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The ‘silly season’

With a busy month ahead for many businesses holding work social functions and Christmas parties it is a good time to consider your workplace policies and practices and how they apply to social functions and behaviour that is outside the usual office or work space.

Social Functions

Employee behaviour at work social functions or Christmas parties is subject to workplace policies and must also meet certain standards. A social functions policy may, for example, cover alcohol consumption, appropriate conduct and gift-giving guidelines. It may be useful at this time of year to remind employees what policies are in place, when these apply and that in some instances they cover behaviour outside of the office.

On a practical or common-sense note, planning ahead will give you an edge. Prior to any work function consider possible risks or issues and manage them ahead of time. For example, do you need to arrange transport or taxi vouchers for employees to get home after a work function.

Good workplace policies offer many benefits to

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Can you be sacked for your Facebook comments?

In today’s society, employees are connected in many ways. Not only do they work together but if they are friends on Facebook or connected via LinkedIn, then activities outside of business hours are also visible and can be shared. Therefore, the boundaries between work and private life have become increasingly blurred. Employees should keep in mind how their posts, comments, likes or tweets could affect the relationship they share with their co-workers and potentially negatively impact their employer’s reputation.

Just because an employee is at home when the conduct occurs doesn’t mean action cannot be taken. Claims of bullying and harassment via social media are on the rise and it’s not an issue the FWC takes lightly. In some situations, a person’s employment may be in jeopardy where there is a sufficient connection between alleged misconduct over social media and their employment.

In a recent case heard by the FWC[1], it was found that the decision to sack a worker for making disparaging comments about his supervisor on

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Restraint of Trade: How far is too far?

Employers commonly use restraint of trade clauses in employment contracts to prevent their employees from jumping ship and working for a competitor when their employment ends. In doing so, employers are seeking to protect their business as well as their confidential information, trade secrets and customer, staff and supplier connections. Seems reasonable doesn’t it?

While confidentiality and non-solicitation clauses are generally found to be reasonable and enforceable,the challenge for employers is to ensure their restraint of trade clauses are not struck out for going beyond what is necessary to protect their legitimate business interests.

In a recent case before the Victorian Supreme Court[1], Just Group Ltd (JGL), a retailer company which includes Just Jeans, Peter Alexander and Portman’s, alleged their CFO, who was employed with them for just 6 months, breached her restraint of trade and confidentiality clauses when she accepted a job offer from rival Cotton On. Justice McDonald concluded that the restraints were too broad and went beyond what was reasonable to protect the company’s legitimate

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When swearing amounts to verbal abuse

Employees should choose their words carefully; whilst ‘colourful’ language may be tolerated at times, profane and insulting language towards another employee usually isn’t.

In two recent cases, the FWC has shed light on when an employer may be justified in sacking an employee for verbally abusing co-workers. However, employers are cautioned to consider all the factors surrounding the employee’s conduct when deciding whether instant dismissal is warranted.

In the first case[1], the dismissal of a sales consultant at a car dealership was upheld after he verbally abused the dealership’s stock controller over the phone. The employee and his wife (also an employee) were on a rostered day off when his wife received a call from the stock controller informing her about an inquiry from a contractor.

Despite the fact that the inquiry was quickly resolved, the employee called back shortly afterwards and began to abuse the stock controller using words such as “don’t f***ing call us ever” and “we are busy”. She tried to explain to the employee

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A tougher FWO to protect Australia’s vulnerable workers

The Turnbull Government is following through with its election promise to deliver greater protection to Australia’s vulnerable workers by strengthening the powers of the Fair Work Ombudsman.

In early 2017, new laws will be introduced that will enhance the FWO’s examination powers and expressly prohibit employers from providing false and misleading information to Fair Work Inspectors. The Government also plans to increase the penalties (up to ten times the current maximum) that apply to employers who underpay workers or who fail to keep sufficient employment records.  The intention is to deter businesses from engaging in practises that exploit vulnerable workers and to equal the playing field for compliant businesses doing the right thing.

In addition, a migrant workers taskforce has been established to improve employee protections for overseas workers. One of the key functions of the taskforce is to monitor 7-Eleven’s progress in rectifying their breaches which included the significant underpayment of wages, the manipulation of the payroll system and the doctoring of false employment records. The taskforce, chaired by

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A very flawed approach to the Dismissal Process

It’s a recurring issue that many employers seem to struggle with: getting the dismissal process right. It appears simple enough- if an employer has a valid reason for a dismissal and the process is handled with procedural fairness, then there should be no reason for an unfair dismissal claim. But why do so many employers get it wrong?

In a recent FWC[1] case it was held that an employee was unfairly dismissed despite his behavioural, performance and conduct issues which included the downloading and storing of pornographic material on his company phone and laptop. Unfortunately, the disciplinary process and the employee’s dismissal were riddled with errors which resulted in a termination that was found to be harsh, unjust and unreasonable.

Smarter Insurance Brokers, a small business, had mistakenly relied upon a clause in the employee’s contract that it believed meant payment in lieu of notice would relieve it of the obligation to provide a substantive reason for dismissal. Consequently the employer dismissed the employee and paid out the notice period

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The importance of drafting clear Employment Contracts

A recent case heard by the FWC[1] highlights the problems that follow when employment contracts are poorly drafted. Next Residential Pty Ltd, a building company in Perth, attempted to trade off award provisions by paying a higher annualised salary but got itself into legal trouble when it failed to identify the applicable award or specific provisions it ousted.

A former employee claimed that her employer owed her $29,000 for overtime and lunch breaks worked as directed. However, her employer insisted that she had no entitlement to this as she was paid an annualised salary in accordance with her employment contract. Furthermore, her employer denied that it directed the employee to work overtime or through her lunchbreak and maintained that any additional hours worked by the employee were set off against early finishes, late starts and half days worked.

The employee’s contract stated that her salary was "inclusive of any award provisions/entitlement that may be payable under an award". The FWC found that the contract failed to identify the applicable

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Effective drug and alcohol polices cover drug testing best practice

An employee who turns up to work under the influence of drugs or alcohol creates a risk to themselves and to others that can range from minor to life-threatening.  Not only do they put themselves and their co-workers in danger, but the business itself can suffer damage to its reputation.

Employers have an obligation to maintain the health, safety and welfare of all employees. They also want to ensure their employees uphold the integrity expected of them. Implementing a drug and alcohol policy can go a long way to eliminating the hazards that drug and alcohol use have on the workplace, and best practice is that these policies should also include guidelines as to how and when drug and alcohol testing will be conducted.

In a recent case heard by the FWC[1], a Dorevitch Pathology employee was asked to undergo a drug test during a meeting, after she was accused of using heroin by an ‘anonymous source’ (later identified as her disgruntled neighbour). The employee questioned the request,

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Returning to work after parental leave

In a recent case heard before the Federal Circuit Court[1], Roy Morgan Research was fined $52,000 for denying an employee’s request for flexible hours following her return from maternity leave, and then failing to return the employee to her pre-parental leave position.

While the company had undergone a massive restructure (which led to large scale redundancies), Roy Morgan had created an expectation that the employee would be redeployed to the Research Centre. Instead, she was sacked on account of redundancy. To make matters worse, the court found that the person covering her maternity leave was transferred into the position that would have been suitable for her. Importantly, the court took into account the fact that the employee was still on maternity leave with a young baby and now unemployed.

There is no doubt that balancing work and family life is tough enough as it is. Parents transitioning back into the workplace should be reassured knowing that, under the ‘return to work guarantee’, they have the right to come

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Showing your Employees Compassion and Support

The news of a family member passing away or sustaining a critical injury or illness is incredibly saddening and employers understand that their workers need to be with their loved ones during these difficult times. However employers also have a business to run so how do they strike a balance?

Under the NES, all employees (including casuals) are entitled to 2 days compassionate leave for each occasion when an immediate family or household member dies or suffers a life threatening illness or injury. This period can be taken as a single two day period, two separate one day periods or any separate periods that the employee and employer agree. Permanent employees are entitled to paid compassionate leave and casuals are entitled to unpaid compassionate leave. Employees are to give notice of the taking of leave and must provide evidence to substantiate the leave if requested by their employer.

In a recent case heard by the FWC[1], a sales manager’s request for compassionate leave to attend her grandfather’s memorial

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Calculating Redundancy Pay: Do previous casual hours count?

A full bench of the FWC has handed down a landmark decision which has changed the previously accepted interpretation of ‘service’ under the FWA and, in effect, turned upside-down the way in which redundancy payments are usually calculated.

Following the decision in AMWU v Donau[1], a permanent employee’s initial period of regular and systematic casual employment with the same employer will now count towards their period of continuous service used to calculate redundancy pay. Whilst many employees will be rejoicing with this news, the decision holds considerable and far-reaching ramifications for employers who will have to pay the price.

The case involved Donau, a Newcastle engineering and ship-building company, who commenced a large scale redundancy process. Initially, the company did not include prior continuous service by casuals in their redundancy pay calculations. The AMWU argued that this was in breach of their enterprise agreement, which specified that redundancy pay is to be calculated according to periods of continuous employment. The dispute then turned its discussion towards the definition of

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Termination for serious misconduct

An employer is permitted to instantly dismiss an employee when their actions amount to serious and willful misconduct. Serious misconduct can severely damage the employment relationship and indicate that the employee no longer wishes to be bound by the employment contract. Typically, this kind of conduct includes theft, fraud, assault, intoxication at work and actions that put other employees and the business itself at risk.

However, the tricky part for employers is knowing when an employee’s actions constitute serious misconduct, and when they don’t. Employers will need to assess the seriousness of the conduct in the circumstances and determine whether the punishment fits the crime. Employers also need to ensure that in all situations they follow a reasonable disciplinary process. Otherwise, employers run the risk that any dismissal will be harsh, unjust and unreasonable.  

The importance of procedural fairness has been a hot topic as of late and even when facing misconduct, employers are urged to follow a fair and reasonable dismissal process. In a recent FWC[1] case,

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Valid Reason + Procedural Fairness = Termination done right

Far too often we hear of cases where an employer has every reason for letting someone go but they didn’t get the process quite right and now they are defending unfair dismissal claims. Even if there is a valid reason for the dismissal, it will all be for nothing if the process is handled poorly.

In a recent FWC[1] decision, a longstanding BMW employee received $25,000 after it was found he was denied procedural fairness when sacked for serious misconduct. The employee was dismissed for breaching the company’s internet usage policy when he was caught accessing pornographic and lifestyle websites whilst at work, not once but twice. The financial controller was issued with his first and final warning when his colleague exposed that he was viewing pornographic websites. Following further investigation, the IT department found that he had once again breached the internet usage policy after ‘fashion and lifestyle’ swimsuit websites had popped up in his web history.

Two weeks later, the employee was called into a surprise meeting

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Changes to modern award provisions for annual leave

As part of their their four- yearly review of modern awards, the Fair Work Commission (FWC) has made changes to a number of awards for annual leave entitlements and the way that annual leave is to be taken. The changes are designed to provide employers with flexibility in managing leave arrangements and prevent cash flow issues with excessive accumulated annual leave. The changes specifically deal with managing excessive accrual of annual leave, payment of annual leave, cashing out annual leave and taking annual leave in advance. Most of the changes took effect as of 29 July 2016.

Excessive Annual Leave

Excessive Annual leave is defined as more than 8 weeks' paid annual leave (10 weeks for shift workers). The new provisions will allow employers to direct their employees with excessive annual leave to take leave, provided that:

  • Employers must request a meeting with employees beforehand and try to reach an agreement on reduce or eliminate excessive accrual of annual leave.
  • The remaining annual leave entitlement is not less than 6
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Tips for managing underperforming staff

If you’re an employer who is concerned about the underperformance of your employees, there is a huge amount of guidance that you can turn to when in doubt. The techniques of a Chinese motivational trainer who beat eight underperforming employees with a stick, shaved the heads of the men and who cut the hair of the women is definitely not the way to go. On a training weekend, the lowest ranking staff were bought up on stage and publically humiliated when the trainer demanded explanations for their underperformance. He then continued to beat the staff, a training model he says he has “explored for many years”. The whole event was captured on video and circulated on social media worldwide, drawing heavy attention and criticism. One user commented “Since when does beating employees become a way of raising performance?’, and we couldn’t agree more.

We are frequently asked how underperformance should be managed or disciplined. Often, it’s not as simple as having a quick one-off discussion but requires employers to articulate

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When can a Casual worker be protected from Unfair Dismissal?

What is Casual Employment?

The distinction between full time, part time and casual employees is not always as straight forward as it might appear.

Generally speaking, casual employees work irregular hours with no guarantee of ongoing work, are hired on an informal basis and are not entitled to paid leave, termination notice or redundancy benefits. However casual workers enjoy a higher hourly pay rate to compensate for their uncertain working arrangement, have the freedom to accept or decline work as it comes and can end their employment without notice. For employers, there are distinct advantages for hiring casual workers including the flexibility to increase staff during busy periods and the right to terminate without notice.

Protection from Unfair Dismissal

There is a common misunderstanding that casual workers cannot file for unfair dismissal; however this is not always the case. 

Employers are advised to monitor the employment relationship closely and be aware of whether these workers are being treated like permanent employees. Simply labelling and paying a worker under a ‘casual’

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Quitting, absent, or just angry?

A frustrated, annoyed or angered worker may walk off the job and an employer may deem that as the employee’s intention to end their employment. Or perhaps an employee continues to be absent after an authorized period of leave and then becomes completely unresponsive. Is it safe to assume that these workers have given up on their job and abandoned their employment?

Generally speaking, abandonment occurs when an employee clearly, through their actions or lack of action, indicates that they do not wish to continue at work. What is essential is a lack of communication from the employee detailing the reason for their absence.  However, abandonment is not lightly inferred and employers are reminded they must consider all objective facts and correctly follow procedure before quickly jumping to the conclusion that their employee has left their job permanently.  

In a recent case heard before the FWC[1], it was accepted that an angered employee had acted to end his employment on his own volition. During an altercation with

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Finding the right employee for your company is not always easy. Sometimes it is tempting to make promises during the recruitment process in the hope that new employees will prefer your company over others, but employers need to tread carefully; false, misleading or deceptive conduct designed to induce someone to take a job is unlawful under Australian Consumer Law.

Under s 31 of the Competition Consumer Act, a person must not, when offering employment, engage in conduct that is liable to mislead on the availability, nature, terms or the conditions of the employment. Common examples of misleading conduct have involved employers making representations or statements regarding remuneration, career progression, non-financial benefits, the company’s financial position and the length of the employment period.

It is necessary to establish that the employee 

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A recent case heard before the FWC[1] should encourage employers providing internships to consider whether their programs are being carried out lawfully.

AMIG, A Chinese Media Company, received a huge $270,000 fine for failing to pay the basic minimum entitlements to two workers, including an intern who was required to complete 180 hours of unpaid work. During this time, the intern was expected to carry out productive work expected of a normal employee but without any pay cheque in return. It was found that AMIG mischaracterised the employment relationship and exploited the university student in order to avoid paying proper wages.

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It has been accepted that employers may negotiate with their staff to take pay cuts during difficult financial times as an alternative to redundancies. However, in a recent case heard by the FWC, it was found that a Wellpark Holdings employee was unfairly dismissed for refusing to accept a 10% pay cut. The company was experiencing a significant cash flow problem and was wary that cutting jobs may cause their employees to struggle in a tight labor market.

Whilst the company had discussed the option of a wage cut with employees, one employee was not consulted as he was on leave. Upon his return, he was given a letter advising that he had until the next day to agree to a 10% wage reduction or face termination. The FWC found that this was not an appropriate way to approach the issue and the employee should have received a full explanation of the company’s financial troubles, rather than being forced to accept the pay cut.

An employer’s ability to impose pay cuts

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