Informing employees of underperformance can be a difficult task for employers, particularly when employees don’t handle the feedback well. It is a common scenario that disgruntled employees retaliate by making a ‘bullying’ claim against their supervisors. The good news is that employers are well within their rights to implement processes to rectify poor performance to steer workers back on track. Provided that the steps taken by the employer constitute reasonable management action that has been carried out in a reasonable manner, the worker’s bullying claim will not succeed.

In a recent case[1] an AGL engineer, who previously attracted positive performance reviews, has failed to convince the FWC that his supervisor’s actions in placing him on successive performance improvement plans (PIP) amounted to bullying. During his employment, the employee received praise for his “outstanding work ethic and capability” until he was promoted, and matters began to shift. Under a new supervisor who more closely scrutinised the employee’s job description, the employee was eventually placed on a PIP alongside 2 of

Informing employees of underperformance can be a difficult task for employers, particularly when employees don’t handle the feedback well. It is a common scenario that disgruntled employees retaliate by making a ‘bullying’ claim against their supervisors. The good news is that employers are well within their rights to implement processes to rectify poor performance to steer workers back on track. Provided that the steps taken by the employer constitute reasonable management action that has been carried out in a reasonable manner, the worker’s bullying claim will not succeed.

In a recent case[1] an AGL engineer, who previously attracted positive performance reviews, has failed to convince the FWC that his supervisor’s actions in placing him on successive performance improvement plans (PIP) amounted to bullying. During his employment, the employee received praise for his “outstanding work ethic and capability” until he was promoted, and matters began to shift. Under a new supervisor who more closely scrutinised the employee’s job description, the employee was eventually placed on a PIP alongside 2 of

In a recent case,[1] the FWC has sent a reminder that it is “not incumbent on an employer to take any particular steps" when carrying out terminations. The appropriateness of the steps taken in each case will depend upon the circumstances of the situation. However, in dealing with unfair dismissal applications, the FWC relies on the Fair Work Act 2009 (“FWA”) to determine whether a dismissal is harsh, unjust or unreasonable. Factors that are considered include: whether the employer had a valid reason for dismissal; notification of that reason; and whether the employee was afforded the opportunity to respond before the employer made a final decision. The FWC must also consider any other relevant matters.

In this case, the FWC Full Bench quashed an earlier unfair dismissal decision by a senior member after the member had incorrectly assumed that the employee should have has the opportunity to provide a response to the employer about what disciplinary action should be taken. The employee was dismissed after he committed a series

A new model term dealing with how an employee’s request for flexible working arrangements must be dealt with will be inserted into all modern awards from 1 December 2018.

The model term applies to a request by an employee for a change in working arrangements under section 65 of the Fair Work Act 2009 (“the Act”). The Act provides that an employer can only refuse a request on ‘reasonable business grounds’.

The model term includes provision about how the request must be dealt with and includes:

• A requirement to discuss the request with the employee and to genuinely try to reach agreement before the employer responds to the request having regard to:

  (a) the needs of the employee arising from their circumstances;

  (b) the consequences for the employee if changes in working arrangements are not made; and

  (c) any reasonable business grounds for refusing the request.

• A requirement that, if no agreement is reached and the request is refused, the employer is to provide detailed reasons for the refusal,

The role of the Fair Work Ombudsman includes ensuring employers are compliant with Australian Workplace Laws and safeguarding the protection of vulnerable workers from exploitation. In addition to an already extensive list of powers, the FWO has jurisdiction to investigate claims of workplace discrimination on the basis of factors such as race, sex, age and pregnancy.

In its first racial discrimination case, the FWO has successfully sought a $200k penalty against a former Tasmanian Hotelier who significantly underpaid two Chinese workers and treated them differently to their Australian colleagues. The FWO found that the company had breached the discrimination provisions of the Fair Work Act by underpaying the husband and wife employees over $28,000 and by requiring them to work extra hours. It was also found that the company failed to correctly record their hours of work. 

Before the Federal Circuit Court, the FWO argued that the employees’ Malaysian and Chinese backgrounds were a “substantial and operative reason” behind the treatment. Evidence was presented to the court that the hotel

In most circumstances, dismissals take place during pre- arranged face to face meetings between employers and employees.  Employers are required to afford procedural fairness, and this usually involves meeting with the employee to discuss the circumstances around the termination. In saying that, there are circumstances when an employer may validly terminate an employee through less traditional means, such as through a phone call or email.

In a recent case before the FWC[1] a beauty therapist, who was summarily dismissed for serious misconduct, was advised of her dismissal in a late-night phone call which was followed up via email. Prior to the dismissal, the employee attended a disciplinary meeting where allegations regarding the employee’s unacceptable behaviour towards other members of staff were discussed.

The employee’s conduct included forcefully pushing a colleague in the chest, causing her to lose her balance and then slamming a sliding door shut in her face. Further the employee belittled and humiliated other staff members and was dismissive of her employer’s authority. The employee demonstrated no

In a recent case before the FWC,[1] an appeal to quash the approval of the AAA Pet Resort Enterprise Agreement considered whether employees were covered by the Miscellaneous Award 2010 as opposed to being classified “award-free”. It was submitted that the pervious commissioner erred in finding that the employees were not covered by an award.

The employer, which operates a luxury pet resort accommodation, provides pet boarding and grooming services. The employees are categorised into Level 1,2 and 3 Animal Attendants, with pay rates ranging from $17.70 per hour up to $23.00 per hour. It was the employer’s view that pet attendants were “award-free” in Queensland. During the appeal, it was argued by United Voice, who brought the appeal, that the employees were in fact covered by the Miscellaneous Award 2010. The Union contended, that to be excluded from the Award, the FWC must be satisfied that the employees must not have been traditionally covered by an award and this must have been because of the nature and seniority of

It is well established that employers cannot decide to end the employment relationship at the drop of a hat. In most cases there must be a valid, sound, and defensible reason behind the dismissal, which is to be communicated to employees in the appropriate manner and in accordance with proper process.

Employers won’t have a solid basis in defending unfair dismissal claims if their dismissal processes are missing these essential components.

In a recent case before the FWC,[1] an employer flew off the handle when he dismissed one of his star employees in a late-night Facebook messaging conversation which the FWC described as a chat which “spiralled out of control”.

The conversation began when the employer, who previously shared a good working relationship with the employee, messaged the hairdresser over Facebook to confirm whether he had an early morning appointment.  After the employee failed to respond, the employer erupted into a bizarre tirade of abuse and started to reprimand her while awaiting a reply. The employee received a

In a decision published on 9 August 2018, the Fair Work Commission has confirmed that the inclusion of a casual conversion clause to 85 modern awards from 1 October 2018 will proceed as planned, despite submission from employers to narrow the application of the clause.

The model casual conversion clause provides that a “regular casual employee”, defined as a casual employee who has:

1. been employed for over 12 months; and
2. working an ongoing pattern of hours,

can request conversion to full-time or part-time employment if this would not require “significant adjustment” to their pattern of hours.

Employers can refuse the request “on reasonable grounds”, and examples of this are set out in the model clause including if the casual position will cease to exist within the following 12 months, or if the hours of work or days and times the work is performed are likely to significantly change or be reduced in the following 12 months.

The FWC received a number of submissions, including seeking removal of the

We routinely deal with employer issues around casual employment. This is not surprising given the fact that there is no definition of a casual employee in the Fair Work Act, as well as the largely misunderstood notion of who, what and when a casual.  However, a recent decision of the Federal Court has introduced some additional - and costly - hazards into these murky waters.

The case concerns an employee engaged as a truck driver by a labour hire company.

The employee was engaged as a casual and was paid at a rate that included a casual loading paid in lieu of entitlements afforded to permanent employees – notice of termination, leave, etc.

The employee worked for around 4 years under this arrangement.

The employee claimed he was not a casual and was employed on a full time basis.

Despite a number of factors indicating against this, the Court found that the employee was not engaged as a casual, and he was therefore entitled to be paid for leave accrued

In cases of an employee policy breach, courts have supported the principle that it is not enough for an employer to simply point towards the existence of a policy in an effort to justify disciplinary action. Generally speaking, policies are fruitless unless employers can demonstrate that employees have easy access to policy documents, that regular training is provided and that policies (and changes) are effectively communicated to all employees.

In a recent case before the FWC,[1] a longstanding employee of 17 years with a positive work-record was summarily dismissed for breaching his employer’s "zero tolerance" mobile phone policy, when the employee used his phone in what his employer considered a ‘food production area’. The next day, the employee was called into a meeting where he was instantly dismissed.

The employee claimed that the employer had already decided to terminate before the meeting, because it “wanted to make an example out of him”. He said that he was aware that mobile phones were not permitted in the food production area,

Employers are within their rights to dismiss employees who lack the capacity to perform the inherent requirements of their role.  However, when questions concerning capacity arise, employers should ensure there is medical evidence to support their decision. Medical assessments can be relied upon for diagnosis of the employee’s condition, assessment of ability of the employee to perform the specific duties associated with the role, identification of modifications or adjustments that may be necessary and a possible timeframe for the employee to return to work.

In a recent case before the FWC,[1] a bus driver with substantial nerve pain and anxiety was placed on modified ‘light’ duties for a period of 16 months. Following careful review of countless capacity-to-work assessments, abandoned return-to-work plans, meetings and medical reports which indicated that the employees condition was unlikely to improve in the future, the company made the decision to terminate his employment due to restricted capacity.

The employee’s condition surfaced when he was driving a bus and experienced pain in his left wrist

Maintaining confidentiality is an essential component of an effective and functional complaints process. Therefore, it is common for employers to require employees not to disclose information to others during workplace investigations in order to preserve the integrity of the investigation. This is important in protecting all parties concerned, including the complainant, the respondent and any witnesses who may be reluctant to come forward with critical information.

Employers should consider placing confidentiality clauses in their workplace documents, including contracts, policies and procedures, to prevent employees disclosing confidential information. During workplace investigations it is worthwhile reminding participants at the outset about their confidentiality obligations.

In a recent case before the FWC,[1] an employee was dismissed after she sent emails to her Westpac state manager which included factually incorrect information about her colleague (relating to an investigation into a bullying and harassment complaint she had previously made against her colleague). The investigation had concluded and many of the allegations were found to be unsubstantiated. It appeared that the employee sent the emails

Following the outbreak of the 7/11 underpayments scandal in 2016, the Australian Government responded to the controversy by introducing the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (“Bill”). In September last year the Bill passed through parliament, bringing with it a series of significant amendments to the Fair Work Act 2009 (“FWA”) designed to prevent the deliberate and systematic exploitation of vulnerable workers, such as migrants and those who work in the franchisee sector.

All employers, particularly franchisors and holding companies, should be aware of the changes and how they are likely to affect business operations. Those who breach the new laws can expect to face hefty penalties, along with the wrath of the all-powerful Fair Work Ombudsman (FWO), who does not take contraventions of Australian workplace law lightly. The FWA amendments include the following:

1. Introducing higher penalties for ‘serious contravention’ of workplace laws

Employers who engage in ‘serious contraventions’ risk facing substantial financial penalties, which now stand at $126,000 per contravention for individuals and $630,000 for corporations. A

Failing to properly classify the employment relationship is a recurring issue. In a recent case[1], the Fair Work Commission (“FWC”) has shed some light on the distinction between employees and independent contractors and what is required to ensure procedural fairness when terminating labour hire agreements.

In this case, Audi Enterprises was a franchisee of Courier company Couriers Please. Two courier drivers who performed work for Audi Enterprises were let go after the host courier company found significant stock discrepancies in the deliveries that were designated to the drivers. The host courier company alleged that the two couriers stole a parcel containing $17,000 worth of cigarettes after viewing CCTV footage which showed the couriers taking the package.

The drivers were prohibited from attending the Couriers Please premises until an investigation into the alleged theft was completed by the Police. The exclusion clause in the Audi Enterprises and Couriers Please franchisee agreement specifically stated that “Drivers must be approved by Couriers Please... who may, in its absolute discretion, require

Ensuring that co-workers maintain respectful and friendly relations is pivotal in any workplace. In saying that, it is inevitable that tensions between workers will flare up at one point or another. In these circumstances, employers must be able to turn to a code of conduct or policy to address the situation before it’s too late. Further, keeping a firm eye on how workplace culture is developing will be an employer’s greatest tool in preventing improper employee interaction becoming the norm.

In a recent case before the FWC[1], a Qantas baggage handling worker was dismissed following an investigation which revealed instances of serious misconduct directed at his co-worker, which was inconsistent with the Qantas Conduct policy.  

The FWC considered numerous allegations of misconduct and found that many of the claims against the employee were substantiated. Instances which were more serious in nature included where the employee forcefully grabbed a colleague by his shirt and shoved him up against a locker because the co-worker failed to respond verbally to

Employers are urged to deal with complaints of bullying and harassment fairly, promptly and in accordance with their relevant company policies. Otherwise, they may find that an employee seeks intervention from the Fair Work Commission under the anti-bullying provisions which give the Commission power to stop bullying and harassment at work in its tracks.

In a recent case[1], a Ramsay Health Care (“Ramsay”) catering assistant applied to the FWC for an order to stop bullying at work alleging that her manager and HR Advisor failed to investigate or take any action into her complaints of continuing bullying and victimisation. The employee had attended a meeting to discuss allegations against her of unauthorised absence from work and breach of a reasonable management request. Following these allegations, the employee raised bullying and victimisation complaints.

The catering assistant alleged that a group of colleagues made jokes about her, eavesdropped on her conversations and singled her out. Further, she claimed that she was abused and repeatedly accused of being drunk at work,

In a recent case[1], the FWC has shed some light on the law surrounding what can sometimes be the grey area of ‘constructive dismissal’. In the initial FWC decision, it was found that a Bupa aged care worker was constructively dismissed when she submitted her letter of resignation. Bupa appealed the decision and the Full Bench considered whether to treat her resignation as effective or whether it should be truly characterised as termination at the initiative of the employer.

In the lead up to the termination, the employee had been removed from a training session by her general manager and was later taken to a disciplinary meeting where she was informed that there would be an investigation into allegations of misconduct. The employee was required to wait 2 hours outside the meeting room, which she spent worrying about what the allegations were concerning. She assumed they were in relation to a six-pack of beer a resident had given her. Before entering the meeting, she drafted a resignation letter

The Fair Work Commission has released its 2018 Annual Minimum Wage Decision, awarding a 3.5% increase to award-reliant employees.

The FWC decision increases the national minimum wage to $719.20 – or $18.93 an hour. This constitutes an increase of $24.30 a week or 64 cents an hour.  All award rates of pay will increase by 3.5% with effect from the first pay period commencing on or after 1 July 2018.

The FWC panel stated that the labour market has improved significantly with strong employment growth. In particular, full-time employment grew by 3.1 per cent, which is significantly greater than the 1.0 per cent growth from last year. Further, it was noted that overall business conditions are at their highest levels since the global financial crisis.

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 2018 Minimum Wage Decision applies to all employees covered by the national

It is well established that the two key components required during the dismissal process are identifying whether there is a valid reason and showing that employees were afforded procedural fairness. The FWC places substantial emphasis on whether employees are notified of and provided with an opportunity to respond to the reasons for their termination. An employer might have an array of legitimate reasons to let their employee go but if the process lacks procedural fairness, it will likely be all for nothing.

In a recent case before the FWC,[1] an employee was arrested on criminal charges for reasons which were unrelated to his employment, and his employer placed him on leave without pay. Whilst he was incarcerated, he was visited by his direct manager who informed him that he was able to return to work when he made bail. After the worker was granted bail, he visited the workplace and advised his employer that he was ready, willing and able to work and was honest when discussing the nature