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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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It is important that employers understand when it is and is not okay to require employees to undertake a medical examination. This article looks at some recent cases and considers scenarios that would both allow for such a request and where it is not likely to be upheld as a lawful and reasonable management direction. 

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Following a small number of other bullying orders, the Fair Work Commission has just made its first formal finding in a bullying application ([2015] FWC 5272).

Two employees of a small real estate business lodged bullying applications with the Fair Work Commission. They alleged that they had been bullied by a property manager who had belittled, humiliated, undermined and sworn at them.

The employees had made an internal complaint which had been informally actioned and was not conclusive. The two employees had not returned to work and had lodged workers compensation claims for their associated medical costs.

The Commissioner accepted the employees’ account of what had occurred and agreed that there was an ongoing risk of the conduct continuing. The ongoing risk aspect was interesting because the manager had subsequently resigned her position and then accepted a role within an associated business. Complicating matters the manager had since returned temporarily to her previous office location on a ‘secondment’ arrangement. Accordingly, the Commissioner deemed it appropriate to make orders to effectively

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A decision made by the Fair Work Commission has provided some guidance around what conduct will be treated as ‘at work’ in the new bullying jurisdiction.

The new bullying laws, in the Fair Work Act, mean that a worker can make an application and seek orders if they are being ‘bullied at work’.

The case involved a bullying application by three different workers against the Maritime Union of Australia (MUA) and DP World, a port operator. A full bench considered the definition of ‘at work’ in the context of allegations concerning inappropriate Facebook comments.

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A recent Federal Circuit Court case* found that both the employer and the HR Manager had contravened the Fair Work Act (FWA) with the effect that both may face penalties for the contravention.

The case involved an employee who worked in a South Australian plant of a large glass bottle manufacturer. The employee sustained a shoulder injury at work. Following a significant period of time involving workers compensation and rehabilitation, the employer and the employee entered into a new contract. The new contract was for a modified role taking into account the employee’s limitations resulting from the injury. Nearly a year and a half after this arrangement was put in place the employer was advised by WorkCover SA that they no longer needed to provide alternative arrangements for the employee. The employer, through the HR manager, provided the employee with a termination letter and failed to pay out the full notice the employee would have been entitled to under the FWA.

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