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Warning! Casual Employee Entitled to Annual Leave

In a major decision, the Full Bench of the Federal Court has held that a worker expressly engaged as a casual was entitled to annual leave and other entitlements upon termination.

In our view, in doing so the Court has cast doubt on decades of accepted industrial practices and the decision threatens to undermine casual employment relationships around the country.

The Facts

In WorkPac Pty Ltd v Skene:

  • the employee was employed by a labour-hire company in the mining industry as a dump-truck operator and the employment was governed by the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (Agreement)
  • although the letter of employment stated he was a casual, he was subject to a continuous 7 day ‘fly-in, fly-out’ pre-set roster arrangement, worked regular and systematic shifts, stayed in accommodation at/near the mine and was expected to attend each shift
  • an ‘all-in flat rate’ of pay was payable for each hour of work although WorkPac did not specify what entitlements this flat rate of pay purported to absorb
  • the annual leave provision in the Agreement stated it only applied to permanent employees
  • although no annual leave was taken during employment and the employee was not paid any annual leave or notice upon termination, a claim seeking payment of same was filed

The Issues

Whilst the Fair Work Act states paid annual leave applies to all national system employees “other than casual employees”, it does not define a “casual employee” thus the issues for the Court were: [...]  READ MORE →

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Unfair Dismissal – Are Employers on their Own?

A recent decision of the Fair Work Commission may force employers to fend for themselves in proceedings before the Commission, such as unfair dismissal, by denying them the right to even have legal assistance in the background.

In Stephen Fitzgerald v Woolworths Limited:

  • section 596 of the Fair Work Act requires a party involved in a matter before the Fair Work Commission to seek leave to be represented by a lawyer or paid agent
  • the employer (a national supermarket chain with a dedicated HR department) wished to be represented by a lawyer at a contested unfair dismissal hearing
  • this request was refused, however, the Fair Work Commission stated this did not prevent the employer from obtaining background or shadow assistance from its lawyers prior to the hearing
  • on appeal, however, it was held that the concept of legal representation extends beyond mere advocacy at the final hearing and into the realm of advice and/or the preparation of documents beforehand

Employers must be conscious that the right to legal representation in the Fair Work Commission is not automatic or guaranteed and can potentially exclude an employer from having the benefit of pre-hearing legal assistance.

Thus, all employers are strongly encouraged to seek early and proper advice from an employment lawyer as to: [...]  READ MORE →

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Employment Law – Employee Compensated After Award Obligations Ignored

Employment Law – Background

The Fair Work Commission has compensated an employee who was unfairly dismissed because her employer failed to comply with their consultation obligations under the relevant award.

Employment Law – Facts

In essence:

  • Carer’s that Care (CTC) terminated Ms Morris’ employment because it could not afford to pay her full-time wage after losing a significant number of clients
  • Ms Morris argued that she hadn’t received any warnings but was only told that CTC was shutting down and staff would be made redundant
  • She also argued that she was not provided with the opportunity to respond, because the managing director refused to have any discussions with Morris
  • Morris lodged an application for unfair dismissal

Employment Law – The Relevant Law

  • Section 389 of the Fair Work Act (‘The Act’) states that a genuine redundancy occurs when an employee’s position is no longer required and the employer has complied with any obligations under the modern award or enterprise agreement
  • The Fair Work Commission will then examine whether the dismissal was harsh, unreasonable or unjust under s387 of the Act

Employment Law – Fair Work Commission decision

The Fair Work Commission:

  • found that the employee’s dismissal was not a genuine redundancy because the consultation obligations under the Clerks-Private Sector Award were not satisfied
  • accepted that Ms Morris was dismissed because her role could no longer be performed due to operational changes
  • found that the company had failed to consult with Ms Morris as required under the award was significant. Additionally, the company only verbally notified Morris of the dismissal
  • consequently ruled that her dismissal was harsh, unjust or unreasonable.
  • ordered compensation of $5482

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

Morris v Community Caring P/L t/a Carers That Care (U2017/6386) [2017] FWC 4433

Employment Law – Tips for Employers  [...]  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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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

In summary, the new laws commencing on this date:

  • make certain franchisors and holding companies liable if:
    • their franchisees or subsidiaries do not meet workplace law requirements; and
    • they knew or should have known and could have prevented it

    The Sting

    An employer that fails in their due diligence, namely:

    • investigating which Modern Awards/enterprise agreements apply at their workplace
    • ensuring minimum rates of pay, loadings, allowances and other payments are paid and on time
    • ensuring pay-slips are issued on time and in conformity with workplace law requirements
    • ensuring employee records are fully and accurately maintained

    faces an increased risk of:

    • investigation and prosecution
    • loss of goodwill/reputation
    • turnover of staff
    • loss of morale amongst remaining staff

    Personal Liability – Directors, Managers and Others

    It is also timely to remember that those involved in any contravention such as directors and managers (including payroll and HR staff) can also be held personally liable and prosecuted. [...]  READ MORE →

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FWC: Ruling on Out-of-Hours Work

Employment Law – Background

In Shea Munro v Wilmar Australia, the Fair Work Commission ruled that whilst working out of hours during carers leave was not a valid reason for dismissal, a refusal to follow a lawful and reasonable direction to provide information about the out of hours work justified termination.

Employment Law – Facts

In essence:

  • Munro was employed by Wilmar Australia, a sugar cane operator, across a range of roles including fort lift operator, engineer’s assistant, general mill worker and roving driver.
  • Munro also operated his own business offering cane harvesting and slashing, lawn mowing and agricultural equipment repairs.
  • When he was hired, Munro assured Wilmar that he could safety work for them whilst running his own business, by employing a casual employee to fulfil his duties when he was rostered on at Wilmar.
  • In August, Munro was granted a week’s paid carer’s leave as his wife had been hospitalised. However, Wilmar discovered that Munro has been working in his own business harvesting cane during that time.
  • Munro was issued with an Intolerable Breach Notice and a list of conditions to comply with, such as submitting weekly time sheets indicating the time he spend working in his own business.
  • However, Munro refused to accept Wilmar’s terms, claiming that it was an attempt to make him resign and that he cared for his family in the evenings and had only worked on his business during his free time.
  • Wilmar argued that Mr Munro had engaged in serious misconduct by undertaking work on his paid leave days and that he had also failed to follow a reasonable direction by refusing to disclose the extent and timing of his activities when working for his business. They claimed they needed this information to manage potential fatigue and safety issues.

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • held that Mr Munro’s claim for carers leave was genuine as he cared for his partner during the evenings, when he was normally rostered on for work
  • established there was no misconduct on the basis that where other activities “occur outside the worker’s ordinary hours of work, and there is adequate care for the ill or injured family member, this should be of no concern to the worker’s employer”
  • found that Munro’s refusal to provide the information was a valid reason for dismissal. This was because Wilmar had a duty of care to ensure Munro was not fatigued, and therefore was sought for an “appropriately legitimate purpose”
  • ruled the termination of Munro was not harsh, unjust or unreasonable

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

Mr Shea Munro v Wilmar Australia Pty Ltd  [2017] FWC 2493 [...]  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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Fair Work Commission: Compensation Awarded for Underpaid Employee

The recent Fair Work Commission decision Sebastien Mezino v Baia the Italian Pty Ltd , where a French restaurant worker was awarded compensation after being unfairly dismissed for raising underpayment concerns, serves as a reminder of the importance of employers being aware and complying with industry awards.

The Case

In essence:

  • Mr Mezino, a French national, was employed as a floor supervisor at an Italian restaurant in Darling Harbour from November 2015 until his dismissal in April 2017
  • He was initially paid $20 per hour. However, after 3 weeks Mr Mezino raised concerns about his pay rate with the restaurant manager, Mr Stauder. He was informed that it was too early to discuss pay changes, and was assured there were opportunities for visa sponsorship
  • By June 2016, his pay rate hadn’t changed, despite being rostered as a manager, and undertaking various managerial and recruitment responsibilities. However, he was offered the opportunity for sponsorship by the manger
  • In November 2017, Mr Mezino again questioned his pay rate, yet was assured that his pay would increase once sponsorship was approved
  • After suffering a work-related injury and inquiring about sick leave in March 2017, Mezino was told he couldn’t accumulate leave until his sponsorship was approved
  • After an 11 day absence, Mr Mezino met with Mr Stauder to advise him he was ready for work and presented him with research he had undertaken on his award rate. Stauder stated that restaurant owner would likely respond to Mezino’s research by cancelling Mezino’s visa application and firing him. Stauder also claimed that the company wasn’t covered by Fair Work
  • On the same day, Mezino sent correspondence to Stauder seeking a back payment of wages totally $25,124
  • On 20 April, Mr Mezino was removed from the work Facebook group with a post appearing that announced he had resigned. His name then disappeared from the roster and he received a letter from Solicitors stating they were no longer acting in the matter of his 457 visa. He never received a termination notice.

The Decision

The Fair Work Commission:

  • held the dismissal was harsh, unjust and unreasonable
  • labelled the actions of the employer in utilising its 457 visa-related leverage to underpay an employee and dismissing an employee when they sought to assert their lawful entitlements as behaviour of the “shabbiest type”
  • awarded Mr Mezino $15,000 in compensation

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

Sebastien Mezino v Baia the Italian Pty Ltd T/A Baia THE ITALIAN [2017] FWC 3692 (14th July 2017) [...]  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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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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Fair Work Commission: On-Hire Worker Unfairly Dismissed

Employment Law – Background

In Tasmanian Ports Corporation Pty Ltd t/a Tasports v Mr Warwick Gee, the Fair Work Commission confirmed that labour hire companies cannot dismiss workers on the grounds that they have run afoul of a host employer.

Employment Law – Facts

In essence:

  • A shiploader was dismissed by TasPorts in 2015 after his access to a site in Tasmania was revoked by his host employer, iron ore miner Grange Resources Limited
  • Grange Resources accused the shiploader of misconduct and blocked his access to the port after he allegedly failed to follow reasonable work directions, breached reporting protocols and posted unauthorised photos of their assets on social media
  • Tasports argued that there was a valid reason to dismiss the shiploader under s387(a) of the Fair Work Act as he no longer had the capacity to do the job and access the site

Employment Law – Fair Work Commission Decision

The full bench of the Fair Work Commission:

  • Concluded that the Grange Resources removing the shiploader from a site was not a valid reason for their dismissal, utilising the principles set out in Kool v Addeco which established that the individual circumstances of the case determine whether there was a valid reason.
  • They confirmed the approach taken in the Adecco and Pettifer cases, whereby “the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee” and that “labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly”
  • Found that Tasports had failed to establish that the host employer had a legal right to remove the ship loader, or that it was unable to maintain his employment
  • Criticised the fact that Tasports had failed to independently investigate whether the shiploader committed the alleged misconduct. They also failed to adequately consider alternatives for the shiploader’s redeployment
  • Referred the matter back to the deputy president to consider the appropriate remedy

Employment Law – Tips for Employers

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