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Previously, we have discussed the notion of whether a company’s policies and procedures may be legally binding. In that article, we highlighted a recent decision in the Federal Court which outlined the importance of the content of company policy documents provided to employees and the need to ensure compliance with the processes and standards set out in such policy documents.

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Recently, there have been a few articles in the national news covering the issue of employees who have been sacked via text message. As an employment law firm, we have also witnessed the use of email and other electronic means to terminate employees.

In the recent text message case, Fair Work Australia (FWA) had to decide whether an employee was unfairly dismissed when a retail shop owner, Ms Sarkis of Modestie Boutique in Liverpool , summarily dismissed her employee, Sedina Sokolovic by sending her a text message which read:

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The procedural fairness requirements of the Fair Work Act, 2009 (Act) together with the recent line of decisions of Fair Work Australia (FWA), impose on employers an obligation to act carefully and consistently when disciplining and managing employees. This article addresses some practical strategies for effective performance management in the workplace.

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During times of low unemployment, and critical shortages of workers in some industries, it is not uncommon for employers to find themselves in the situation where they are selling themselves and their business, to potential employees. Likewise for recruiters, who will work hard to secure the best candidates for their clients, and in doing so will be making certain representations to those candidates about the overall performance and potential of the company.

Many employers and recruiters may find themselves in a situation where they and other business are vying for the services of a particular individual. In many of these instances, it is not just the salary that a potential employee is concerned with, but other less measurable factors such as career prospects, company growth and gaining increased credibility and exposure in their particular fields. The summary of a court ruling below illustrates the importance of taking care when making representations about these particular issues, to potential employees.

In the recent case of Moss v Lowe Hunt & Partners[2010]

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From 1 July 2011 the government will pay the Parental Leave benefit directly to employers, who will then be required to administer the payment to the employee. Employers need to ensure their pay systems are compliant and ready.

For an updated fact sheet on the governemnt funded paid parental leave scheme please click to download Parental-Leave-Fact-Sheet.

 On 6 April 2011 the Victorian parliament introduced a Bill to amend the Crimes Act so that serious workplace bullying could result in a jail term of up to 10 years. The definition of what type of behaviour would be covered by the legislation includes "using abusive or offensive words" that could reasonably be expected to cause physical or mental harm to a person (including self-harm).

Although Victoria is the first state to introduce legislation bringing this behaviour into the criminal sphere, if passed it is reasonable to suggest that other states will follow.

The introduction of this legislation reflects the wider problem of inappropriate workplace behaviour and making those responsible accountable for their actions. The proposed legislation would also cover online bullying which is of particular importance with the growing use of social media sites.

Implications for Employers
Employers need to be particularly diligent in ensuring:
1.    That they have clear policies and guidelines outlining what is acceptable behaviour,
2.    Defined processes for dealing with employees who do

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Are you looking for sample social media guidelines for your organisation? We have developed, in conjunction with bluewiremedia and QudosClub, two sample social media guidelines that you can download and customise to your organisations requirements.

1. Social Media Guidelines - Moderate - Suitable for organisations wanting to take a more temperate approach to social media in the workplace.

2. Social Media Guidelines - Unrestricted - Suitable for organisations that have fully embraced social media and would like relatively unrestricted use in the workplace.

Please note: These guidelines do not consititute a social media policy or legal advice. All organisations should have a separate, comprehensive social media policy that forms part of their policy suite, developed in consultation with a lawyer. For more information on social media policies please contact us on This email address is being protected from spambots. You need JavaScript enabled to view it.

Under provisions in the Fair Work Act 2009 (FWA), an employer cannot take adverse action against an employee because they possess, or are exercising, a ‘workplace right’. These provisions are found in Chapter 3, Part 1 of the Fair Work Act and are referred to as the ‘general protections’ provisions. General protections included workplace rights, industrial activities and other protections. These general protections are designed to protect freedom of association in particular.

The meaning of a workplace right includes the situation where a person is;

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Social Media & Unfair Dismissal - A Guide for Employers

The recent decision by a full bench at Fair Work Australia in Dianna Smith T/A Escape Hair Design v Sally-Anne Fitzgerald [2011]FWAFB 1422 (15 March 2011) upholding an unfair dismissal finding is a timely reminder for employers to ensure they observe the correct procedures when considering terminating an employee, and that they have clear guidelines in place for the use of social media where employees comment on their place of work.

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.

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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