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Employment Law – Contractor Ordered to Return Files

Employment Law – Background

In Blue Badge Insurance Australia Pty Ltd v Farnarn [2017], an employer won a court order for a contractor to return confidential files

Employment Law – Facts

In essence:

  • A contractor was engaged by Blue Badge Insurance Australia between April 2013 and November 2014 to provide compliance advice. However, the end of this arrangement was not “amicable”
  • Blue Badge reminded the contactor of her confidentiality obligations. These included that she was return or destroy all documents, electronic storage media and other materials relating to confidential business information
  • Blue Badge took court action after failed multiple attempts to recover the documents

Employment Law – Decision

The NSW Supreme Court found:  

  • It was likely the contractor still had the confidential documents in her possession
  • The contractor was ordered to deliver hard-copy documents, computers and other electronic storage devices for inspection or file an affidavit identifying each document, the manner in which they were held, the date in which she ceased to possess them and an explanation of why she no longer had the documents
  • Her unreasonable conduct, in “deliberately refusing to engage with” the Court warranted a costs order against her

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this principal / contractor dispute decision
  • seek the assistance of an employment lawyer to understand the impacts of this decision
  • 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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Employment Law – Dismissal of Injured Worker Not Discriminatory

Employment Law – Background

In Hilditch v AHG Services (NSW) Trading As Lansvale Holden [2017], the Federal Court rejected a fitter’s claim that his previous employer had breached disability discrimination legislation when they fired him without considering reasonable adjustments to accommodate his workplace injury.

Employment Law – Facts

In essence:

  • In 2009 a fitter at AHG Services injured a finger on his left hand
  • After surgery, he gradually returned to his pre-injury duties
  • In 2012 he was dismissed after providing medical certificates which confirmed he couldn’t perform his duties adequately and was only fit for office work
  • The worker sought damages for lost income and non-economic loss. He argued that AGHS had breached the Disability Discrimination Act 1992 (Cth) by dismissing him without contemplating reasonable adjustments or reassigning him to another role

Employment Law – Decision

The Federal Court found:

  • Prior to January 2011, there was no reason for AHGS to consider making reasonable adjustments to accommodate the employee’s injury because he was performing his role and failed to provide any medical certificates to suggest he could not perform his role
  • In rejecting the worker’s arguments, the court cited the decision in Watts v Australian Postal Corporation, finding that AGHS only had to consider reasonable adjustments for the position which the worker had occupied before the injury
  • This was not possible in this case, as the medical certificates he provided suggested he was unfit to perform “fitter” duties and no adjustments could assist him

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  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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Employment Law – Drug and Alcohol Testing

Employment Law – Background

Drug and Alcohol Testing should be introduced with consultation in a company policy. The rationale is to prevent or rehab rather than discipline employees. However, employers need to consider the reasonableness of implementing a policy. In addition, employers also need to consider whether it breaches privacy law.

Employment Law – Issues to Consider

In essence:

  • Drug and alcohol testing should be introduced on work, health and safety grounds
  • this is because industrial tribunals have generally determined that testing is an intrusion of individual privacy. Therefore, it can only be justified on work, health and safety grounds
  • an employer has no control over what employees do in their own leisure time. Although conduct that may put an a person at risk or damage the company’s business and reputation can warrant control measures
  • because such a policy is to be considered a workplace health and safety matter, consultation with all staff is required
  • the policy is especially relevant in medium to high risk industries for instance manufacturing and construction
  • furthermore, some industries will require such a policy under the relevant workplace health and safety law
  • employers are obligated to attempt to eliminate the risk for employees impaired by drugs or alcohol. Conversely, employees may argue an intrusion into their personal lives
  • failure to educate employees about the terms of the drug and alcohol policy can result in disputes in the workplace
  • furthermore, the lack of a company drug and alcohol policy can also have negative implications for employers in unfair dismissal claims

Employment Law – Company Policy

A company policy on drug and alcohol testing should:

  • aim to educate employees about the expected standards
  • explain to employees their responsibilities
  • stipulate the consequences of a breach
  • refer to the types of substances which can cause impairment. Notably, alcohol, cannabis, methamphetamines including cocaine and ecstasy, and opiods such as heroin
  • also consider referring to legal and prescription drugs such as sleeping pills because they also cause impairment

Employment Law – Method of Testing

In essence:

  • the two most common methods of testing for illicit drugs are saliva and urine testing
  • oral testing is more focussed on acute impairment
  • urine testing is more likely to uncover drug use patterns
  • the Full Bench of the (then) Fair Work Australia concluded that oral testing should therefore be adopted for a drug and alcohol policy
  • urine testing is appropriate in certain circumstances

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • seek the assistance of an employment lawyer to prepare an appropriate drug and alcohol policy
  • communicate to employees the drug and alcohol policy to employees
  • consult with all employees the implementation of the drug and alcohol policy
  • provide ongoing training and education to employees
  • speak to an employment lawyer to determine the appropriate method of testing for the workplace
  • consult an employment lawyer to consider the relevant privacy legislation. Consideration should be in conjunction with the company’s privacy policy
  • prepare new employment law policies as required
  • eliminate the risk of employees coming to work impaired by drugs or alcohol
  • draft changes to current drug and alcohol policy with the assistance of an employment lawyer
  • finally, engage an employment lawyer to consider relevant workplace health and safety law for certain industries

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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Employment Law – Protecting Company Connections

Employment Law – Background

Employers can take pre-employment steps to safeguard intellectual and commercial property such as company information or Linkedin connections. Furthermore, HR needs to establish a compliance framework for employee conduct, expectations and obligations.

In addition, an ex-employee’s Linkedin connections are ‘unlikely’ to be defined as trade secrets belonging to the former employer.

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • insert key restraint of trade provisions. These should explicitly refer to the use of social media connections
  • include restrictive terms for the post-employment period. For instance, restricting the use of social media to publish or share content
  • obtain a list of the employee’s current social media connections
  • include terms which provide that connections gained during the course of employment are the property of the employer
  • creating appropriate social media policies and guidelines. These should cover the course of employment and post-employment.
  • train employees to ensure understanding of obligations
  • draft new/changes to employment contracts with the assistance of an employment lawyer
  • draft new/changes to employment law policies with the assistance of an employment lawyer
  • speak to an employment lawyer about what company information can be protected
  • ensure employment contracts and employment law policies comply with relevant employment laws, Fair Work Commission decisions, common law employment law principles and contractual obligations

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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Employment Law – New Employer Liable in Confidential Information Case

Employment Law – Background

The following is a recent example of where a new employer was stung for the wrongs a new employee committed against their former employer …

Employment Law – The Case

In essence:

  • Lifeplan and Foresters were competitors in the business of funds management and the provision of investment products, principally for the purpose of funeral plans
  • whilst employed by Lifeplan, a manager emailed confidential Lifeplan documents to his personal email address and used these documents to prepare a business plan which he then presented to Foresters with the assistance of another manager
  • at the same time, both managers solicited the business of several funeral companies and service providers in order to secure business for Foresters and themselves
  • the managers used Lifeplan contracts, brochures and other marketing materials to prepare similar documents for themselves, and utilised Lifeplan’s printing company to generate this material
  • Lifeplan commenced proceedings against the managers and Foresters (who by this time employed the managers)

Employment Law – The Decision

The court on appeal held:

  • there could be “no doubt that the board of Foresters was actually aware, had actual knowledge, of the taking and using in breach of duty of confidential information”
  • the managers, “with the full knowledge of Foresters, dishonestly breached their duty by, amongst other things utilising confidential information to prepare a business plan for the consideration of the board of Foresters”
  • the Board of Foresters actively used the business plan in its decision-making process and, subsequently, to monitor the performance of the joint venture
  • the business plan disclosed “detailed information, some of which expressly and plainly came from Lifeplan’s records… No honest and reasonable person, not shutting his or her eyes to the obvious, could conclude other than that the document was based on Lifeplan’s confidential information brought by current employees of Lifeplan”

Employment Law – The Sting

Foresters’ knowledge and even participation in the manager’s breaches (contrary to the manager’s statutory and fiduciary duties under the Corporations Act), rendered it accessorily liable for the breaches pursuant to section 79 of that legislation. [...]  READ MORE →

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Employment Law – Recommendations for Employment Entitlements

Employment Law – Background

This article provides a consideration of the pros and cons of including employment entitlements in the following forms:

  • HR policy
  • Enterprise agreement
  • terms in a separate employment contract

Employment Law – Enterprise Agreements

Employers should actively encourage diversity and inclusion by using ‘inclusive’ language in the Enterprise Agreement. It should include:

  • Paid parental leave for both primary and secondary carers (this language includes same-sex couples)
  • A flexibility term
  • A consulation term
  • A disputes, grievance handling provision
  • Rates of pay
  • Provisions that enhance productivity improvement and flexibility.

Employment Law – HR policy versus Enterprise Agreement

Pros of using a HR policy include:

  • the benefit of non-binding application compared to a binding provision for the life of the Enterprise Agreement
  • less legal exposure in policy statements as breaches of enterprise agreements can incur fines or legal action
  • HR policies can be amended from time to time
  • a policy statement adds details and implementation procedures to the core entitlements contained in the Enterprise Agreement

Employment Law – Contract Provisions

Pros of putting provisions in individual contracts include:

  • flexibility to accommodate personal circumstances compared to a collective enterprise agreement
  • opportunity to trial new arrangements such as flexible working arrangements

Cons include:

  • provisions are difficult to remove later on
  • offering different conditions to different employees may increase the likelihood of discrimination complaints

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • engage an employment lawyer to ensure consistency with all employment documents containing employment entitlements
  • aim to include every employee demographic group to avoid criticism
  • use specific advertisements for employment to target specific demographic groups
  • ensure management are aware of the implications of a policy
  • educate staff particularly managers who are responsible for eligibility and implementation
  • train managers on handling ‘sensitive’ conversations with ‘minority’ employees
  • provide supporting resources such as toolkits and access to external experts
  • consult an employment lawyer about whether to adopt a policy, enterprise agreement or the insertion of provisions in a separate contract
  • speak to an employment lawyers about the cost-benefit analysis of each approach
  • prepare new employment law policies as required
  • draft new/changes to employment contracts with the assistance of an employment lawyer
  • draft new/changes to employment law policies with the assistance of 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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Employment Law – Workplace Investigation Documents

Employment Law – Background

In ‘LC’ and Australia Post the Information Commissioner has upheld an employer’s right to deny a former employee access to workplace investigation witness statements in order to protect the integrity of its complaints process.

Employment Law – Facts

In essence:

  • the former Australia Post employee requested access to documents after a HR practitioner informed him that two managers were facing discipline in their employment as a result of being heard making “derogatory” comments about him
  • although Australia Post initially denied the request, after reviewing its decision they granted him access to four workplace documents in full and two in part
  • however, they refused to provide him access to witness statements, “warning counselling documents” and an email chain
  • in refusing access to these workplace documents, they relied on the exemption under s47E(c) of the Freedom of Information Act (Act), which allows access to documents to be denied if such access would have a “substantial adverse effect on the management or assessment of personnel”
  • the employee applied to the Information Commissioner to gain access to the remaining workplace documents

Employment Law – Decision

The Information Commissioner found:

  • the documents qualified for the exemption under the Act
  • this was because the witness statements and “warning counselling documents” would “directly address the substance of the workplace complaint”
  • thus, releasing them would make witnesses reluctant to come forward in the future for fear of facing “backlash” from others involved
  • consequently, this would have a “substantial adverse effect” on the conduct of HR’s enquiries and the employer’s management function as a whole
  • the email chain was also exempt as it related to witness statements
  • there was a public interest in “protecting the integrity and robustness of Australia Post’s code of conduct complaints processes” and similar processes in other government agencies

 

Employment Law – Tips for Employers

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

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Employment Law – Dismissal of employee for pornographic emails

Employment Law – Background

In B v Mid North Coast Local Health District, the NSW Industrial Commission found that despite a woman’s sacking for amassing thousands of sexually explicit emails on her work computer being valid, the dismissal was still harsh.

Employment Law – Facts

In essence:

  • the woman was working with Mid North Coast Local Health District as an assistant to the district manager of Mental Health Services
  • she was found to have received, stored and sent a large amount of emails which were “pornographic, graphic (violence) and generally inappropriate in nature”
  • she was sacked for inappropriately using the workplace email system, breach of the code of conduct and the employer’s employment law communications policy and serious misconduct
  • she argued that her employer’s email system should have had a filtering system in place to prevent inappropriate emails
  • it was also argued that she was unaware of the employer’s employment law communications policy

 

Employment Law – Decision

The NSW Industrial Commission found:

  • the employer had a valid reason to dismiss the woman
  • the workplace law policies made it clear that sending and receiving inappropriate emails was strictly prohibited. This was clear by requiring users to accept the employer’s employment law policy through ticking a pop-up box when they logged in
  • despite its validity, the employee’s dismissal was harsh under workplace laws
  • consideration was given to mitigating factors such as her difficulty “in obtaining alternative employment … her personal, family and dire financial circumstances”
  • the fact that she had not been previously warned for misconduct was also taken into account
  • reinstatement was impracticable considering “the gravity of the misconduct” and the fact that the employment relationship had irretrievably broken down
  • the woman was to be compensated eight weeks pay

Employment Law – Tips for Employers

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

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Employment Law – Procedural Fairness and Employee Dismissals

Employment Law Background
The Fair Work Commission’s decision in DL v East Arnhem Regional Council [2017] highlights the importance of employers affording procedural fairness to employees in dismissal cases.

Facts
DL was a Municipal Services Supervisor for a Council. In this role, he was responsible for supervising two or three staff. At least two workers had lost their driving license

• In June 2016, one of the workers was driving a Council rubbish truck, when an incident caused the bumper of truck to be bent
• In August 2016, DL stated in an Accident & Incident Report that he was driving the truck. The form stated that by signing the form, the signatory was accepting that the information in the form was “true and correct”. DL signed this form
• A few weeks later, in September 2016, the Council alleged that DL stated in a tele-conference that “recently we had an incident where [we] knew that we had no licensed drivers but decided anyway to use the staff to operate the vehicle. The driver bent the bumper then I had to jump in and take the blame”
• In late August 2016, after DL had signed the form but before he admitted to not being the driver, DL had received a first and final warning in regard to alleged unsatisfactory performance, a lack of care in vehicle cleanliness, paperwork and maintenance
• DL was dismissed on the basis that he breached the Council’s code of conduct by falsifying a critical incident report, failing to comply with policies and procedures, not being truthful, not acting with integrity and not conducting himself in a proper manner [...]  READ MORE →

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Employment Contracts and Procedural Fairness

Employment Law Background

The Fair Work Commission’s decision in DL v East Arnhem Regional Council [2017] highlights the importance of employers affording procedural fairness to employees in dismissal cases. Article Link: http://Article Link: https://workplaceinfo.com.au/termination/unfair-dismissal/cases/supervisor-unfairly-dismissed-while-on-final-warning-and-after-falsifying-accident-report#.WPVvOfmGNaQ

Facts

DL was a Municipal Services Supervisor for a Council. In this role, he was responsible for supervising two or three staff. At least two workers had lost their driving license [...]  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 →