BlandsLaw - Blog posts from Employment Law
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FWC supports dismissal for lack of capacity

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

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Employees keeping ‘hush hush’ during workplace investigations

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

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The Fair Work Act fights back to protect vulnerable workers

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

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Are you misclassifying your workers as Independent Contractors?

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

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Workplace culture and respectful relations between employees

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

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The importance of responding to bullying allegations

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,

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Resignations in the ‘heat of the moment’

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

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FWC has announced increases in national minimum wage -effective from 1 July 2018

 

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

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Procedural Fairness: Providing employees with an opportunity to respond to the reasons for dismissal

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

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Hands off the phone!

Virtually everyone who owns a mobile phone would agree that at one point or another they have used it when they shouldn’t or for too long. Not only are people preoccupied by their phones when they are walking down the street or crossing the road, but they are also distracted at work through the constant updates, emails and message alerts.

On the one hand, mobile phone use in the workplace has its benefits. For instance it enables employees to work remotely and allows employers to get in contact with their workers out-of-hours. In saying that, the detriments of excessive mobile phone use can often outweigh the benefits. It can perpetuate employee productivity concerns, cause disharmony in maintaining a work-life-balance and lead to various workplace safety hazards, especially when employees are using their phones whilst operating dangerous machinery. Prohibiting mobile phone use altogether is likely to be hard to enforce and generally a reasonable level of personal use is acceptable. The question becomes: how can employers manage mobile phone use in

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Calculating Earnings for the unfair dismissal high income threshold

 

Accurately determining an employee’s annual earnings is an important task for employers. As a general rule, employees are not protected from unfair dismissal if their annual income exceeds the high-income threshold (currently $142,000) and they aren’t covered by an award/ enterprise agreement.

 

However, at times calculating annual income is not as straight forward as it appears. In a recent case,[1] the FWC shed some light on what is included in an employee’s annual rate of earnings for the purposes of determining whether they are protected by unfair dismissal laws.

In this case, the employee’s wages were $136,700 at the time of his dismissal and he was not covered by an award or enterprise agreement. While this is clearly lower than the high-income threshold, the employee also received additional ‘Toll’ and ‘Petrol’ benefits.

This was part of an oral agreement where the employer paid for the employee’s petrol for driving to and from his home to the office and other business-related travel. It was also agreed that road

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Are prospective employees obliged to disclose medical conditions?

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

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The fine line between harmless banter and sexual harassment

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

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What are your reasons for dismissal?

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

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Improper social media use out of hours

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

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Casual vs Permanent: The consequences of getting it wrong

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

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Responding to Allegations of Sexual Harassment

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

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Establishing the genuine reason for a redundancy

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

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The importance of a Drug and Alcohol Policy

 

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

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Dealing with employees who lie on their CV’s

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

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