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Fair Work Commission – Employee not Subcontractor

Fair Work Commission – Background

In the case of Zielke v Pro-Built Engine Reconditioning Pty Ltd [2017], the Fair Work Commission has found that a worker who claimed they were unfairly dismissed was an employee, instead of a subcontractor.

Fair Work Commission – Facts

In essence:

  • The worker claimed they were dismissed unfairly
  • The employer, Pro-Built Engine Reconditioning argued that the worker was a subcontractor, instead of an employee. This was on the basis he only worked as needed and a verbal agreement with him that he would be on a set wage per week and he would pay his own tax and superannuation
  • However, the worker claimed he was a full-time employee. This is because he was paid a net $800 per week, every week, never provided invoices to the employer and was given group certificates during his engagement

Fair Work Commission – Decision

The Fair Work Commission:

  • Found that the worker was an employee
  • This finding was on the basis that he was required to consult the employer before taking leave, had to catch up on tasks after he returned from leave and had set hours of work. He was also paid whilst on leave, didn’t advertise his services or have a separate place of work and the employer supplied all his tools
  • Concluded that the employer had no valid reason to dismiss the worker and had denied him procedural fairness

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
  • make sure that the terms and conditions of engagement are clearly set out in writing prior to the commencement of the engagement
  • Do not confuse aspects of an employment relationship with that of a subcontractor and principal
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • penalties 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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Fair Work Commission – Social Media Posts

Fair Work Commission – Background

The Fair Work Commission found an employee dismissal to be unfair. Mr Somogyi was dismissed because of vulgar social media misconduct. However, a fair dismissal procedure must be followed by employers.

Fair Work Commission – Facts

In essence:

  • Somogyi was employed as a merchandiser at LED Technologies Pty Ltd
  • on 24 August 2015, he posted on Facebook: “I don’t have time for people’s arrogance. And your not always right! Your position is useless, you don’t do anything all day how much of the bosses c*** did you suck to get where you are?”
  • the post was seen by several of Mr Somogyi’s colleagues before he removed it after five minutes
  • his employer dismissed Mr Somogyi in a sixty second telephone call. The employee was told: “it doesn’t matter. You’re fired”
  • the employer failed to provide the employee an opportunity to explain his conduct
  • furthermore, the employer mistakenly interpreted that the post was referring to employees of LED Technologies Pty Ltd
  • the employee reposted a ‘clarification’ explaining his original post. He was referring to a hostile employment situation his mother was facing elsewhere

Fair Work Commission – Decision

The Fair Work Commission found:

  • the Facebook post was ‘crude and immature’
  • the post did not constitute a valid reason for dismissal
  • offensive and vulgar language are increasingly part of the common vernacular
  • there was no evidence the post was directed at the business or its employees
  • no evidence that Mr Somogyi was provided a social media policy
  • there was no sufficient connection to the workplace to justify legitimate action against Mr Somogyi
  • Mr Somogyi was to be compensated with the difference in his earnings from another role for a period of six months

Employment Law – Tips for Employers

Unfair dismissal claims must be confined to their own facts. Therefore, 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
  • prepare new social media policies as required
  • update employment law policies in response to this Fair Work Commission decision
  • draft new/changes to employment law policies with the assistance of an employment lawyer
  • train and consult with staff about social media in the workplace and the impact it can have on employment
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)

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 – Re-Determination of Safety Dismissal

Fair Work Commission – Background

A Fair Work Commission decision has been ordered a re-examination by a Full Bench of the FWC for the dismissal of an employee for his ‘nonchalance’ towards Work, Health & Safety obligations, lack of remorse after a workplace incident and failure to wear safety glasses.

As Commissioner Tanya Cirkovic did not make a finding in regard to the workplace incident, there was no valid reason to conclude the employee had been negligent in complying with safety requirements or failing to report the incident. [...]  READ MORE →

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Employment Law – Out-of-Hours Misconduct Dismissal Too Harsh

Employment Law – Background

In the Fair Work Commission decision of JC v Bechtel Construction (Australia), an employee won reinstatement and back-pay after he was dismissed for out-of-work misconduct when his partner, who was employed by the same company, was only given a workplace warning.

Employment Law – Facts

In essence:

  • Mr C was employed as a rigger by Bechtel Construction Australia on the Wheatstone Liquefied Natural Gas Project in Western Australia
  • in the incident in question, Mr C checked into a hotel in Onslow on a weekend with his partner Mrs H who was also a Bechtel employee
  • they were wearing their Bechtel uniforms when they checked in, however, Mr C had paid for and organised the trip separately of Bechtel
  • Mr C had a 15-30 minute argument with Mrs H in his own hotel room which was loud enough to disturb and alarm other guests
  • the hotel manager was unhappy and contacted Bechtel
  • Bechtel conducted a workplace investigation and dismissed Mr C who then sought a finding of unfair dismissal
  • however, Mrs H was merely given a final written warning because the investigators believed she was the “victim” not the instigator of the incident

 

Employment Law – Decision

The Fair Work Commission found:

  • Mr C’s dismissal was for a valid reason, but was found to be both harsh and unjust
  • Mr C’s failure to comply with workplace codes and directions can form a valid reason for dismissal
  • Mr C signed an employment contract which expressly required him to comply with, and accept, the company’s workplace policies
  • clauses in the relevant workplace policy stated that particular acts could constitute misconduct or serious misconduct which could jeopardise his employment
  • Mr C should not have been dismissed for a single act of misconduct because his shouting and arguing was merely considered misconduct, not serious misconduct, sighting the company workplace policy that specifically stated that “drunken behaviour in public that causes a disturbance or a nuisance to others” as an example of misconduct
  • Bechtel’s differential treatment of Mr C and Mrs H was harsh because Bechtel’s own workplace policy required them to hold both participants of the offensive behaviour equally accountable
  • both parties were equally responsible for the disturbance as their conduct was properly comparable, consequently equal disciplinary action would have been expected
  • Mr C’s reinstatement was appropriate as the misconduct occurred outside of the workplace and the character of the misconduct didn’t prevent Mr C from carrying out his workplace duties
  • an order for reinstatement to his employment and back pay was made

 

Employment Law – Tips for Employers

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

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Employment Law – Redundancy and Job Swaps

Employment Law – Background

The Fair Work Commission decision in Skinner v Asciano Services Pty Ltd serves as a warning for employers to consider all redeployment possibilities, including voluntary job swaps, before making an employee redundant.

Employment Law – Facts

In essence:

  • Pacific National was experiencing a reduction in workload due to reduced export grain demand, client loss and the closure of a key site
  • consequently, its national operational requirements changed in its bulk haulage division
  • Pacific National Bulk (PNB) made multiple positions redundant, both voluntarily and forced
  • PNB followed a redeployment process for affected employees, specifically those whose employment was involuntarily terminated, whereby they held consultation meetings and advised of available internal transfer opportunities
  • despite the redeployment process, in the original decision, nine employees who were train drivers before being made redundant filed unfair dismissal applications, arguing that their redundancies were not genuine under the Fair Work Act
  • the Fair Work Commission was initially satisfied that there was a genuine redundancy in each case, and it was not reasonable for PNB to deploy the employees
  • seven employees appealed the original decision of the Fair Work Commission by primarily arguing that the PNB had failed to comply with its redeployment obligations under the Fair Work Act

 

Employment Law – Decision

The Fair Work Commission on appeal:

  • overturned the initial decision of the Fair Work Commission
  • found that PNB had breached its statutory obligation under the Fair Work Act to explore redeployment options by failing to consider the possibility of job swaps for the affected employees
  • stated that whilst there is not an obligation on an employer to implement job swaps, they should still consider whether it is reasonable in the circumstances of the workplace
  • considered the following five factors in coming to decision that PNB should have offered job swaps
  • one – PNB was a large company with a large amount of employees who undertook the same role to those who were made redundant
  • two – numerous employees performed the same role of train driving which meant that in allowing swaps PNB would not face onerous training requirements
  • three – there were potentially job swaps available in depots that were reasonably close to depots where some of the affected employees worked. This meant PNB would not have costs associated with transferring the employees
  • four – PNB had already canvassed job swaps as a possibility to mitigate the effects in the round of redundancies which resulted in the employees dismissal
  • five – PNB had previously allowed job swaps in similar circumstances

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • carefully consider the impact of this Fair Work Commission decision when considering redundancies
  • consult with employees as to all possible options for redeployment before terminating their employment for redundancy reasons
  • this includes exploring whether the employee can swap their employment position with another employee who wishes to accept a voluntary redundancy of their employment position
  • update employment law policies, especially those relating to termination of employment and redundancy, in response to this Fair Work Commission decision
  • 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
  • raise any employment law questions with an employment lawyer

Employment Law – More Information [...]  READ MORE →

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Employment Law – Loss of Mutual Trust Causes Resignation

Employment Law – Background

Workplace relations between a surgeon and his practice manager had eroded to the extent that her subsequent resignation was held to be a constructive dismissal (meaning it was, in effect, a dismissal by the employer).

Employment Law – Facts

In essence:

• the practice manager was employed by an orthopaedic surgeon and developed a close friendship with the surgeon’s wife over several years
• the surgeon’s marriage ended in 2012 and the practice manager found out in 2013 from other employees about his new relationship with a nurse and she became upset because she was not informed about the marriage breakdown
• the surgeon employed the nurse to assist with patient care in 2014 and the practice manager’s workplace conduct changed including taking a Friday afternoon off without informing the surgeon, causing difficulties with the surgical list for the following week, writing terse emails, and refusing to teach the nurse office practices
• the surgeon requested her to remain professional and courteous in all her dealings
• in August 2016, the practice manager emailed the surgeon alleging verbal harassment and bullying from the surgeon and the nurse over the last three years was causing her stress
• after several attempted consultations the practice manager volunteered to resign, citing lack of loyalty and said to the surgeon “our relationship has ended”
• she sought an unfair dismissal remedy under the Fair Work Act 2009 because her termination was a constructive dismissal and had been harsh, unjust and/or unreasonable
Employment Law – Fair Work Commission Decision [...]  READ MORE →

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Fair Work Commission – Stop Bullying Order Rejected

Background
In B v Park Beach Bowling Club Limited [2017], the Fair Work Commission rejected an application for a stop bullying order on the basis that there was no evidence of repeated unreasonable conduct by the employer.

Facts/Findings
• The complainant was employed as a casual food and bar attendant at a club
• She alleged that the administration and events manager and the CEO had bullied her within the meaning of bullying under section 789FD of the Fair Work Act 2009. She applied to the Fair Work Commission for a stop bullying order
• The bullying related to four incidents, and the findings were as follows: [...]  READ MORE →

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Fair Work Commission – Employer Restrained

Background

An interim order has been issued by the Fair Work Commission to restrain an employer, Bendigo Kangan Institute t/a Bendigo TAFE, from taking disciplinary action against an executive director. The executive director had filed an anti-bullying application against her employer prior to the allegations of misconducted directed at her.

The interim order is the first of its kind in the Fair Work Commission anti-bullying jurisdiction.

Facts

In essence:

• the executive director filed a bullying complaint against other directors in March this year with the Fair Work Commission
• Bendigo TAFE alleged misconduct on behalf of the executive director. The employer used a third party to conduct an investigation into her alleged misconduct under the supervision of the board with the exception of the directors named in her bullying complaint
• Bendigo TAFE stood her down on full pay on March 28 and required her to attend a management meeting on April 3 for her to respond to the investigation’s draft findings
• the executive director was diagnosed with depressive illness and was on sick leave since March 30
• she was certified medically unfit until April 23 and did not attend the meeting on April 3
• the executive director sought an interim order from the Fair Work Commission to restrain Bendigo TAFE from potentially dismissing her because her anti-bullying application would fail otherwise
• Bendigo TAFE argued the prospective injunction restraining disciplinary action against the executive director was beyond the Fair Work Commission’s powers [...]  READ MORE →

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Employment Law – Loss of Mutual Trust Causes Resignation

Employment Law – Background

Workplace relations between a surgeon and his practice manager had eroded to the extent that her subsequent resignation was held to be a constructive dismissal (meaning it was, in effect, a dismissal by the employer).

Employment Law – Facts

In essence:

• the practice manager was employed by an orthopaedic surgeon and developed a close friendship with the surgeon’s wife over several years
• the surgeon’s marriage ended in 2012 and the practice manager found out in 2013 from other employees about his new relationship with a nurse and she became upset because she was not informed about the marriage breakdown
• the surgeon employed the nurse to assist with patient care in 2014 and the practice manager’s workplace conduct changed including taking a Friday afternoon off without informing the surgeon, causing difficulties with the surgical list for the following week, writing terse emails, and refusing to teach the nurse office practices
• the surgeon requested her to remain professional and courteous in all her dealings
• in August 2016, the practice manager emailed the surgeon alleging verbal harassment and bullying from the surgeon and the nurse over the last three years was causing her stress
• after several attempted consultations the practice manager volunteered to resign, citing lack of loyalty and said to the surgeon “our relationship has ended”
• she sought an unfair dismissal remedy under the Fair Work Act 2009 because her termination was a constructive dismissal and had been harsh, unjust and/or unreasonable
Employment Law – Fair Work Commission Decision [...]  READ MORE →

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Deed of Release prevented claim against Employer

Background

In a recent Federal Circuit Court decision, a college teacher who claimed she was suffering from a psychological disability attempted to render her Deed of Release – signed in 2007 – invalid. However, due to a lack of medical evidence her claim was unsuccessful.

The Facts [...]  READ MORE →

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Swearing Did Not Warrant Summary Dismissal

The Fair Work Commission has awarded an Operations Manager $27,787 in compensation following a finding that swearing at another manager was not sufficient to justify his summary dismissal.

Facts

In essence:

  • On or around July 2016, the Operations Manager had a heated argument with the national WHS Manager of Precepts Services Pty Limited (‘the employer’). The WHS Manager happened to be the wife of the employer’s Managing Director.
  • Prior to the argument, the WHS Manager had a meeting with the Operations Manager’s son – who was employed by the employer as an apprentice electrician – in relation to concerns about his performance.
  • The Operations Manager questioned why he was not invited to attend his son’s performance review meeting, and allegedly said to the WHS manager: “Your sneaky husband made that decision, did he?”
  • The WHS manager asked what he had meant by “sneaky”. In response, the Operations Manager referred to a previous phone conversation between his (i.e. the Operations Manager’s) wife and the Managing Director in relation to a dispute over their son’s wages. The Operations Manager relayed that during the phone conversation, the managing director allegedly swore at the Operations Manager’s wife, saying to her “f-ck off, you do not have your facts right”, and then hung up on her.
  • The Operations Manager then allegedly leant over the table of the WHS manager and asked her twice: “How would you f-cking feel if I said get f-cked to you?”
  • In September 2016, the Managing Director directed the Operations Manager to attend a meeting to discuss allegations of misconduct made against him. The Operations Manager attended the meeting, during which he was summarily dismissed.
  • According to the Operations Manager, the Managing Director had a habit of swearing at employees including his own wife (the WHS manager), and regularly punched and kicked walls in the office.

Swearing not sufficient to justify summary dismissal [...]  READ MORE →

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Fair Work Commission – Judgment on Email

Background
In the Fair Work Commission decision of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd, the Fair Work Commission upheld the dismissal of an accounts manager for making offensive comments about clients in an email she accidentally sent to them.

Facts
In essence:

  • a cosmetic company employer summarily dismissed their key accounts manager who had worked for them for 15 years and who had no prior misconduct warnings, for breaching the employer’s employment law policies (being their code of conduct and IT policies)
  • the accounts manager had written an abusive email about the employer’s clients which she had intended to send to a contractor, who was also her friend, however, the clients were accidentally copied into this email
  • the chief executive of a client contacted the employer’s sales director demanding that there be consequences for the employee’s actions and that he would no longer deal with any company represented by that accounts manager
  • although she apologised for sending the email and sharing the client’s details, she explained that she had accidently sent the email to the client because she was having “recent issues with concentration and focus”
  • she also claimed that she was suffering post-traumatic stress disorder, having performance difficulties, and had inadequate support from management in implementing organisational change

Decision

The Fair Work Commission stated:

  • the account manager’s actions constituted a valid reason for dismissal
  • the employee’s actions breached the employer’s employment law policies (ie, the code of conduct and IT user conduct policies)
  • that even if the comments were not emailed to clients, her comments were “entirely inappropriate”, particularly because it was her job as accounts manager, “to manage relations with key customers”
  • the fact that the email was sent to clients ”greatly multiplied the gravity of the misconduct”
  • the employer had taken appropriate action to the incident in allowing the account manager to respond by email when she was too unwell to attend a meeting and then taking her explanation into account (and this included paying the employee in lieu of notice because she did not mean to send the clients the email)
  • that although the employee had apologised for her actions and had been with the company for 15 years, these factors did not “outweigh the gravity of the misconduct so as to render the dismissal harsh

Workplace 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 where they have a similar workplace matter
  • draft proper employment law policies governing workplace conduct
  • as necessary include conduct provisions in an employment contract and ramifications for breach
  • train staff about those employment law policies
  • ensure compliance with employment contracts and employment law policies
  • fairly, properly, consistently and lawfully respond to breaches of employment contracts and employment law policies (ie, on a case-by-case and factual scenario basis)
  • understand what conduct provisions may be contained in an applicable modern awards or enterprise agreement that need to be taken into account and complied with

More Information

For further information regarding any matter to do with workplace law, 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 →