Often, we are asked whether employers can ask prospective employees questions relating to their medical history in the pre-employment stages. These kinds of questions are permissible where they concern the applicant’s capacity to perform the inherent requirements of the role.

Employers should encourage disclosure of pre-existing medical conditions at the earliest opportunity. Not only will this allow employers to make reasonable adjustments where necessary, but can also eliminate potential risks to health and safety that may arise. In certain situations, failing to disclose (or answering dishonestly) a medical condition in pre-employment can lead to disciplinary action, including dismissal.

In a recent case[1], a prison store supervisor, who suffers from type 2 diabetes, claimed that his employer directly discriminated against him by treating him unfavourably, suspending and dismissing him because of his condition. Further, the employee also argued that by allowing an increased number of inmates without a comparable increase in staffing, he was indirectly discriminated against because it meant he could not manage his condition whilst at

Both employers and employees need to be able to differentiate between harmless comments and conduct that crosses into bullying and sexual harassment territory.

When employees do not appreciate how their comments have affected others in the workplace, they commonly claim that they were “only joking”, “just mucking around” or state that they didn’t realise their comments would cause offence. Whilst an appropriate level of workplace banter is heathy and can contribute to employee rapport, employers should ensure that staff understand what is and is not acceptable at work, and deal with any breaches of these standards so that it does not become part of the accepted workplace culture.

In a recent case,[1] a Technical Support Consultant at the Foxtel Call Centre was dismissed for ongoing instances of inappropriate behaviour, repeated sexual innuendo and inappropriate jokes in the workplace. The FWC considered 10 allegations of sexual harassment raised by the employee’s co-workers and, where substantiated, whether these instances formed a valid reason for his dismissal. The employee had been

Prior to termination, employers are urged to consider the reason they are letting their employee go and ensure they have a valid reason for dismissal. It may be because they lack capacity, are underperforming, engaging in unacceptable conduct or for reasons for redundancy. It is well established that the reason must be sound and well founded, and employers must ensure that the dismissal process is handled properly and in accordance with the principles of procedural fairness.

In a recent case^[1] before the FWC, a beach inspector was summarily dismissed for serious misconduct after he decided to lend a helping hand to fix the air-conditioning units in two council vehicles. The employee’s modifications voided the vehicles’ warranties and resulted in a $4000 repair bill.

The employee contended that he was authorised to carry out the modifications by his supervisor (he was previously a trade-qualified auto-electrician/air-conditioning fitter). The council was happy to take advantage of the employee’s “willingness and self-initiative” and he was often encouraged or expected to perform similar

Employers are well within their rights to discipline employees who misbehave over social media, even when the conduct occurs ‘out of hours’ during what is ordinarily private time. However, for employer intervention to be justified, it is necessary to establish a nexus between the alleged misconduct and the employment relationship.

In a recent case before the FWC[1], an employee was dismissed after he shared what was described as a “disrespectful and disturbing” pornographic video via social media with friends, including 19 male and female work colleagues. The employee had been heavily drinking that evening and claimed that he only wanted to send the video to “some of his mates” but hit “send all by mistake”. A female employee who received the video responded “Are you serious? Mate don't send me that shit". The worker posted an apology on his Facebook page the following day.

In alleging that he was unfairly dismissed, the employee argued that Hutchison Port Holdings had no valid reason to dismiss him because there was

Before the employment relationship begins, employers are urged to consider: Is this worker a casual or are they more appropriately categorised as a permanent full/part time employee? Importantly, employers must remember that just because you call them casual, doesn’t mean they are. Getting it right at the outset will be an employer’s greatest tool in avoiding conflict or litigation down the track.  

In a recent case before the Federal Circuit Court,[1] a worker claimed that he was entitled to 15 years’ worth of accrued annual leave because he was in fact a permanent rather than casual employee. However, the employer claimed that he was a casual because he was paid a loading. While there was no written employment contract in place, the employee was told that his job would be "full-time", paid at a "flat rate".

The employment began in 2000 and ended in 2015. Over the course of his employment, the worker “ordinarily worked at least 38 hours a week and usually worked many additional overtime hours”, which

Responding to Allegations of Sexual Harassment

When allegations of sexual harassment and bullying arise, it is insufficient for employers to simply point towards a sexual harassment policy in an effort to dissolve itself from legal liability. Employers have a responsibility to prevent and respond to instances of sexual harassment in the workplace.

This involves developing robust policies, monitoring policy implementation, regularly communicating policy content and providing ongoing training.

Where allegations of sexual harassment warrant the need for a formal investigation, it is imperative that the investigation is fairly conducted, and the evidence carefully considered. However, this is easier said than done when the alleged incidents are uncorroborated, and employers are left with the classic he said/she said scenario. 

In a recent case before the FWC[1], a mine technician alleged that he was unfairly dismissed for breaching the company’s equal employment opportunity and anti- bullying policy, when his employer concluded that he engaged in sexual harassment towards a 19-year-old female trainee.

The allegations, which were raised at the

When redundancies are required as part of addressing a decline in business, employers are urged to consider the golden rule: redundancy relates to the job, and not the person. It is vital for employers to clearly establish (and document) the reasons for redundancy decisions, to prevent disgruntled employees from claiming their selection for redundancy was for an unlawful reason.

In a recent case[1], the Federal Circuit Court found that there was no adverse action against a Hertel Sheet Metal worker who alleged that the real reason for his redundancy was a complaint he had made against a co-worker and his supervisor. In the lead-up to the redundancy, the employee claimed he was experiencing instances of bullying and harassment from a co-worker, which included repeated racist and demeaning comments. When the employee raised the issue with his foreman, he claimed that he overheard the foreman say to another colleague that he “did not give a shit about his complaint.” There was a further confrontation and management decided to separate

It is widely accepted that employers can require their employees to undertake drug testing in accordance with an appropriate company policy. Importantly, the policy must stipulate testing protocols, procedures and agreement on testing methods. In a recent case before the FWC[1], an Elevated Work Platform Operator made an unfair dismissal application after his employment was terminated for failing to attend a drug test, which required him to produce a blood sample. A central question for the FWC was whether the employer’s direction to undertake a blood test was reasonable in the circumstances.

When Lincon Hire & Sales received information from an anonymous source alleging that three employees were using drugs, it decided that these employees would undergo a random drug test in accordance with the Drug and Alcohol Policy. The policy did not specify what method of drug and alcohol testing could be used.

The employees undertook the drug test by way of a urine sample and each employee produced a negative result. However, the company received

In today’s competitive labor market, many job seekers are resorting to fabricating their skills or falsifying their work history on their CV in an effort to land their dream job. However, this leaves employers exposed to great risk. In a recent case before the FWC[1], it was agreed that Spectrum Community Focus had a valid reason to dismiss their finance manager. However, it was decided that the dismissal was unfair because the termination was incorrectly categorized as serious misconduct rather than poor performance.

The employee, who falsely claimed that her qualifications included ‘ASA – CPA Australia’, was responsible for preparing financial reports for all 12 entities related to Spectrum Community Outcomes (SCO).

However, she was summarily dismissed following a series of allegations that concerned her poor performance at work. It was found that she failed to file the company’s return to the Australian Charities and Not-for-profits Commission (ACNC) within the required time frame. Despite her Managing Director’s ability to negotiate a delayed lodgment date, the employee still managed

Despite anti-discrimination legislation and protection under the Fair Work Act (FWA), discrimination against mature aged workers is a prevalent and ongoing issue within Australia.

While many older workers feel ‘shut out’ from recruitment entirely, discrimination within the workplace itself can take many forms, such as:

• Segregation, isolation and bullying
• Denial of flexible working arrangements
• Being overlooked for promotion, skill development and training

This is largely attributed to the fact that poor management and workplace culture creates a platform for negative stereotypes and assumptions to flourish. These include that mature aged workers are not able to adapt to change, have poor health and will take unnecessary personal leave, have difficulty learning new knowledge and technological skills and are frequently labeled as a “poor cultural fit”.

Many of these issues were raised in a recent case before the NSW Civil and Administrative Tribunal[1], where it was found that a 62-year-old Acorn salesperson who had been dismissed was discriminated against because of his age and disability.

A recent case before the Fair Work Commission[1]considered the dismissal of a casual employee who had made racist comments about his manager. The employee was a regular and systematic casual worker and as such was able to make a claim for unfair dismissal. There were two issues at play:

1. Were the comments enough to warrant dismissal?
2. Can an employer deal with disagreement between casual employees by removing one of the workers from the roster?

The employee who was ultimately dismissed had previously raised concerns that his manager had engaged in “cultural exclusion”. The manager was of Estonian background and the employee claimed that she had a habit of hiring employees from the same cultural group, and that she mainly conversed with these staff in their own language.

The incident (which lead to the dismissal) occurred when the manager left work with members of staff who were also Estonian. The manager farewelled the rest of the Estonian staff in their language but ignored the employee when he said

When an employee has been unfairly dismissed, an employer may claim that reinstatement is not appropriate due to a loss of trust and confidence in the employee, rendering the employment relationship no longer viable or productive. However, previous case law has indicated that a degree of friction or tension in the workplace is not enough to avoid an order for reinstatement. An employer’s assessment that they have lost trust and confidence in the employee must be credible, genuine and rationally based.

Two recent cases have addressed this issue. In the Supreme Court of Western Australia[1], the court had to consider whether an order for reinstatement would be appropriate after an employee deliberately and dishonestly made false allegations against her supervisor. In addition, the employee alleged that other members of staff lied and conspired against her. After an investigation into an incident between the employee and her supervisor, it was found that the employee knowingly gave false accounts about what occurred and her employment was terminated as a consequence.

A recent decision by the Federal Circuit Court[1] acts as a reminder for employers to think twice about timing when implementing redundancies.

In this case, the employee had been working for BOC Pty Ltd for almost 2 years when she became pregnant. Upon agreement with her general manager, the employee was scheduled to commence her maternity leave on the 6^th of November 2015. The company subsequently decided that she would be one of 8 employees nationally that would be made redundant as part of a business restructure.

All redundancies were scheduled to occur on 12th November, however the employee’s termination date was brought forward to 6 November, two days before she was due to start her leave. The company alleged that this decision was made with her best interests in mind so that she would not be required to come back to work to be informed of the changes whilst she was on leave.

The employee claimed that she was discriminated against by being chosen because she was

Employers are urged to exercise caution when making an employee’s position redundant. In a recent case,[1] the FWC has made it explicitly clear that a dismissal will not constitute a genuine redundancy if it arises after an employee has refused to accept a pay-cut. Employers will most certainly land themselves in hot water if they simply seek to replace a “redundant” employee with someone at a lower cost.  

Parabellum, who provided emergency response services to Chevron, sought to reduce four workers salaries by 13%, when Chevron cut its contract prices. The workers refused to accept the pay-cut and their roles were subsequently made redundant as part of an operational restructure. The employees argued their dismissal was not a case of genuine redundancy because their positions were filled by newcomers on lower salaries.

For a dismissal to be a case of a genuine redundancy, the Fair Work Act 2009 (Cth) (“FWA”) states that the employer “no longer requires the job to be performed by anyone”.

Parabellum urged the

In certain situations, letting go of underperforming employees can be difficult, particularly when you have bent over backwards trying to help them correct poor conduct or performance. However, there comes a time when it is obvious the employment relationship is no longer viable, especially when the employee’s attitude indicates they have no desire to improve.

In a recent case before the FWC, it was found that there can be exceptions to the usual requirement to follow a formal performance management process when dealing with underperforming staff. Ongoing informal approaches may be utilised, but it must be shown that the employer made continued efforts to communicate the worker’s performance shortfalls and provided assistance in achieving expectations. In this case, the employee was dismissed after his employer dedicated 10 months to daily coaching, training and support as part of an informal performance management process.  According to his supervisor, the employee received far more one-on-one time than any other employee. During these discussions the employee nodded his head to signal he understood what

Recently, the issue of accessorial liability has been at the forefront of the Fair Work Ombudsman’s (FWO) agenda and it’s not a subject being taken lightly.

The Federal Circuit Court recently handed down a decision in a case that dealt with third party advisers who were knowingly aware of their client’s breaches of the Fair Work Act.

Accountancy Firm, Ezy Accounting, was found liable as an accessory for its involvement in a Japanese restaurant operator’s underpayments to its staff. The contraventions included failure to pay the minimum hourly rate of pay, the evening loading, the Saturday and Sunday loading, the public holiday penalty rate, the special clothing allowance, and failure to provide rest breaks and meal breaks.

Ezy Accounting was alert to the fact that the restaurant was failing to meet award obligations and paying their staff incorrect rates, however the company chose to “deliberately shut its eyes” to the contraventions occurring. Whilst the Court is yet to make a determination on the penalties against the accountancy firm, it could

As part of their 4 yearly review of modern awards, the Fair Work Commission (FWC) has handed down a decision which allows for casual employees to request to convert to full-time or part-time employment, subject to certain criteria and restrictions. The Australian Council of Trade Unions (ACTU) sought the changes in an effort to ensure that the safety net system remains fair and relevant. Importantly, it was argued that long-term casual employment permanently denies casual employees to NES benefits such as sick leave, annual leave as well as stability of employment.

In their decision, the FWC have developed a draft model clause which is to be executed in into 85 of the 88 modern awards which do not already contain a casual conversion clause. This clause will allow casual workers to request to convert to permanent employment when:

• They have remained engaged with their employer for 12 months and
• They have worked a pattern of hours on an ongoing basis over the 12 month period which could continue to be

The loss of sensitive confidential information can severely harm a business. For this reason, there are legal mechanisms in place designed to prevent former or current employees from divulging confidential information to new employers or by creating their own competing business. Depending on the nature of the employment relationship, confidential information may be protected though:

• • Confidentiality provisions and restraints in employment contracts.
  • The equitable obligation of confidence.
  • Fiduciary duties to act in employers best interest.
  • Obligations owed under the Corporations Act.

Importantly, the Corporations Act includes a provision that triggers liability when a person is knowingly concerned in or party to a contravention under the Act. Therefore, company directors should think twice before ignoring their duties by participating in confidentiality breaches.

In a recent case heard by the Federal Court, funeral fund management company ‘Forresters’ was ordered to pay $6.2 million in profits earned to competitor company ‘Lifeplan’ for its knowing involvement in the contractual and fiduciary breaches of two Lifeplan employees. In an effort to prepare a business

The Fair Work Commission has released its 2017Annual Minimum Wage Decision, awarding a 3.3% increase to award-reliant employees.

The FWC decision increases the national minimum wage to $694.90 – or $18.29 an hour. This constitutes an increase of $22.20 a week or 59 cents an hour being the equivalent to 3.3% minimum wage increase. . All award rates of pay will increase by 3.3% with effect from the first pay period commencing on or after 1 July 2017.

The FWC panel stated that company profit growth was strong among all industries and that labour productivity in the market sector grew more strongly across 2016 than it had in the previous 2 years.

It was acknowledged that the level of increase decided upon will not lead to inflationary pressure and is highly unlikely to have any measurable negative impact on employment.

Who is affected?

The 2017 Minimum Wage Decision applies to all employees covered by the national workplace relations system.

The Minimum Wage decision will notapply to:

• employers who are sole

Employees are well within their rights to raise occupational health and safety concerns without fear that their employment will suffer as a consequence. Under OHS laws, employers cannot dismiss, injure or alter (or threaten to) an employee in their employment to their detriment for a prohibited reason.

Typically, examples of injuring or altering the conditions of employment have included:

• Demotion/ refusing promotion
• Lower salary, increments or less rewarding bonuses
• Allocation of work below skill/classification level
• Fewer training opportunities
• Job transfer

Employers who engage in these practices can face legal proceedings or even criminal prosecution and penalties if the dominant reason for their action was because of the employee’s involvement in raising health and safety concerns.

In a recent case[1], the Victorian Supreme Court has provided guidance on how OHS laws are applied when employees are discriminated against for a prohibited reason.  A group of Acme Storage employees voiced fears to their operations manager that workplace goods, which required lifting, exceeded the safe work limit of