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Bullying and Harassment Claims High in Local Government

Safe Work Australia have identified that local government employees are the third most represented group when it comes to compensation claims for Workplace Bullying and Harassment.

For the three years to 2016, approximately 190 local government employees received compensation for workplace bullying and harassment a year.

Bullying and harassment can take varying forms. It can be subtle or take the form of more overt behaviour.

What is Workplace Bullying and Harassment?

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

  • a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work; and
  • the behaviour creates a risk to health and safety.

However, bullying does not include reasonable management action carried out in a reasonable manner.

Wollondilly Shire Council

David Wilson aged 61 years, plant operator, took his own life the same day that he was informed that his most recent complaint was found to be unsubstantiated.
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New – Fixed Term Contracts Expose Employers to Unfair Dismissal

In a decision that upends a decade of legal precedent, the Full Bench of the Fair Work Commission has opened the door for employees engaged under fixed or specified-term contracts to bring unfair dismissal claims at the end of their contract term.

It has long been accepted that:

  • employers are free to structure their affairs, including the contracts they offer to employees, in the way that they think best suits their interests
  • this freedom has led to the proliferation of fixed-term or maximum-term contracts
  • where these types of employment agreements expire at the conclusion of their term, employees are not eligible to bring unfair dismissal claims because the expiry of the agreement does not result in a ‘termination of employment at the employer’s initiative’

However, in the recent decision of Khayam v Navitas English Pty Ltd:

  • a dark cloud has emerged over the above held principles
  • a distinction was drawn between:
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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
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Dismissed Woolworths Worker Denied Legal Representation

Employment Law – Background

In a Fair Work Commission ruling, a warehouse team leader and Woolworths (MLDC) have both had their requests for legal representation denied, on the basis the unfair dismissal claim was “not complex enough”.

Employment Law – Facts

In essence:

  • The team leader was summarily dismissed in May 2017 for apparently engaging in serious safety breaches, such as going underneath a forklifts tyres and failing to take immediate corrective action or follow standard risk assessment procedures for workplace hazards.
  • In applying for unfair dismissal, the employee sought to be represented by a paid agent on the basis he would struggle to argue his own case or cross-examine witnesses.
  • The employee also argued that it was unfair to deny both parties legal representation because MDLC had in-house HR/IR staff with “superior legal and communication skills”. However MDLC disputed this, highlighting that their in house HR were not legally trained or skilled in advocacy
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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).

Employment Law – Key Principles

When it comes to workplace investigations, the basics involve:

Inform

  • communicate the allegations in writing with as much detail as possible
  • advise the employee an investigation will be conducted. In addition, provide a summary of the process and meeting times

Suspend

  • if the allegations are serious or there is a risk of victimisation or reprisal, the employee should be suspended with pay (although subject to consideration of industrial instrument, contractual and company policy provisions)
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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.
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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:
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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.
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