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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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The Australian Human Rights Commission has published an extensive report on work-related age and disability discrimination, acting as a reminder for employers to remain vigilant in the ways these workers are treated.

As the workforce ages and employees retire later in life, older Australians can feel ‘shut out’ of recruitment, feel that they are offered less professional development opportunities, or be the targets for redundancy during periods of organisational restructure. This can also apply to workers suffering from a disability, and the AHRC is keen to ensure that these groups of employees are not disadvantaged as a result of their age and/or disability.

In their report, the Commission makes recommendations for change 

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The Fair Work Commission has released its 2016 Annual Minimum Wage Decision, awarding a 2.4% increase to Award-reliant employees.

The FWC decision increases the national minimum wage to $672.70 per week, or $17.70 per hour. This constitutes an increase of $15.80 per week or 41 cents per hour being the equivalent of a 2.4% minimum wage increase. All award rates of pay will increase by 2.4% with effect from the first pay period commencing on or after 1 July 2016. Weekly wages should be rounded to the nearest 10 cents.

The FWC panel pointed to historically low levels of inflation and wages growth as factors in the modest increase in the minimum wage, and stated that this increase was unlikely to have a negative impact on employment.

Who is affected?

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Clearly an employee who is intoxicated at work will suffer from impaired judgement and may seriously jeopardise their own and other employees’ safety. A common question we are asked is: When can I test employees for drug and alcohol use?

This area is a tricky one for employers as there are competing interests to consider: the employer’s obligation to provide a safe workplace, versus an employee’s right to privacy.

Procedural Fairness v Safe workplace

A recent FWC decision[1] highlights the complexity of this issue. An Ensign employee was summarily dismissed after failing a random drug test, testing positive for methamphetamine, THC and amphetamine. He claims he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary procedure.

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Employers generally want to ensure that a potential employee is honest, reliable and trustworthy. Conducting a police check can be a good indication of whether or not a job candidate possesses these qualities; however this may not always be reasonable or appropriate.

What needs to be considered when conducting criminal history police checks?

The first issue to consider is why the police check is required. The employer should ensure that the information is relevant and necessary, and that it will assist them to make a decision about whether the candidate is able to perform the role for which they are being considered and should be offered the job.

Secondly, the employer should take privacy considerations into account. If a criminal history check is to be conducted, the applicant should be informed from the outset about the police check and the timing of when this will occur. Employers also need to ensure that the information collected from the police check is only seen by the appropriate person(s), and that this information

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Ongoing social changes have paved the way for leniency when it comes to swearing in the workplace. The question becomes when does swearing in the workplace amount to misconduct. The answer largely dependents on workplace culture and the context in which it is used.

A recent decision by FWC highlights the issue of where to draw the line between swearing and grounds for dismissal. In this case[1], an employee of Kailis Broswas dismissed for abusively swearing at his supervisor over an OH&S incident, which caused him to injure his lower back. Following the injury, he directed his anger towards his supervisor which included a repeated use of the ‘f’ word in an aggressive manner.  FWC found that whilst there may have been an existing culture of swearing, the fact that the employee had already received a warning for swearing in the past, coupled with the aggressive nature of the incident, ensured there was a valid reason for his dismissal.

Whilst this case affirms the standpoint that employers will

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A common question we are asked is: What are we allowed to do to monitor what our employees are doing at work? Under general law, employers are able in certain circumstances to conduct surveillance over their employees; both with and without their knowledge. But where do we draw the line?

A recent case heard by the FWC highlights the implications for employers when CCTV footage is not used in the right way. Direct Freight Express were ordered to pay over $25,000 in damages for unjustly dismissing an employee, alleging he stole a laptop that went undelivered to Harvey Norman. The company used CCTV footage as evidence for the dismissal, claiming the driver was ‘suspiciously’ trying to ‘obscure the package from the camera’s view’. The drivers request to see the footage was denied at the disciplinary meeting and was shortly after dismissed.

Also, knowing the difference between ‘overt’ and ‘covert’ surveillance is imperative. ‘Overt’, allows for the lawful surveillance of employees where 14 days notice need be given prior to

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Unfortunately, instances of harassment and discrimination are common practices within the workplace. Often employees participate in acts of wrongdoing that contravene laws that aim to prohibit all discriminatory conduct. Significant implications for employers can arise if they are found to be vicariously liable for the wrongdoings of their employees. Nevertheless, an employer may be able to protect itself against vicarious liability and avoid paying substantial damages for an employees conduct if it can be established that all reasonable steps to prevent unlawful acts occurring in the workplace were in fact taken.  

The issue of what amounts to ‘reasonable steps’ is one of contention, given the operational and size differences from one business to another. Therefore, it is extremely important for employers to be aware of all they can do to best cover themselves from being held liable. A recent case, involving Centerprise Resource Group, highlights this issue for employers. The NT Anti- Discrimination tribunal found Centerprise to be vicariously liable for their employee’s offensive race-based language towards another employee

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The issue of when it is and is not okay to terminate an employee for conduct that occurs outside of the workplace can be a tricky one.  A recent case considered the impact of criminal charges.

The employee was a young apprentice butcher working in a small retail store in regional NSW.  He was charged by police with being an accessory after the fact to murder. His employer subsequently spoke with his parents and said there was concern about the effect of the criminal charge on the business. The employee was terminated and later brought an unfair dismissal application.

The Commissioner considered the initial jurisdictional issue of whether or not the dismissal was in accordance with the Small Business Fair Dismissal Code (the ‘Code’) and held that it was not. The Code requires a two step process for serious misconduct. It is not enough to simply hold a belief that the employee engaged in the alleged misconduct. The second step is to assess if that belief is in fact reasonable

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Contrary to popular belief, an employee who engages in obviously drunken and inappropriate behaviour may still be able to successfully challenge their dismissal if it is not handled appropriately.

A recent unfair dismissal case is a salient reminder to employers to ensure that they manage employees consistently and be vigilant where particular risk factors are present (eg alcohol at work functions).

Facts of the case

In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 a work Christmas party went awry when a drunken employee began repeatedly swearing, making inappropriate comments to other employees and then sexually harassing several female employees at a function immediately following the Christmas party.

Multiple comments were made by other employees after the Christmas party and the employer commenced an investigation. The employer met with the employee initially informally and then formally to put the allegations to him. The employee was later dismissed on the grounds that two allegations of sexual harassment had been made out.

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In our third article in the series looking at recent adverse action cases, we consider a case where the employee alleged her termination was related to a complaint she lodged some years earlier.

In Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099, a childcare centre coordinator was involved in an altercation with an employee who she supervised. The emotionally charged incident, which included raised voices and the coordinator physically pushing the employee, resulted in an external workplace investigation. The investigator found that four of the ten allegations against the coordinator, of bullying and harassment, were substantiated and the decision was taken by the employer to terminate the coordinator’s employment.

The coordinator subsequently brought a claim under the General Protections provisions alleging that she was suspended and later dismissed because of a complaint, about a completely separate matter, that she had made approximately two years ago. The Applicant felt her original complaint had never been adequately responded to or resolved although nothing further had come of it.

The

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We have written previously about Cerin v ACI Operations Pty Ltd & Ors. The Federal Circuit Court has now determined the applicable penalties and ordered that the HR manager pay a penalty of $1020 for her role in the contravention. The employer, ACI, whose role was held to be more serious, was fined $20,400 in penalties. 

By way of background, the Applicant employee was dismissed and successfully brought a case against both the employer and the HR manager involved in his termination for breach of the notice provisions in the Fair Work Act 2009 (Cth) (‘FWA’). The employee received pay in lieu of notice and for reasons that were not clear the amount he received was a couple of days short of what is required by the NES. The earlier decision held that both the HR manager and the employer were liable and this decision has now confirmed the penalties that apply to each.

Lessons for Employers

The issue was not the relatively small amount of the underpayment but rather

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A recent adverse action case* is a salient reminder that all workplace complaints need to be taken seriously and handled appropriately irrespective of the apparent formality of the complaint, who makes it or their motive(s) for making it.

The Facts

Just prior to the expiration of the employee’s three month probation period there was a confrontation between the employee and his supervisor which prompted the employee to make a complaint to HR. The following day in a probation appraisal meeting the supervisor raised performance concerns and offered to extend the probation period. The supervisor subsequently learned of the employee’s complaint, withdrew the offer to extend probation and recommended the employee’s dismissal ostensibly on the grounds that he had failed to meet the required performance standards.

The employee brought an adverse action claim alleging that he was terminated because he had complained about his supervisor and the workplace culture just prior to his termination.

The Decision

The matter was heard in the Federal Circuit Court. Judge Driver appeared to agree with

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Overview of General Protections – Adverse Action

Adverse action claims are not nearly as common as unfair dismissal claims, and in many ways they are more complex.

The Fair Work Act 2009 (Cth) sets out a number of General Protections which include:

(i)            the capacity to exercise or have a workplace right,

(ii)           engaging (or not) in industrial activity and

(iii)          belonging (or not) to a trade union.

A person cannot be treated adversely for these things. Adverse treatment includes termination, demotion, discrimination or other action that treats someone less advantageously than another person because of a prohibited reason.

The onus rests on the Applicant to make out the elements of a General Protections claim. However once the claim is made out the Respondent has to then demonstrate that the action or decision was not taken for a prohibited reason.

There are a number of differences between adverse action and unfair dismissal claims:

-       Different eligibility criteria

Only certain employees are eligible to lodge an Unfair Dismissal application. General protections

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All employees have the right to work in an environment that is free from harassment and discrimination. It is also, for a myriad of reasons, in the best interests of employers to ensure a healthy workplace. In order to do this effectively employers need to understand what is, and is not, discrimination. A recent VCAT decision highlights the potential costs of failing to do so.

In Dziurbas v Mondelez Australia Pty Ltd*  the employer was found to have engaged in direct discrimination on the grounds of disability and the aggrieved employee was awarded $20,000 for injury to his feelings. A further decision on the economic loss will follow and is likely to be for over $200,000.

The employee was terminated, after thirty years of service, on the basis that he could no longer fulfil the inherent requirements of his role as a confectioner because of an earlier elbow injury. In terms of the medical evidence, the employer relied on an earlier medical report which noted that the employee’s regular

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Social media offers enormous business potential but can quickly become a headache for employers if it is misused by employees. A recent FWC decision includes the action of ‘unfriending’ a work colleague on Facebook as unreasonable conduct by an employee.

Facts

In a recent FWC case[1] a bullying application was brought by a property consultant who alleged multiple incidents of bullying behaviour. The issues were primarily between the property consultant and the sales administrator. The behaviour complained of included repeated conduct designed to leave out, humiliate and belittle the property consultant. This variously involved delaying administrative work for the consultant, ignoring her and other inappropriate behaviour.

The Facebook component, which has garnered media notoriety, occurred after the sales administrator attempted to block the complainant leaving a meeting room and likened her to a ‘naughty little school girl’. She then took to Facebook and unfriended the property consultant removing her from her list of Facebook contacts. This latter action was just one aspect within a larger pattern of repeated bullying

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The full bench of the Fair Work Commission recently confirmed that the annual leave provisions in modern awards will be amended to include a right for employers to direct employees to take annual leave if their annual leave accruals exceed eight weeks. The ruling comes as part of the four-yearly review of modern awards and will assist employers to manage and control the accrual of excessive leave by employees.

Excessive Annual Leave Provision

FWC confirmed its earlier view from June 2015, and the wording of the term, regarding the direction by an employer to take leave where an employee has accumulated more than eight weeks annual leave (10 weeks for shiftworkers).

The provision requires that the employer and employer first make a genuine attempt to agree upon steps to reduce the excessive leave accrual, before the employer can direct that leave be taken.

Where a direction to the employee is given, the requirements include that:

a)    The employee’s remaining accrued annual leave is not less than six weeks;

b)    The

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Some employers already use or may be thinking about using pre-employment medical examinations to determine a job candidate’s ability to safely perform the role for which they are being considered.

This article considers a discrimination case against the backdrop of pre-employment medical examinations. In Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176, a prospective employee (ie job candidate) brought a disability discrimination claim against Kembla Watertech. The candidate, Ms Duncan, had been offered a role subject to a pre-employment medical. The doctor performing the medical found that Ms Duncan suffered from a number of medical conditions that would make it difficult for her to perform the role and that there was a high risk of injury or aggravation of other medical conditions. The employer did not proceed with Ms Duncan’s employment and advised her that she was disqualified on the basis that she was unable to perform the inherent requirements of the role.

Ms Duncan lodged a claim with the NSW Anti-Discrimination Board and the matter was heard by

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We have written before about workplace investigations and their utility to help resolve complex disciplinary matters. A recent case has highlighted the potential consequences of an unnecessarily lengthy investigation.

In Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226 a security guard was summarily dismissed for falling asleep while on duty. Senior Deputy President O’Callaghan agreed that there was a valid reason for termination. However the employer took six weeks to complete an investigation into the incident while the employee continued on in his role. The employee was then terminated for serious misconduct six weeks after the incident occurred. It was held that the employer’s response was disproportionate given that it had taken them six weeks to make a decision to terminate during which time the employee continued to work.

An order was made for reinstatement and compensation although the compensation was reduced significantly to take into account the misconduct.

Lesson for employers

Workplace investigations can provide a useful and efficient process to handle a range

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