BlandsLaw - Blog posts from Employment Law - Page 11
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The recent federal court decision in CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 held that a warning letter issued for an employee’s unauthorised absence did not amount to adverse action. This case is important as it demonstrates that clearly communicated workplace policies, and consequences for breach, may mean the difference between allowable disciplinary action and unlawful adverse action.

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The recent Fair Work Commission decision in Mr Georg Thomas v InfoTrak Pty Ltd T/A InfoTrak [2013] FWC 1134 highlights the importance for  employers of considering both the substance and the process surrounding redundancy.

In this case, Mr Thomas, an Operations Manager of an IT company, brought an unfair dismissal case alleging that his redundancy was not ‘genuine’ because his employer had not discussed it with him or considered him for alternative positions.

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Under provisions in the Fair Work Act 2009 (FWA), an employer cannot take adverse action against an employee because they possess, or are exercising, a ‘workplace right’. These provisions are found in Chapter 3, Part 1 of the Fair Work Act and are referred to as the ‘general protections’ provisions. General protections included workplace rights, industrial activities and other protections. These general protections are designed to protect freedom of association in particular.

The meaning of a workplace right includes the situation where a person is;

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In a ruling that serves as a warning to employers, the Federal Magistrates Court rejected an employer's contention that pre-employment negotiations were not binding.

In the case of McRae v Watson Wyatt Australia Pty Ltd, Federal Magistrate Raphael found that a redundancy provision that was discussed in pre-employment negotiations formed part of the employee’s contract.

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Circumstances may arise in which the employment of your employees need to be terminated. Termination attracts various legal obligations of which employers ought to be mindful in order to avoid or minimise litigious repercussions.

From 1 July next year, the Federal Government's changes to the Work Choices unfair dismissal laws will take effect, which will in turn alter the current legislative termination landscape.

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When does banter between co-workers cross the line?

Workplace culture can heavily influence the way co-workers interact with one another. The trouble is, when the culture is laid back, it becomes all too easy for the lines of acceptable and inappropriate conduct to become blurred. Ultimately, this can lead to a fall out between colleagues and can contribute to an undesirable (and potentially unhealthy or unsafe) working environment. In these situations, employers must uphold their obligations and take reasonable disciplinary action where necessary.

In a recent case before the FWC[1], a mineworker was dismissed for making a number of derogatory Islamophobic and sexist comments over a two way radio which were heard by over 100 employees. The employee argued that the use of the radio was an attempt to avoid fatigue and the channel he used was commonly referred to as the ‘chat channel’. He also maintained that he had not been trained in the company policies regarding unacceptable conduct, and his behavior was not inappropriate as he had heard similar comments over the radio from

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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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