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Fair Work Commission Allows Late Dismissal Claim

Employment Law – Background:

In Yu Duo (Lynda) Lin v Woolworths Limited, the Fair Work Commission found that a mix of three factors including a “significant” mental illness, justified extending the time for an unfair dismissal application lodged 164 days late for a Woolworths worker.

Employment Law – Facts:

In essence:

  • The worker was employed at Woolworths Prahran store’s delicatessen in May 2014. However, her weekly hours were dropped from 20 or 30 hours to 10 after a new deli-manager started in October 2015.
  • In December 2015, Police removed her from the Prahran store and she was detained after an altercation with the manager.
  • In response to this Woolworths moved her to various stores. However, in October 2016 she was suspended after police were called after an altercation with another employee.
  • Following an investigation, Woolworths met with the employee in December 2016 where they gave her option of resigning or face dismissal.
  • The employee argued that her employment had caused the mental illness, however Woolworths believed it was her “mental state which caused her difficulties at work”
  • Her illness culminated in a 10-day psychiatric admission in hospital in April 2017
  • In June 2017, the Fair Work Commission dismissed an anti-bullying complaint she made against the manager because her job ended in December 2016

Employment Law – Fair Work Commission Decision:

The Fair Work Commission:

  • extended the deadline for the unfair dismissal claim beyond the usual 21 day deadline after her employment ended in December 2016
  • stated usually “the longer the delay in making an unfair dismissal application the more difficult it will generally be to get over the high hurdle of exceptional circumstances”
  • held however in this case, that a combination of factors amounted to exceptional circumstances including: the employee’s “significant” mental illness, her initial lack of knowledge about her rights and her “misapprehension” that the Fair Work Commission would consider the circumstances of her resignation when she lodged a workplace bullying complaint
  • found that her understanding of her rights under the Fair Work Act was “potentially made more limited” by her and her father’s “relatively basic English skills”
  • returned the case to general unfair dismissal list for consideration

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

Yu Duo (Lynda) Lin v Woolworths Limited [2017] FWC 4019 (2 August 2017) [...]  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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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 →

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Employment Law – Modern Awards Reductions

Employment Law – Background

In June this year, the Fair Work Commission (FWC) announced the reductions of public holiday penalty rates for the hospitality, retail, fast food and pharmacy sectors. The reductions were decided as part of the FWC’s four-yearly review of modern awards.

As of 1 July 2017, public holiday penalty rates were reduced while Sunday rates will reduce over three to four years. Although the unions argued for the delay in reductions, the FWC agreed with employer organisations. As a result, the first transition step is smaller than later transitions. Furthermore, the retail and pharmacy sectors will have longer transition periods due to their reductions being more significant. [...]  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 →

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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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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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Fair Work Commission – Minimum Wage to Increase by 3.3%

Background

On 6 June 2017, The Fair Work Commission announced a 3.3% increase to the national minimum wage and minimum award wages.

The Fair Work Commission Decision

In essence:

  • The national minimum wage will now be $694.90 per week, or $18.29 per hour
  • This is an increase of $22.20 per week to the weekly rate and 59 cents per hour to the hourly rate
  • The changes will be effective 1 July 2017

Fair Work Commission’s Reasoning – Economics & Worker Poverty

  • The Fair Work Act required the Fair Work Commission to take into account economic considerations
  • However, they were satisfied that the level of increase decided upon would not lead to inflationary pressure and would be highly unlikely to have any measureable impact on employment or lead to job losses
  • They based these conclusions on findings that productivity growth has risen sharply and profit growth had been “particularly strong” in 2016 compared to previous years. Consequently, business conditions were positive and above long-term averages
  • The Fair Work Commission concluded that increasing the minimum wage would improve the relative living standards of those employees who are reliant on the national minimum wage, lifting the lowest-paid out of poverty
  • However, they did acknowledge that the increase would not lift all-award reliant employees out of poverty, especially those households that have dependent children and a single-wage earners

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review these employment law changes
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • ensure employment contracts and employment law policies comply with relevant employment laws, Fair Work Commission decisions, common law employment law principles and contractual obligations
  • update employment contracts in response to this employment law change
  • raise any employment law questions with an employment lawyer
  • damages can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)

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 – New Financial Year Changes

What every employer MUST know for 1 July 2017

With the commencement of a new financial year, it brings with it important changes and new rates which will apply from 1 July 2017.

NEW! High Income Threshold (HIT)

With the HIT:

  • it is expected to increase to $143,500 (subject to formal confirmation by the FWC)
  • it impacts:
  • who can make a claim for unfair dismissal (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)
  • the maximum amount of compensation payable in an unfair dismissal claim
  • those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whilstever this guarantee is in place provided it continues to meet the relevant legislative requirements)

NEW! Modern Award Increases

With Modern Awards (including enterprise awards):

  • minimum wages increase by 3% (starting on the first full pay period on or after 1 July 2017)
  • absorption of wage increases into over-award payments is permissible (subject to the terms of the relevant employment agreement and what other amounts are being absorbed into any annualised salary)
  • increases to the minimum wages of junior workers, apprentices, trainees, piece workers and employees on the supported wage system will occur
  • expense-related allowances in Modern Awards will increase as set out in the Modern Award (eg, by the applicable CPI index figure)
  • annualised salaries will need to be checked to ensure they can still properly absorb/include all relevant minimum Modern Award amounts and that they continue to meet the technical requirements of the Modern Award

NEW! National Minimum Wage (NMW)

With the NMW:

  • this is applicable to employees to whom neither a Modern Award or enterprise agreement applies
  • the NMW increases by 3% to become $694.90 per week or $18.29 per hour
  • in addition:
  • special NMW rates apply to employees with disabilities, junior employees, apprentices, and those on training arrangements
  • the minimum casual loading remains unchanged at 25%

NEW! Impact on Enterprise Agreements

With enterprise agreements:

  • they must always meet or exceed the minimum wage of:
  • the relevant Modern Award (ie, the Modern Award that would have applied had the enterprise agreement not been in existence)
  • the NMW (ie, where a Modern Award would not apply even if the enterprise agreement was not in existence)
  • thus, pay rates in enterprise agreements may need to be increased (even if the enterprise agreement has its own wage increase regime)

NEW! The Sting

Be mindful that wage increases may have flow-on effects such as increasing:

  • the value of leave loading, penalty rates, overtime and superannuation contributions
  • the value of accrued leave entitlements
  • the cost of wage related expenses such as payroll tax and workers compensation premiums

NEW! Redundancy

The tax-free component of a genuine redundancy payment increases to be:

  • a base amount of $10,155
  • an additional amount of $5,078 for each completed year of service

NEW! Superannuation Contributions Base

With superannuation:

  • the maximum superannuation contribution base increases to $52,760 per quarter ($211,040 per annum)
  • an employer is not required to make superannuation contributions on behalf of employees on earnings in excess of that maximum contribution base

Questions/Assistance

If you have any questions or would like any assistance, please feel free to speak with or email a member of our Matthews Folbigg Workplace Solutions team on (02) 9635 7966 or jcc@matthewsfolbigg.com.au [...]  READ MORE →