BlandsLaw - Blog posts from FWC
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Determining whether your employees are award-free

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

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The importance of policy communication and training

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,

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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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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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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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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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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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Can an offensive comment towards a colleague warrant dismissal?

 

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

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Recent FWC Decision: Casual conversion to permanent employment

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
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FWC rules to cut Sunday and Public Holiday Penalty Rates

FWC rules to cut Sunday and Public Holiday Penalty Rates

In a landmark decision handed down this week, the FWC has ruled to cut Sunday and Public Holiday penalty rates, which will impact over 1 million Australian’s. The decision comes after the Hospitality and retail sectors made applications to vary penalty rate provisions as part of the Fair Work Commission's four-yearly review of awards. However, the announcement has been greeted with mixed reviews, with some business groups arguing that businesses will benefit from the changes though:

  • Increased trading hours and services offered on Sundays and Public Holidays.
  • Potential for businesses to generate more revenue.
  • Increased shifts for workers and overall hours worked.
  • Allowing businesses to hire more staff.

Nonetheless, the decision has been widely criticised by unions and affected parties, with the president of the ACTU stating that many workers will not be able to survive on the considerable pay cut. A summary of the changes are outlined below.

The FWC rejected the argument sought by businesses that Sunday rates

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A very flawed approach to the Dismissal Process

It’s a recurring issue that many employers seem to struggle with: getting the dismissal process right. It appears simple enough- if an employer has a valid reason for a dismissal and the process is handled with procedural fairness, then there should be no reason for an unfair dismissal claim. But why do so many employers get it wrong?

In a recent FWC[1] case it was held that an employee was unfairly dismissed despite his behavioural, performance and conduct issues which included the downloading and storing of pornographic material on his company phone and laptop. Unfortunately, the disciplinary process and the employee’s dismissal were riddled with errors which resulted in a termination that was found to be harsh, unjust and unreasonable.

Smarter Insurance Brokers, a small business, had mistakenly relied upon a clause in the employee’s contract that it believed meant payment in lieu of notice would relieve it of the obligation to provide a substantive reason for dismissal. Consequently the employer dismissed the employee and paid out the notice period

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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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Quitting, absent, or just angry?

A frustrated, annoyed or angered worker may walk off the job and an employer may deem that as the employee’s intention to end their employment. Or perhaps an employee continues to be absent after an authorized period of leave and then becomes completely unresponsive. Is it safe to assume that these workers have given up on their job and abandoned their employment?

Generally speaking, abandonment occurs when an employee clearly, through their actions or lack of action, indicates that they do not wish to continue at work. What is essential is a lack of communication from the employee detailing the reason for their absence.  However, abandonment is not lightly inferred and employers are reminded they must consider all objective facts and correctly follow procedure before quickly jumping to the conclusion that their employee has left their job permanently.  

In a recent case heard before the FWC[1], it was accepted that an angered employee had acted to end his employment on his own volition. During an altercation with

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