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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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More often than we'd like, we see clients as employers receiving bullying claims in response to their attempts at employee performance management. These unfortunate situations can sometimes arise from an employer simply mishandling, or neglecting to, manage performance correctly.

 In this article we outline what does and does not constitute bullying in the workplace, and steps employers can take to avoid the types of scenarios that may lead to bullying claims.

What is bullying?

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If your organisation has more than one employee, you need a social media policy! 

Many organisations use social media as a marketing tool; but if even if your company doesn’t use social media, your employees do – often in the workplace. BlandsLaw’s advice is to embrace the technology – and set the terms for its use with a tailored policy – than to ban it. This will enable your staff to freely participate in social media but also remain clear and informed about what is acceptable on these platforms. Social media is the tool.

If employees are wasting time on social media, they’d be wasting time anyway.”

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A recent decision by the FWC has described an employee’s treatment as ‘heavy handed’ but found that it did not meet the definition of bullying under the Fair Work Act.

A childcare centre worker lodged a bullying claim against the childcare centre, the director and a colleague in respect of events that spanned several years. The issues in question involved two main issues: interpersonal conflict between the complainant and her colleague and secondly, the director’s handling of two disciplinary matters.                                                                                                                                                                        

The first disciplinary incident involved the complainant leaving steps out that could have caused a child to fall and in the second incident she applied the incorrect sunscreen on a child.The facts and differing evidence present a picture of a personality conflict between the complainant and her colleague. The complainant had a preference for some tasks over others and the communications between the two had at times been fraught on both sides. The alleged safety or disciplinary incidents were apparently undisputed but the complainant took issue with the director’s

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A recent Queensland Civil and Administrative Tribunal (QCAT) decision* highlights how easily employers may breach anti-discrimination legislation without necessarily intending to do so.

The complainant, a prospective employee, brought a claim against Woolworths because the online job application form required him to state his gender, date of birth and confirm his ability to lawfully work in Australia. Essentially the claim was that the requirement for job applicants to supply this information breached Queensland’s Anti-Discrimination Act by unnecessarily requesting information during the recruitment process which could form the basis for discrimination.

Woolworth’s arguments included that the information allowed them: to recruit for positions where employees needed to be over 18 years of age; to comply with gender reporting requirements; and avoid breaching the federal immigration legislation.

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An employer, who lost a large contract to supply security services, has recently been ordered to make redundancy payments to 49 affected employees.

The employer, FBIS International Protective Services (Aust) Pty Ltd, had previously applied to and was granted an exemption by the Fair Work Commission (FWC) from having to make redundancy payments. The exemption was granted, at first instance, on the basis that the majority of these employees were taken on by AGC National Pty Ltd who ended up with the contract for security services.

The decision was successfully appealed and the full bench of the FWC ruled that FBIS were not in fact the motivating factor for organising acceptable alternative employment for the employees. FBIS’s involvement in obtaining other employment for the employees was limited to providing the employee’s names and contact details to AGC. Although most of the employees were subsequently employed by AGC, the actions of FBIS were not found to be sufficient for the purposes of securing alternative employment for the employees.

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A senior employee who attended a work-related conference and exhibited signs of drunkenness at 9am on the morning following a night out drinking with work colleagues, has successfully been awarded nearly $300,000 in damages after being wrongly dismissed for serious misconduct.

The employee, a senior manager within the company, spent the night out drinking with work colleagues before falling asleep outside his hotel room in the early hours. He subsequently attended the work training conference, being held in the hotel, whilst still apparently drunk. The alleged behaviour included slurred and louder than normal speech, using animal noises when describing a recent safari and smelling of alcohol. The employee’s behaviour became the subject of an investigation which concluded that he should be summarily dismissed.

Ultimately the issues to be decided by the court rested on the correct interpretation of the employment contract and whether the conduct was properly considered serious misconduct.

Why was the behaviour held not to be “serious misconduct”?

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Twelve months after the introduction of national anti-bullying laws, Andrew Bland - Principal discusses the issue.

The recent annual report of the Fair Work Commission (FWC) showed the number of bullying complaints trending upwards. However, the numbers are nothing like what the concerned pundits predicted, nor has the new jurisdiction turned out to be the great threat anticipated to employers and their ability to manage staff, or so the FWC's capacity to deal with the flood of complaints.

In January 2014, as the new jurisdiction was launched, there were more that 28,000 hits on the FWC's website dealing with anti-bullying laws. But by the six-month mark, only 343 applications had been made.

There are many reasons why we haven't seen the spike in complaints forecast. 

It's probable many employees remain unaware of the regime and how to apply it. This may account for slow creep in the number of complains. When faced with an uncomfortable situation at work, many employees will simply leave. The other major disincentive is that there's

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The Federal Circuit Court has recently found a sole director responsible for the underpayment of a long-term employee in Scotto v Scala Bros Pty Ltd & Anor [2014] FCCA 2374.

The employee worked for the delicatessen/ café for nearly 30 years and his claims included the failure of the employer to pay the minimum wage, allowances and overtime; failure to provide payslips and failure to make superannuation contributions throughout this time period.

The employee also alleged that his former employer did not pay out his accrued entitlements when his employment ended in 2010. The total amount claimed was just over $1.5 million plus civil penalties for non-compliance with the legal requirements. The case was brought against both Scala Bros as the employer and against the sole director personally in her capacity as director and manager of the business.

Wading through a messy tangle of facts and complicated family issues, Judge Cameron accepted the validity of a number of the claims although noted that some of the older claims could no

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A recent NSW Supreme Court case[1] considered the summary dismissal of a senior ANZ Bank employee. The employee was terminated for serious misconduct and then sought to sue ANZ for breach of his contract claiming over $9 million in damages.

The alleged misconduct involved a significant leak of information to a Financial Review journalist. The leak involved an internal ANZ email which was illegitimately altered and forwarded on anonymously to a journalist. The altered version claimed that there would be no more lending and that ANZ was ‘closed for business’. The journalist in turn contacted ANZ who conducted an investigation. The investigation concluded that Bartlett was responsible and he was subsequently terminated.

The court decision largely turned on the words of the executive’s employment contract. The contract provided that the executive could be summarily terminated if ‘in the opinion of ANZ’ he engaged in serious misconduct. The executive argued that ANZ needed to prove he was actually guilty of the alleged conduct or that there should be an implied

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With a busy month ahead for many businesses holding work social functions and Christmas parties it is a good time to consider your workplace policies and practices and how they apply to social functions and behaviour that is outside the usual office or work space.  
 
Behaviour outside of the workplace
 
We recently wrote about the Oracle case (http://www.blandslaw.com.au/blog/174-new-standard-set-for-workplace-harassment-compensation.htmll), a sexual harassment case which involved harassment (at times amounting to criminal conduct) that occurred both inside and outside the office.
Whether or not something is considered ‘at work’ will depend on the facts.
 
This case highlighted that conduct which occurred outside of the office was still, in these particular circumstances, the responsibility of the employer.  To imitigate or avoid liability, employers need to be able to show they have taken reasonable steps to prevent the discriminatory or harmful conduct occurring in the first place.    
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We wrote in 2013 about a Federal Court case which by majority found an implied term of mutual trust and confidence in an employment contract. The case involved the redundancy of a long-term employee of the Commonwealth Bank. The employee claimed that the employer breached the implied term of mutual trust and confidence by not engaging properly in the redeployment process. The Federal Court held in favour of the employee and awarded damages of $317,000.
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Social media is an emerging and dynamic phenomenon, and consequently social media law is continually being revised. At its intersection with employment law, there are a number of undecided issues including those around non-solicitation, and the use of social media accounts and contacts post-termination. What happens if an employee uses their LinkedIn account to seek business, and sends an ‘invitation’ to all their contacts including their former employer’s clients?

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A recent sexual harassment case,  Richardson v Oracle Corporation Australia Pty Ltd , has generated commentary and surprise about the significant increase to the damages awarded to the complainant on appeal to the full federal court. Ms Richardson, who was the victim of repeated and cruel sexual harassment by a colleague when they were both employees with Oracle, successfully had the original award for damages of $18,000 set aside and replaced with an order of $130,000 for damages.

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