BlandsLaw - Blog posts from Employment Law
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Returning to work after parental leave

In a recent case heard before the Federal Circuit Court[1], Roy Morgan Research was fined $52,000 for denying an employee’s request for flexible hours following her return from maternity leave, and then failing to return the employee to her pre-parental leave position.

While the company had undergone a massive restructure (which led to large scale redundancies), Roy Morgan had created an expectation that the employee would be redeployed to the Research Centre. Instead, she was sacked on account of redundancy. To make matters worse, the court found that the person covering her maternity leave was transferred into the position that would have been suitable for her. Importantly, the court took into account the fact that the employee was still on maternity leave with a young baby and now unemployed.

There is no doubt that balancing work and family life is tough enough as it is. Parents transitioning back into the workplace should be reassured knowing that, under the ‘return to work guarantee’, they have the right to come

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Calculating Redundancy Pay: Do previous casual hours count?

A full bench of the FWC has handed down a landmark decision which has changed the previously accepted interpretation of ‘service’ under the FWA and, in effect, turned upside-down the way in which redundancy payments are usually calculated.

Following the decision in AMWU v Donau[1], a permanent employee’s initial period of regular and systematic casual employment with the same employer will now count towards their period of continuous service used to calculate redundancy pay. Whilst many employees will be rejoicing with this news, the decision holds considerable and far-reaching ramifications for employers who will have to pay the price.

The case involved Donau, a Newcastle engineering and ship-building company, who commenced a large scale redundancy process. Initially, the company did not include prior continuous service by casuals in their redundancy pay calculations. The AMWU argued that this was in breach of their enterprise agreement, which specified that redundancy pay is to be calculated according to periods of continuous employment. The dispute then turned its discussion towards the definition of

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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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In addition to the well-publicised anti-bullying measures introduced on 1 January 2014, there are several other changes to the Fair Work Act 2009 that also came into effect on 1 January and have implications for employers.

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With a few busy months ahead for many businesses holding work social functions and Christmas parties, it is a good time to consider the issues around drugs and alcohol in the workplace. From a legal risk management perspective, best business practice around these issues involves the implementation of workplace policies that cover not only drugs and alcohol, but also performance management, occupational health and safety, discrimination and termination. It may be useful at this time of year to remind employees what policies are in place and when these apply.

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A Queensland tribunal recently found an employer was liable after it failed to properly investigate a sexual harassment claim brought by one of its employees. (McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 (13 May 2013))

The case involved a sexual harassment claim made by a food and beverage attendant against a chef with whom she worked. The attendant claimed the chef had made derogatory comments to her over a number of days and made growling noises in her ear and around her neck. 
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While there is no general entitlement to unpaid leave under the Fair Work Act 2009, there are some provisions that deal with the question of when unpaid leave can be taken. In other cases it is a matter for agreement between the employer and employee.

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Social media in the workplace: practical tips for best practice policies

Internet Law Bulletin (Lexis Nexis) – June 2013

Andrew Bland and Sarah Waterhouse look at the rise in employment law decisions involving social media, particularly in unfair dismissal cases, and examples of emerging case law including the recent appeal in Linfox Australia Pty Ltd v Glen Stutsel. This paper – aimed at legal advisors in the areas of workplace and internet law – proposes that a comprehensive and effectively-implemented policy for employee use of social media is an essential legal risk management tool. It also provides practical hints on what to include in a social media policy for employees.

Click to download article > Internet_Law_Bulletin_June_2013 SM articles

 

The Fair Work Ombudsman (FWO) has recently commended McDonald’s Australia for conducting a self- audit on its employees’ wages and other entitlements, leading to improved workplace relations for the 90,000-strong restaurant chain.

McDonald’s had agreed to participate in the self-audit following an unsuccessful attempt to have an enterprise agreement approved by Fair Work Australia. Although the enterprise agreement was approved on appeal, McDonald’s agreed to enter into a Deed to achieve two compliance activities:

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We live in a country that unfortunately experiences catastrophic bushfires, flooding, cyclones and other similarly damaging natural events. If your business  is negatively impacted by a natural disaster, what are your obligations towards your employees during this difficult time? We briefly consider three scenarios affecting the employment relationship in the event of such a disaster.

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Harmonisation background

In late 2012 an Exposure Draft of proposed new federal anti-discrimination legislation was released by the government. The draft bill seeks to harmonise federal anti-discrimination legislation. Currently there are multiple different federal Acts[1] each of which deals with a different ground of discrimination. The proposal seeks to consolidate all these into one piece of legislation which will cover all the different grounds within one standard legal framework.

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A recent tribunal decision in Queensland highlights how important it is for employers to understand the dos and don’ts of performance management. In Ram v Yes Distribution Pty Ltd and Anor[1], the employer, an Optus reseller, required a sales employee to move to their Townsville store when forced to close their Cairns store for business reasons. The catch, however, was that during discussions with the employee about this relocation the employer chose to raise performance issues as part of the discussion. The employee subsequently claimed that she had been discriminated against on the basis of family responsibilities and that her family commitments prevented her making the move from Cairns to Townsville.

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It’s mid February already. If you’re a small to medium business owner you may be finalising your business plan for the year ahead – or perhaps your team has its head down, on the way to achieving its goals for this quarter. Managing your business’ performance effectively entails managing your employees’ performance effectively. An annual performance appraisal is an integral part of this process but should not be the only time that there is feedback between the employer and the employee.

Regular performance reviews enable you to: 

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The Federal House of Representatives Standing Committee on Education and Employment has released its findings on bullying in the workplace. The report, entitled Workplace Bullying: We just want it to stop was tabled on Monday 26 November 2012 and provides 23 recommendations to create a harmonised set of minimum standards and guidelines for the management of bullying in workplaces.

A nation-wide definition of workplace bullying

The Committee recommends the establishment of a national advisory service to offer advice and guidelines to both employers and employees on what does and does not constitute workplace bullying.  To this end it recommends the adoption of a nationally consistent definition of bullying and what constitutes bullying behavior:

“Workplace bullying is repeated, unreasonable behavior directed towards a worker or group of workers, that creates a risk to health and safety.”

This contrasts with the current situation where there is no express prohibition on workplace bullying in any Australian laws, and with different definitions of bullying and no real guidelines in State and Territory legislation. Add

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