BlandsLaw - Articles - Page 12
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A recent decision of Fair Work Australia should highlight to employers the importance of having a social media policy in the workplace.

The background to the case is that a Melbourne hair-dresser who, amongst other reasons, was dismissed after talking disparagingly about her employer on Facebook has successfully argued that her termination constitutes an unfair dismissal. The hairdresser was successful on arguments other than the Facebook issue, but the case still raises important issues about the use of social media by employees. Read the full article here

Constructive dismissal

Constructive dismissal occurs when the conduct of an employer causes an employee to resign. The employer may expressly ask the employee to resign or the employer’s conduct may leave the employee feeling that there is no other choice but to resign. An employer may believe that resignation is mutual however if an employee is able to demonstrate that the employer’s behavior was unfair or unlawful in procuring a resignation, a constructive dismissal claim may pursue as highlighted in the recent decision of John Steven Little v Petfood Processors (WA) Pty Ltd. Read the full article here.

Historic Legislation meets Senate approval. Paid Parental Leave Entitlements are here!

 

Australia’s first national paid parental leave scheme has officially passed the vote of the Senate which from next year, will provide 18 weeks parental leave paid at the minimum wage.

Read the full article here

The Social Media Phenomenon – Are You Prepared?

With Twitter growing at a phenomenal rate, Facebook networking larger than life, LinkedIn creating a recruiter’s goldmine and ‘blogging’ not an obscene word but widely understood logging resource, social media is quickly emerging into the communication mainstream. Click here to read the full article

With effect from 1 January 2010, the redundancy provisions in the Fair Work Act, 2009 (Cth) came into operation the result of employers and employees in the national workplace system being covered by the National Employment Standards (NES). The new redundancy provisions bestow a positive obligation on employers to fully explore opportunities within an employer’s wider corporate structure to redeploy. For employers, proactively pursuing and proposing alternate employment opportunities before redundancy termination, will minimise the risk of unfair dismissal or adverse action litigation being brought by employees.

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Various parts of the Fair Work Act came into effect on 1 July 2009. Among them are the provisions enacting the new 'adverse action' jurisdiction of Fair Work Australia (FWA).

The ‘adverse action’ provisions under the new industrial relations legislation will compel employers to be more cautious when making decisions that affect employees.

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On 1 January 2010 the modern award system provided for in the Fair Work Act 2009 will come into effect. It is possible that awards will cover employees who were previously regarded as ‘award free’, even though this was not the stated intention of the modern award process. Employers will need to determine which employees will be covered by which modern awards or face exposure to penalties of up to $33,000 per breach. Click here to read more

Treasurer, Wayne Swan, and Minister for Superannuation and Corporate Law, Senator Nick Sherry, have announced new laws regulating executive termination payments.

Under the proposed new laws, termination benefits for directors and certain senior executive employees exceeding one year’s average base salary will require shareholder approval.

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In a ruling that serves as a warning to employers, the Federal Magistrates Court rejected an employer's contention that pre-employment negotiations were not binding.

In the case of McRae v Watson Wyatt Australia Pty Ltd, Federal Magistrate Raphael found that a redundancy provision that was discussed in pre-employment negotiations formed part of the employee’s contract.

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Circumstances may arise in which the employment of your employees need to be terminated. Termination attracts various legal obligations of which employers ought to be mindful in order to avoid or minimise litigious repercussions.

From 1 July next year, the Federal Government's changes to the Work Choices unfair dismissal laws will take effect, which will in turn alter the current legislative termination landscape.

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REMINDER: WorkChoices record keeping requirements take effect 27 March 2007

The new record keeping requirements for employers come into effect on 27th March 2007.

Employers will need to ensure that compliant records are kept relating to:

  • Employer and Employee details
  • Hours worked
  • Pay records
  • Leave
  • Superannuation

Employers may be subject to inspections from the Office of Workplaces Services and heavy fines may result from non-compliance.

For a free "health check" consultation on your compliance please contact Andrew Bland on +61 2 9006 1675 or 0401 244 418.

When does banter between co-workers cross the line?

Workplace culture can heavily influence the way co-workers interact with one another. The trouble is, when the culture is laid back, it becomes all too easy for the lines of acceptable and inappropriate conduct to become blurred. Ultimately, this can lead to a fall out between colleagues and can contribute to an undesirable (and potentially unhealthy or unsafe) working environment. In these situations, employers must uphold their obligations and take reasonable disciplinary action where necessary.

In a recent case before the FWC[1], a mineworker was dismissed for making a number of derogatory Islamophobic and sexist comments over a two way radio which were heard by over 100 employees. The employee argued that the use of the radio was an attempt to avoid fatigue and the channel he used was commonly referred to as the ‘chat channel’. He also maintained that he had not been trained in the company policies regarding unacceptable conduct, and his behavior was not inappropriate as he had heard similar comments over the radio from

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Workplace investigations can be an important and useful tool. When used in the right situations and conducted appropriately a workplace investigation can resolve a range of issues including bullying and harassment complaints. A recent case, however, has highlighted the ramifications that may occur when an investigation is not conducted properly.

In Romero v Farstad Shipping (Indian Pacific) Pty Ltd[1] a shipping officer sent an email to her superiors alleging bullying by her ship’s captain during a 12 day sea voyage. In addition to Romero’s bullying allegations, the captain separately raised issues of competency in relation to Romero.

The employer, Farstad, proceeded to investigate the issues although failed to follow their own internal policy and the processes outlined within in. Specifically, Romero’s bullying complaint was investigated as a formal complaint although it had not been formally lodged as a complaint and this had not been the intention of Romero’s email. Added to this, the captain was interviewed before Romero (the complainant) about the alleged bullying and the issues of competency

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