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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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Fair Work Ombudsman Audit

The Fair Work Ombudsman (FWO) regularly investigates claims by employees that they are not being paid correctly or receiving their correct entitlements.

A recent check on a transport company based out of Western Australia revealed that they had not been paying their drivers their full entitlements and were reducing employee wages in order to get an edge over their competitors.

The employer cooperated with the FWO and back paid the worker approximately $20,000 for amounts that he should have received. The employer concerned was issued with a warning that enforcement action would be taken if subsequent breaches of workplace laws occurred.

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A recent Fair Work Commission decision has addressed the potential conflict of interest involved when employees are in a relationship with each other, particularly where there is a direct reporting relationship and the employees have failed to disclose their personal relationship.

The case involved a senior manager at Westpac who was in a relationship with his direct subordinate. Not only did the manager fail to disclose the relationship, but he in fact denied it when questioned by his superiors on two separate occasions.

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The announcement of the 2015 Budget includes changes to the Paid Parental Leave (“PPL”) scheme that seem to contradict the government’s previous statements outlining the purpose of the scheme when it was introduced in 2011. 

The changes provide that, from July 2016, employees who receive paid parental leave under their employment agreement will only receive government-funded PPL to make up any shortfall from employer-funded PPL. If the employer does not provide PPL then the employee will be entitled to the full amount of government-funded PPL. Mr Hockey explained that the changes were to avoid the “double-dipping” that exists under the current arrangement.

Ms. Marian Baird, Sydney University professor and a member of an expert panel evaluating the existing PPL scheme, stated that the PPL scheme was intended to allow women to “complement” their entitlement to employer-funded PPL with government-funded PPL, with a view to women accumulating 26 weeks PPL to assist with early bonding and childcare. Professor Baird stated that “this is an astonishing about-face in policy”.

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The Fair Work Commission has released its 2015 Annual Minimum Wage Decision on Tuesday, 2 June 2015, awarding a 2.5% increase to Award-reliant employees.

The FWC decision increases the national minimum wage to $656.90 per week, or $17.29 per hour. This constitutes an increase of $16.00 per week or 42 cents per hour being the equivalent of a 2.5% minimum wage increase. All award rates of pay will increase by 2.5% with effect from the first pay period commencing on or after 1 July 2015. 

The FWC panel acknowledged the significant reduction in inflation and aggregate wages growth since the last minimum wage review, and stated that this was a factor in the more modest increase in the minimum wage.

Who is affected?

The 2015 Minimum Wage Decision applies to all employees covered by the national workplace relations system. 

The Minimum Wage decision will not apply to: 

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A recent unfair dismissal case has highlighted some interesting issues in relation to secondary employment.

In Jim Bril v Rex Australia Limited t/a K & K Glass [2015] FWC 884, the employee Mr Bril was a truck driver for K&K. Mr Bril undertook paid work for a customer of his employer while on a period of annual leave. The General Manager saw Mr Bril at the customer’s workshop while he was on annual leave and then upon Mr Bril’s return from leave he submitted what was held to be a forced resignation following a meeting with management. Mr Bril lodged an unfair dismissal application and was awarded just over $12,000 in compensation.

The initial question to be resolved was whether Mr Bril had voluntarily resigned or whether the actions of the employer had forced him to resign his employment and therefore amounted to a dismissal. On the evidence it was held that Mr Bril was dismissed as he was essentially given an ultimatum upon his return to work that he

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Internships or work experience placements can be a great opportunity for young people or those new to an industry to gain some of the necessary work experience needed to start a career.  However, issues can arise if the companies or businesses offering such placements take advantage of the situation and start using their interns to do regular work that the company should be paying for.

The Fair Work Ombudsman (FWO) recently brought a case against Crocmedia Pty Ltd (‘Crocmedia’), a developer of television and radio programs in Victoria (Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140). The company was fined $24,000 for failing to pay two university students who initially did a three week placement and then went on to continue doing what was essentially unpaid work for the company. Following their three week placement, the two students were paid approximately $75 a shift for ‘expenses’ which fell well short of the minimum wage and other entitlements that they should have received for the work performed.

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The National Employment Standards provide for redundancy pay, to eligible employees, based on their length of service. There is provision under the Fair Work Act for employers to make an application to have their obligation to make redundancy payments reduced or even waived completely. The two grounds for this application are that the employer has obtained other acceptable employment for the employee, or that they cannot pay the amount. 

A recent FWC decision considered the issue of what an employer needs to do to show that they ‘obtained’ the other acceptable employment. 

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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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Employers have a duty to ensure the health, safety and welfare of their employees.

This requires employers to take reasonable steps to prevent employees from suffering injuries at work. One way of fulfilling this duty is to subject employees to drug and alcohol testing and prevent those under the influence of either drugs or alcohol, from working.

It may however not always be reasonable to direct an employee to submit to a drug or alcohol test. Employers will need to be mindful of the way in which its drug and alcohol policy is implemented and applied, the method of testing, that it is anti-discriminatory in nature, that it is consistently applied and that it is appropriate to the circumstances of employment in order to avoid actions for unfair dismissal or the implementation of an ineffective policy.

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