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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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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: [...]  READ MORE →

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Employment Law – WARNING! Inappropriate Christmas Party Behaviour

Employment Law – Christmas Party Behaviour

With the festive season upon us, a few timely reminders to avoid the celebratory hangover and deal with its effects should it arise. Although we wish all of our staff enjoy the end of year parties and behave themselves, alas this does not always occur.

Below we set out some of the key employment law matters an employer needs to bear in mind:

Do’s and Don’ts

  • do ensure you have suitable workplace policies in place including drug & alcohol policies, bullying, harassment and discrimination policies, WHS policies, grievance procedures and any other relevant codes of conduct
  • do remind and train staff including managers about your relevant workplace policies before the function and, for guidance purposes, give examples of behaviour that is and is not acceptable
  • do empower relevant managers to act if they observe any improper conduct during the course of the function
  • do check your insurance policies to ensure they cover the type of event being held
  • do provide sufficient food (and non-alcoholic drink options) if alcohol is being served
  • do make clear any post-event activities are solely on the employee’s time and not the employer’s and that the employer does not endorse any activities that occur after the official finishing time of the party
  • do assist with organising appropriate travel home for those at risk (eg, those having consumed too much alcohol and where safety concerns arise for those travelling late at night especially solo)
  • do properly and promptly investigate complaints of inappropriate behaviour if they arise
  • do implement fair and consistent disciplinary measures if a complaint is upheld
  • don’t engage in, encourage or condone irresponsible service of alcohol (if you have concerns, ensure that staff member is no longer served alcohol and assist with travel arrangements home)
  • don’t dismiss complaints on the basis of “well that’s just how he/she is” or sweep them under the carpet hoping they will go away

The Sting

Although the party may be held off-site and/or under the control of a third party host an employer can nevertheless still be exposed to claims relating to, and the consequences of, inappropriate behaviour such as: [...]  READ MORE →

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Employment Law – Bupa Criticised for Disciplinary Process

Employment Law – Background 

The Fair Work Commission has found that a vulnerable aged care worker was unfairly dismissed due to her employer, Bupa Aged Care, acted unconscionably. Bupa were criticized for their “unprofessional, discourteous and unfair” disciplinary process.

Employment Law – Facts 

In essence:

  • Shahin Tavassoli, a refugee from Iran with limited English skills, was employed by Bupa
  • On the weekend of 13-14 November 2016, a colleague secretly recorded her on his mobile singing “I can do anything better than you” following a heated exchange between a resident and a nurse and also allegedly laughing and joking at the death of two residents
  • A second video, recorded the following day, allegedly captured her sitting in the TV room ignoring resident’s buzzers
  • These videos were shown to David Brice, acting general manager of Bupa Mosman a Miriam Lyman, care manger
  • On 16 November, Tavassoli attended work training. However, at 2pm Brice escorted her from the premises, only telling her that there had been serious allegations made against her and he was waiting for more documentation in a few hours.
  • In the two hours Tavassoli allegedly sat outside the facility, she jumped to the conclusion that the allegation may involve beer that a resident offered her. Determined not be terminated for stealing, she asked a college for help drafting a resignation letter. Brice didn’t accept this resignation letter
  • In a meeting with Tavassoli at 4pm, Brice read letters from Bupa containing allegations of misconduct and informed Tavassoli was being suspended on pay for an investigation
  • She never received a copy of this correspondence or the video footage
  • Brice also informed that unless she altered the date of her resignation, she was required to partake in the investigation. She then scribbled out the initial 4 weeks’ notice and gave the resignation back
  • The next day, Brice sent her a letter accepting her resignation. However, the following day Tavassoli attended the facility to rescind her resignation which was refused

Employment Law – Fair Work Commission Decision

Resignation or constructive dismissal?

The Fair Work Commission:

  • found Ms Tavassoli was constructively dismissed, on the basis that Mr Brice should have taken additional steps to ensure she understood the investigation and the effect of her resignation
  • believed Ms Tavassoli should have been “provided with copies of the letters and sent home to discuss them with her family”
  • stated it was not “satisfactory to say Ms Tavassoli resigned at her own free will when Bupa knew of Ms Tavassoli’s poor language skills and her emotional state”
  • found that Mr Brice suggesting an amendment to the resignation letter suggests that the termination “becomes one at the invitation of the employer”
  • also believed that it was unconscionable for Mr Brice to escort Ms Tavassoli from the premises and advise her not to return for 2 hours, without providing a reason for such process.

Was the dismissal unfair?

The Fair Work Commission:

  • found Bupa did not have a valid reason for dismissal on the basis that she hadn’t been acting in a disrespectful manner when she sung, nor had she laughed at the deaths of residents. It was found that she had also been on a break during the footage and had not been required to attend to residents buzzers
  • were critical of Bupa’s disciplinary process, labelling them “unprofessional, discourteous and unfair” in finding that Ms Tavassoli was not given anything in writing, not shown the video footage and was not given a proper opportunity to respond.
  • held that the dismissal was unfair, harsh and unjust
  • ordered that Ms Tavassoli be reinstated and paid her base pay for November 2016 to July 2017

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

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Employment Law – Dismissal for Drug Test Refusal Invalid

Employment Law – Background

The Fair Work Commission has held that a company who dismissed an employee for refusing to provide a blood sample for a drug test had no valid reason to do so.

Employment Law – Facts

In essence:

  • Green was employed by Lincon Hire & Sales as a work platform operator
  • On 1 March 2017, Lincon received anonymous information that the employee and others were using drugs
  • Lincon’s drug and alcohol policy allows random drug testing, and asserts that refusal to partake will be considered a positive test, allowing for potential disciplinary action, including dismissal
  • On 6 March 2017 all employees underwent a drug test. Green provided a negative sample. However, Lincon received further anonymous messages claiming that Green and others had used substitute samples
  • On 7 March 2017, Green was informed he had to undergo a blood test because the previous tests had been “fudged”
  • Employees, including Green, felt that a blood test was an invasion of privacy and Green offered to do a urine test instead
  • Green failed to attend the blood test appointment organised by Lincon. A company representative informed Green that he would be dismissed if he failed to submit the test Green did not attend a second appointment
  • Lincon attempted to contact Green and the other employees, however one employee told them they were “sticking together” and would not have the blood test. Green was dismissed the same day

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • found that Lincon’s policy did not specify the type of testing used and had no provision about blood samples
  • found that Green was allowed to question the test method
  • looked at evidence which showed that the urine collection process for the first test was closely supervised, and the fact there was “no suggestion, the sample was beyond the applicable temperature range or creatinine level, which could suggest it was not genuine”
  • believed no satisfactory explanation was provided by Lincon as to why a blood test was required
  • established request made of Green to undertake a blood test was “not expressly permitted by the policy and was not a reasonable direction”
  • held that there was no valid reason for dismissal
  • awarded Green $8150 in compensation or the equivalent of 8 weeks’ pay including notice, plus a 20% reduction for Green’s misconduct in secretly recording phone conversations with management

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

Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales [2017] FWC 4916 (20 September 2017)

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

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Employment Law – Poor Response to Parental Leave

Employment Law – Background

A company was found to have taken adverse action against a pregnant employee and were ordered to pay $57,000 in compensation because they made her redundant just days before she took maternity leave.

Employment Law – Facts

In essence:

  • In 2015 the company decided to make several roles redundant as of November 12
  • However, they moved the redundancy date for a pregnant employee forward to two days before she took maternity leave
  • They believed moving the date was in her best interest
  • The employee claimed that she was dismissed because of her maternity leave

Employment Law – Decision

Judge Salvatore Vaster of the Federal Circuit Court:

  • found that the employer had taken adverse action against the employee
  • whilst noting the reasons for the redundancy were genuine, believed that moving the date of the employee’s redundancy amounted to changing her position to her prejudice, on the basis she did not have the chance to discuss the reasons for redundancy or contemplate other appropriate positions in the company
  • noted that “it was a clumsy attempt at trying to balance the perceived needs of the [employer] with the best interests of the [employee]”
  • ordered the employer pay $37,842 in compensation and an additional $20,000 as a pecuniary penalty

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

Power v BOC Pty Ltd & Ors (No.2) [2017] FCCA 2387 (3 October 2017)

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

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Employment Law – Court Dismisses Employee’s Misleading Conduct Claim

Employment Law – Background

The Federal Court has rejected a high earning employee’s claim that her employer engaged in misleading and deceptive conduct when the media company told her that her new role would be “long-term”.

Employment Law – Facts

In essence:

  • Nunn Media dismissed their head of strategy during her probationary period, alleging she was often late and the quality of her work did not meet their standards
  • However, the employee claimed that Nunn Media had engaged in misleading and deceptive conduct because when recruiting her they said if she was hired, it would be a “long-term” commitment
  • She claimed that she was dismissed because she made a complaint about a director’s work performance and took personal leave for illness
  • To support her claim she relied on an email from the managing director to another employee which said “WTF (what the f***) in response to the employee informing Nunn Media that she required time off to see a doctor.

Employment Law – Decision

The Federal Circuit Court:

  • found that the managing director’s “WTF” remark was not “evidence that the illness or injury of the [employee] or that she was taking leave was a reason for the termination of her employment”, it was merely an expression of exasperation.
  • found that by the time the managing director had made that remark, he had already taken steps to replace the employee.
  • stated that the employee had demonstrated unsatisfactory performance in three company projects and the “only reason” the managing director dismissed her was because he believed she was unable to perform in her role.
  • held that Nunn Media had not engaged in misleading and deceptive conduct
  • believed that the employee had left her previous job because she was about to become redundant and there was “significant financial incentive”, being a $55,000 a year salary increase, to take the role at Nunn Media.

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

Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336 (26 September 2017)

Employment Law – Tips for Employers

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

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Employment Law – Couple Working From Home Employees

Employment Law – Background

Putland v Royans Wagga Pty Limited is a clear example of sham contracting. In this case, the Federal Court of Australia decided that a husband and wife who performed largely home-based clerical work for one company were employees, not independent contractors.

Employment Law – Facts

In essence:

  • The couple were employed by a truck repair company, Royans Wagga Pty Ltd
  • The couple’s relationship with Royans began in 2005, when the wife worked in the business’ offices monitoring accidents
  • In 2008, the husband helped provide the 24 hour, 7 days a week ‘accident reporting service’ which was based either at their home or in a demountable shed on the business’ premises at various times
  • However in 2015, Royans outsourced the service to an independent call centre
  • Since 2007, any contract between the parties was described as “partly oral and partly in writing”. However, Royans argued that the couple had been independent contractors at all times

Employment Law – Decision:

The Federal Court of Australia:

  • determined that the couple were not independent contractors, and had an employment relationship with Royans
  • found that the couple were employed under the Clerks Award as ‘call centre principal customer contact specialists’ on a permanent, full-time basis and that Royans breached ss 45, s357 and 536 of the Fair Work Act
  • noted there were 10 “indices” supporting the view that the couple were employees. These included the exclusive nature of their service, Royans’ payment of phone lines and bills at their home, deferential emails to the company’s managing director, provision of scanners and telephone systems and the lack of true autonomy
  • suggested that the most significant indicator was the authority to control, as the managing director has extensive and far-reaching actual control over the work done and work was only done for Royans Wagga.
  • rejected indicators in favour of an independent contractor relationship, including the possession of ABNS, the issuing of tax invoices, the couple working from home and not wearing uniforms, on the basis that these features were “largely reflective of the [couple’s] subjective understanding of the position they were in according to the wishes of Royans”, rather than “supporting an objective assessment of the true nature of the relationship”
  • held that Royans must compensate the couple for underpayments, unpaid overtime, superannuation and leave. However amounts payable and penalties for sham contracting have not yet been determined.

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

Putland v Royans Wagga Pty Limited [2017] FCA 910 (9 August 2017)

Employment Law – Tips for Employers

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

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Employment Law – Client Information Posted on Facebook Confidential

Employment Law – Background

The Supreme Court has rejected a mortgage broker’s argument that the client list he took from his old employer and provided to a competitor was no longer confidential because his old employer posted some of their clients names on Facebook.

Employment Law – Facts

In essence:

  • the mortgage broker worked for Home Loan Experts as an independent contractor, however terminated his agreement with them in November 2016
  • he was still bound by restraint clauses which prevented him from distributing Home Loan Experts confidential information for 10 years and a non-solicit provision which forbade him from engaging in similar business activities for 18 months
  • soon after he started working for competitor, RAMS Financial Group Pty Ltd
  • whilst he was allowed to provide services to family and friends, he was not allowed to lure former clients to RAMS or contact them within the 18-month restriction period
  • the broker downloaded a list containing over 100 of Home Loan Expert’s clients’ names and addresses from their system to his computer and provided it to a RAMS receptionist so she could send Christmas cards
  • however he claimed that client list was not confidential as his old employer had publically posted some of their clients’ names of their Facebook Page

Employment Law – Decision

The NSW Supreme Court:

  • rejected the broker’s argument that the list was not confidential because it was posted on Facebook, as nothing but the clients’ names appeared on the posts and the privacy settings of the client  prevented people from accessing information beyond their Facebook name or making contact
  • was satisfied that the client list “have not entered the public domain so as to be stripped of the necessary quality of confidence”
  • found that the broker had breached his non-compete and confidentiality obligations when he approached and accepted approaches from up to nine Home Loan Expert clients’ whilst working for RAMS
  • determined that the sharing of the client list also breached his agreement with Home Loan Experts as it constituted confidential information because it contained “more intimate” details about clients’ assets and liabilities, and thus remained the intellectual property of Home Loan Experts
  • also found that the broker had breached his equitable duty of confidence by using and retaining its client list and accepting clients’ approaches
  • ordered an injunction restraining the broker from continuing to breach his obligations
  • ordered parties to agree on damages and account for the loss of opportunity that resulted from 8 clients switching to RAMS

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

Dargan Financial Pty Ltd ATF the Dargan Financial Discretionary Trust (trading under “Home Loan Experts”) v Nassif Isaac [2017] NSWSC 1077 (16 August 2017) [...]  READ MORE →

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Employment Law – Contempt ruling for director who deleted documents

Employment Law – Background

A former director at an aged care service provider has been found guilty of contempt of court after he deleted information relevant to a confidential information claim being brought against him the night before he was due for court.

Employment Law – Facts                          

In essence:

  • The director of technology and innovation at Mirus Australia resigned on July 13 2015, before the company terminated him on August 7 2015
  • He did not deny that he removed information from the client management system and uploaded it into a laptop after he left
  • Mirus became aware that he and another former employee were going to start up their own aged care business
  • On August 24, 26 and 28 Mirus’ lawyers sent the director letters stating he was in breach of the restraint clause in his employment contract and required that the confidential information, intellectual property and devices be returned for examination
  • On September 7 2015, Mirus initiated legal proceedings against the director
  • It was alleged the director deleted relevant documents on September 7 2015 – the night before he was due to attend court

Employment Law – Decision                                          

The NSW Supreme Court:

  • held that the director had interfered with the administration of justice when he destroyed evidence by deleting documents on his laptop
  • stated “there is no room for doubt, on the expert evidence, that between 6.33pm and 7.19pm on 7 September 2015 the SDELETE function was run on the Surface Pro [laptop]”
  • believed the director intentionally deleted the documents relevant to the litigation to prevent them for being located
  • found the director in contempt of court and required he pay the company’s indemnity costs

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

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 (11 August 2017)

 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
  • ensure that employment contracts contain well drafted restraint provisions which are appropriate to an employee’s employment
  • 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 [...]  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 →