to “health and well-being”
  • he failed to meet his sales budget KPI’s. As a result, he was placed on a performance improvement plan in August 2015
  • the supervisor began experiencing mental health issues in March 2016. Consequently, he was taken off the performance improvement plan
  • furthermore, he experienced difficulties with his new manager which also contributed to his mental health problems
  • Komatsu encouraged the supervisor to participate in a return to work plan
  • additionally, Komatsu reconfigured its management structures to prevent the supervisor interacting with his previous manager
  • the supervisor was dismissed via email in November 2016

Employment Law – Decision

The Fair Work Commission:

  • held that the medical evidence confirmed the employee’s incapacity to work rather than his refusal to perform work
  • held there was no valid reason for the dismissal
  • underlined the need to establish the illness was not genuine in order to treat absence as a refusal to work
  • noted the mandatory opportunity for an employee to be provided with a ‘show cause’ meeting before any dismissal is made
  • stressed that dismissal via electronic means should be “strenuously avoided”
  • suggested Komatsu review its employee management practices
  • therefore ordered Komatsu to pay the supervisor $1,250 in compensation

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

John Finnegan v Komatsu Forklift Australia Pty Ltd [2017] FWC 2433 (10 May 2017) [...]  READ MORE →

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Employment Law – FWC Slams Poor Agreement Drafting

Employment Law – Background

A poorly drafted enterprise agreement has been criticised by the Fair Work Commission (FWC). The case was brought by the Electrical Trades Union (ETU) and the Communications Union (CEPU) against electrical contractor Kentz Pty Ltd (Kentz) in dispute of a clause requiring the purchase of particular income protection products.

The case was initially heard in February this year when Commissioner Michelle Bissett found “no ambiguity” in the wording of the contractual requirement to purchase income protection insurance. However, an appeal was permitted by the Commission because the decision was “attended with sufficient doubt” to permit a rehearing. The full bench of the FWC reaffirmed the earlier decision. Furthermore, it highlights the importance of clear drafting of enterprise agreements in employment law. [...]  READ MORE →

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Employment Law – Landmark Sham Contracting Case

Employment Law – Background

In March 2015, the Fair Work Ombudsman (FWO) brought a case against Quest South Perth Holdings Pty Ltd (Quest) for breaches of the Fair Work Act 2009 (Cth) (the Act). In a long-running legal saga, the Federal Court found that Quest and Contracting Solutions Pty Ltd had not contravened the Act by moving employees onto independent contractor arrangements. By the end of 2015, the High Court of Australia overturned the Federal Court ruling and therefore found Quest had engaged employees in a ‘triangular’ sham contracting arrangement. [...]  READ MORE →

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Employment Law: Compensation for Unfairly Sacked Truckie

Employment Law – Background

In SR v Geelong & Surfcoast Laundry T/A Swim Alumni Pty Ltd, the Fair Work Commission ruled that a truckie involved in three accidents and an alleged road rage incident was unfairly dismissed.

Employment Law – Facts

In essence:

  • the employee was employed by Surfcoast Laundry as a casual truck driver from March 2015 until November 2016
  • the employee was dismissed for having three accidents in a year and for allegedly being involved in a road rage incident
  • however, the employee received no written warnings, was not told the reason for his dismissal at the time it occurred and was not given an opportunity to respond
  • Surfcoast Laundry claimed the dismissal was in accordance with the summary dismissal section of the Small Business Fair Dismissal Code which indicated that it was fair to dismiss an employee without notice or warning if an employer believes on reasonable grounds that an employee’s conduct was sufficiently serious to justify immediate dismissal.

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • found that whilst intervention may have been warranted, the dismissal was disproportionate to the severity of the conduct
  • whilst the employer’s evidence that the accidents and alleged road rage incident contributed to the decision to dismiss, it was held that the operative reason for dismissal was the employer’s annoyance at the employee complaining about underpayments
  • held that the termination was harsh, unjust and unreasonable due to the lack of procedural fairness and the lack of a valid reason for dismissal
  • the employee was awarded $14,995 in compensation

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
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • fairly, consistently and lawfully respond to breaches of employment laws including Awards and enterprise agreements
  • follow good HR practice when it comes to performance management
  • not unreasonably apply the Small Business Fair Dismissal Code
  • raise any employment law questions with an employment lawyer

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

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Fair Work Commission: High Earner Can Pursue an Unfair Dismissal Claim

Employment Law – Background

In Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd, the Fair Work Commission ruled that a regional director of a multibillion dollar real estate business could purse his unfair dismissal claim despite earning over the high income threshold as his duties indicated he was actually a sales representative under an Award.

Employment Law – Facts

In essence:

  • the former capital markets regional director claimed that he was unfairly dismissed when he was made redundant by Jones Lang LaSalle (Vic) Pty Ltd (JLL)
  • JLL made a jurisdictional objection to the application claiming that the employee was not a person protected from unfair dismissal within the meaning of s382 of the Fair Work Act
  • JLL argued the employee was a senior manager with significant leadership, mentoring and business generation responsibilities which went beyond the classifications in the Real Estate Industry Award 2010 (Award)
  • JLL also claimed the employee wasn’t protected from unfair dismissal due to his earnings surpassing the high income threshold

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • held that the employee could pursue his unfair dismissal claim despite earning well-over the high income cap as the duties he undertook fell “squarely within the role definition of a property sales representative’ set out in the Award
  • formed this view because the question of Award coverage is determined not by a person’s title, rather “it is the duties performed that will be of significance”
  • noted the employee’s title of “regional director” was merely a “rank or accolade”
  • held the employee’s position in the hierarchy said little about his role “other than that he was a high performing successful employee”
  • disagreed that the employee was a senior manager as there was nothing in his regular duties which could be described as a managerial function and he had no direct reports – whilst he had general leadership expectations, it was found that these would be common amongst “most employers in the real estate industry
  • ultimately, it was held that the “fundamental or principal purpose” for which the employee’s position existed was to sell real estate, which fell under the Award
  • the employee was therefore protected from unfair dismissal

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

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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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Fair Work Commission – Investigation Procedural Deficiencies

Background

The Fair Work Commission has found that the sacking of a mother and daughter by an abortion clinic was unfair because the clinic failed to adequately investigate the allegations of fraud and bullying made against the pair [1].

Facts

In essence:

  • There were allegations that the practice manager of the clinic bullied nurses by threatening to dismiss them because they had left unconscious patients unattended.
  • Further allegations were made that both the practice manager and her receptionist daughter were incorrectly recording their hours, such as by failing to record cigarette breaks and long lunches
  • In denying the claims, both the practice manager and receptionist claimed that the director of the clinic had concocted the allegations in order replace them with his own wife and daughter.
  • There were also claims that the director stated he could not “afford to have himself or his business” involved in anti-bullying application brought by the nurses at the Fair Work Commission

Fair Work Commission – Decision

The Fair Work Commission:

  • Concluded that the dismissal was unfair because the director failed to conduct a comprehensive investigation into the bullying allegations or attempt to resolve the problems between the parties
  • Although the applicant’s inaccurate recording of time and wages was a valid reason for dismissal, the respondents argument was undermined by the “significant procedural deficiencies” in the dismissal process, including not enough time being given to the employees to prepare a “cogent” response to the allegations
  • Found that ultimately it was “underlying commercial and interpersonal factors between staff” that led to the director’s decision to terminate the practice managers employment
  • Awarded the practice manager $4500 in compensation for four weeks’ wages.
  • However, the Fair Work Commission declined to make orders to compensate the receptionist as she had “promptly secured alternative employment”

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 decision
  • ensure that where allegations of misconduct arise in the workplace, that those allegations are properly investigated and the employee concerned is given a fair opportunity to respond to the allegations
  • ensure that where disciplinary action is contemplated, in particular potential dismissal, that a procedurally fair process is followed prior to any decision being made
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • 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

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 – 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 – Ex-Director Restrained by IP

Employment Law – Background

Climate Change Technology P/L (‘CCT’) has sought an interlocutory injunction to restrain a former director and inventor of a thermal energy battery.  The employment law decision raises the importance of documenting relationships.

Employment Law – Facts

In essence:

  • first of all, Dr Patrick Glynn was employed by CCT between 2011 and 2016. He was its principal research officer and director. In addition, Dr Glynn was appointed its chief executive towards the end of his tenure at CCT
  • he invented a thermal energy storage device and assigned a patent to it in 2011. Furthermore, he signed an intellectual property agreement
  • CCT submitted that they spent about $5 million over the last six years on researching and developing the device and associated technology
  • when Dr Glynn quit in 2016, he allegedly retained intellectual property and confidential information in relation to the device. Furthermore, he set up another research and development company and an umbrella company
  • in addition, CCT alleged that Dr Glynn and the companies had been negotiating with third parties he had first dealt with when he was employed at CCT
  • consequently, CCT was granted an interim injunction in March
  • as a result, CCT are seeking the return of intellectual property and confidential information to stop its ‘misuse and dissemination’
  • furthermore, CCT are seeking to prevent Dr Glynn and the companies from exploiting business opportunities which arose while he was director and representative

Employment Law – Decision

Justice Nicholson:

  • noted an intellectual property agreement appeared to be the ‘only express written agreement potentially relevant to the parties’ relationship’
  • noted there was ‘no written employment agreement, no deed of confidentiality or restraint of trade regulating the parties’ relationship or [Dr Glynn’s] post-employment obligations with respect to [CCT] is in evidence’
  • accepted direct supporting evidence Dr Glynn worked full-time as a chief scientist. In addition, he devoted thousands of hours to its project and possessed a significant amount of confidential information about its intellectual property
  • was satisfied there was support for potential findings that CCT was the owner of the intellectual property. Furthermore, such support indicates a large number of digital files were transferred following Dr Glynn’s resignation
  • said it was open to the court to discern from email correspondence that Dr Glynn and the companies had been negotiating with third parties
  • was satisfied that damages would not be an adequate remedy
  • concluded CCT is entitled to an interlocutory injunction. The injunction will restrain Dr Glynn and the two companies from using, exploiting, destroying or altering the ‘project intellectual property and confidential information’
  • the injunction also names entities and individuals whom they are restrained from any dealings relating to the device. Furthermore, it requires the recording of any transactions or dealings in relation to the device

Employment Law – 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
  • engage an employment lawyer to draft a written employment agreement with a suitable restraint of trade clause relevant to the position
  • engage an employment lawyer to draft a suitable deed of confidentiality
  • update employment contracts in response to this employment law decision
  • consult an employment lawyer if you suspect company confidential information or intellectual property has been misused

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 →