BlandsLaw - Blog posts from employment law
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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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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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Is refusing to accept a pay-cut a redundancy situation?

 

Employers are urged to exercise caution when making an employee’s position redundant. In a recent case,[1] the FWC has made it explicitly clear that a dismissal will not constitute a genuine redundancy if it arises after an employee has refused to accept a pay-cut. Employers will most certainly land themselves in hot water if they simply seek to replace a “redundant” employee with someone at a lower cost.  

Parabellum, who provided emergency response services to Chevron, sought to reduce four workers salaries by 13%, when Chevron cut its contract prices. The workers refused to accept the pay-cut and their roles were subsequently made redundant as part of an operational restructure. The employees argued their dismissal was not a case of genuine redundancy because their positions were filled by newcomers on lower salaries.

For a dismissal to be a case of a genuine redundancy, the Fair Work Act 2009 (Cth) (“FWA”) states that the employer “no longer requires the job to be performed by anyone”.

Parabellum urged the

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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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Knowing when abandonment of employment is official

Abandonment of employment arises where an employee absents themselves from the workplace without reasonable excuse, and/or has failed to communicate with their employer the reason for the absence. In these situations, it is essential that the employee has demonstrated an intention to no longer be bound by the terms of the contract.

Often we are asked: at what point is it safe to assume that abandonment has occurred? Or, during a period of unexplained and continued absence, when is it reasonable to conclude that an employee is gone for good? While few modern awards specifically provide for circumstances where an employee will be deemed to have abandoned their employment, the answer is far from straightforward. As evident in the following case, employers will fall into legal trouble if they jump the gun and declare abandonment too soon.

In a recent case heard by the FWC[1], an employee was deemed to have abandoned his employment after he failed to show up to work for a fortnight. Despite previous warnings

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Recognising a ‘sham’ contract

A sham contract refers to an agreement in which an employer attempts to disguise an employment relationship as an independent contractor arrangement. This is done with the intention ofavoiding paying employee entitlements such as superannuation, workers compensation, leave, and certain taxes. Doing this not only significantly reduces costs, but also eliminates an employer’s vicarious liability for the wrongdoing of itsemployees.

However, employers should think twice before presuming they have found a loophole in the system;these arrangements are punishable under the sham contracting provisions of the Fair Work Act 2009, and companies can face a hefty fine of up to $54,000 in the event of a breach. In addition, employers may also be liable for underpayment claims, payroll tax, superannuation payments and be exposed to unfair dismissal claims.

In a recent case heard by FWC[1], it was determined that a worker had access to unfair dismissal after it was found he wasmisrepresented as an independent contractor when in reality he was an employee.The FWC stated that the employer

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The ‘silly season’

With a busy month ahead for many businesses holding work social functions and Christmas parties it is a good time to consider your workplace policies and practices and how they apply to social functions and behaviour that is outside the usual office or work space.

Social Functions

Employee behaviour at work social functions or Christmas parties is subject to workplace policies and must also meet certain standards. A social functions policy may, for example, cover alcohol consumption, appropriate conduct and gift-giving guidelines. It may be useful at this time of year to remind employees what policies are in place, when these apply and that in some instances they cover behaviour outside of the office.

On a practical or common-sense note, planning ahead will give you an edge. Prior to any work function consider possible risks or issues and manage them ahead of time. For example, do you need to arrange transport or taxi vouchers for employees to get home after a work function.

Good workplace policies offer many benefits to

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Can you be sacked for your Facebook comments?

In today’s society, employees are connected in many ways. Not only do they work together but if they are friends on Facebook or connected via LinkedIn, then activities outside of business hours are also visible and can be shared. Therefore, the boundaries between work and private life have become increasingly blurred. Employees should keep in mind how their posts, comments, likes or tweets could affect the relationship they share with their co-workers and potentially negatively impact their employer’s reputation.

Just because an employee is at home when the conduct occurs doesn’t mean action cannot be taken. Claims of bullying and harassment via social media are on the rise and it’s not an issue the FWC takes lightly. In some situations, a person’s employment may be in jeopardy where there is a sufficient connection between alleged misconduct over social media and their employment.

In a recent case heard by the FWC[1], it was found that the decision to sack a worker for making disparaging comments about his supervisor on

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Restraint of Trade: How far is too far?

Employers commonly use restraint of trade clauses in employment contracts to prevent their employees from jumping ship and working for a competitor when their employment ends. In doing so, employers are seeking to protect their business as well as their confidential information, trade secrets and customer, staff and supplier connections. Seems reasonable doesn’t it?

While confidentiality and non-solicitation clauses are generally found to be reasonable and enforceable,the challenge for employers is to ensure their restraint of trade clauses are not struck out for going beyond what is necessary to protect their legitimate business interests.

In a recent case before the Victorian Supreme Court[1], Just Group Ltd (JGL), a retailer company which includes Just Jeans, Peter Alexander and Portman’s, alleged their CFO, who was employed with them for just 6 months, breached her restraint of trade and confidentiality clauses when she accepted a job offer from rival Cotton On. Justice McDonald concluded that the restraints were too broad and went beyond what was reasonable to protect the company’s legitimate

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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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Showing your Employees Compassion and Support

The news of a family member passing away or sustaining a critical injury or illness is incredibly saddening and employers understand that their workers need to be with their loved ones during these difficult times. However employers also have a business to run so how do they strike a balance?

Under the NES, all employees (including casuals) are entitled to 2 days compassionate leave for each occasion when an immediate family or household member dies or suffers a life threatening illness or injury. This period can be taken as a single two day period, two separate one day periods or any separate periods that the employee and employer agree. Permanent employees are entitled to paid compassionate leave and casuals are entitled to unpaid compassionate leave. Employees are to give notice of the taking of leave and must provide evidence to substantiate the leave if requested by their employer.

In a recent case heard by the FWC[1], a sales manager’s request for compassionate leave to attend her grandfather’s memorial

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Termination for serious misconduct

An employer is permitted to instantly dismiss an employee when their actions amount to serious and willful misconduct. Serious misconduct can severely damage the employment relationship and indicate that the employee no longer wishes to be bound by the employment contract. Typically, this kind of conduct includes theft, fraud, assault, intoxication at work and actions that put other employees and the business itself at risk.

However, the tricky part for employers is knowing when an employee’s actions constitute serious misconduct, and when they don’t. Employers will need to assess the seriousness of the conduct in the circumstances and determine whether the punishment fits the crime. Employers also need to ensure that in all situations they follow a reasonable disciplinary process. Otherwise, employers run the risk that any dismissal will be harsh, unjust and unreasonable.  

The importance of procedural fairness has been a hot topic as of late and even when facing misconduct, employers are urged to follow a fair and reasonable dismissal process. In a recent FWC[1] case,

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Changes to modern award provisions for annual leave

As part of their their four- yearly review of modern awards, the Fair Work Commission (FWC) has made changes to a number of awards for annual leave entitlements and the way that annual leave is to be taken. The changes are designed to provide employers with flexibility in managing leave arrangements and prevent cash flow issues with excessive accumulated annual leave. The changes specifically deal with managing excessive accrual of annual leave, payment of annual leave, cashing out annual leave and taking annual leave in advance. Most of the changes took effect as of 29 July 2016.

Excessive Annual Leave

Excessive Annual leave is defined as more than 8 weeks' paid annual leave (10 weeks for shift workers). The new provisions will allow employers to direct their employees with excessive annual leave to take leave, provided that:

  • Employers must request a meeting with employees beforehand and try to reach an agreement on reduce or eliminate excessive accrual of annual leave.
  • The remaining annual leave entitlement is not less than 6
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Tips for managing underperforming staff

If you’re an employer who is concerned about the underperformance of your employees, there is a huge amount of guidance that you can turn to when in doubt. The techniques of a Chinese motivational trainer who beat eight underperforming employees with a stick, shaved the heads of the men and who cut the hair of the women is definitely not the way to go. On a training weekend, the lowest ranking staff were bought up on stage and publically humiliated when the trainer demanded explanations for their underperformance. He then continued to beat the staff, a training model he says he has “explored for many years”. The whole event was captured on video and circulated on social media worldwide, drawing heavy attention and criticism. One user commented “Since when does beating employees become a way of raising performance?’, and we couldn’t agree more.

We are frequently asked how underperformance should be managed or disciplined. Often, it’s not as simple as having a quick one-off discussion but requires employers to articulate

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When can a Casual worker be protected from Unfair Dismissal?

What is Casual Employment?

The distinction between full time, part time and casual employees is not always as straight forward as it might appear.

Generally speaking, casual employees work irregular hours with no guarantee of ongoing work, are hired on an informal basis and are not entitled to paid leave, termination notice or redundancy benefits. However casual workers enjoy a higher hourly pay rate to compensate for their uncertain working arrangement, have the freedom to accept or decline work as it comes and can end their employment without notice. For employers, there are distinct advantages for hiring casual workers including the flexibility to increase staff during busy periods and the right to terminate without notice.

Protection from Unfair Dismissal

There is a common misunderstanding that casual workers cannot file for unfair dismissal; however this is not always the case. 

Employers are advised to monitor the employment relationship closely and be aware of whether these workers are being treated like permanent employees. Simply labelling and paying a worker under a ‘casual’

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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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It has been accepted that employers may negotiate with their staff to take pay cuts during difficult financial times as an alternative to redundancies. However, in a recent case heard by the FWC, it was found that a Wellpark Holdings employee was unfairly dismissed for refusing to accept a 10% pay cut. The company was experiencing a significant cash flow problem and was wary that cutting jobs may cause their employees to struggle in a tight labor market.

Whilst the company had discussed the option of a wage cut with employees, one employee was not consulted as he was on leave. Upon his return, he was given a letter advising that he had until the next day to agree to a 10% wage reduction or face termination. The FWC found that this was not an appropriate way to approach the issue and the employee should have received a full explanation of the company’s financial troubles, rather than being forced to accept the pay cut.

An employer’s ability to impose pay cuts

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A common question we are asked is: What are we allowed to do to monitor what our employees are doing at work? Under general law, employers are able in certain circumstances to conduct surveillance over their employees; both with and without their knowledge. But where do we draw the line?

A recent case heard by the FWC highlights the implications for employers when CCTV footage is not used in the right way. Direct Freight Express were ordered to pay over $25,000 in damages for unjustly dismissing an employee, alleging he stole a laptop that went undelivered to Harvey Norman. The company used CCTV footage as evidence for the dismissal, claiming the driver was ‘suspiciously’ trying to ‘obscure the package from the camera’s view’. The drivers request to see the footage was denied at the disciplinary meeting and was shortly after dismissed.

Also, knowing the difference between ‘overt’ and ‘covert’ surveillance is imperative. ‘Overt’, allows for the lawful surveillance of employees where 14 days notice need be given prior to

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Some employers already use or may be thinking about using pre-employment medical examinations to determine a job candidate’s ability to safely perform the role for which they are being considered.

This article considers a discrimination case against the backdrop of pre-employment medical examinations. In Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176, a prospective employee (ie job candidate) brought a disability discrimination claim against Kembla Watertech. The candidate, Ms Duncan, had been offered a role subject to a pre-employment medical. The doctor performing the medical found that Ms Duncan suffered from a number of medical conditions that would make it difficult for her to perform the role and that there was a high risk of injury or aggravation of other medical conditions. The employer did not proceed with Ms Duncan’s employment and advised her that she was disqualified on the basis that she was unable to perform the inherent requirements of the role.

Ms Duncan lodged a claim with the NSW Anti-Discrimination Board and the matter was heard by

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It is important that employers understand when it is and is not okay to require employees to undertake a medical examination. This article looks at some recent cases and considers scenarios that would both allow for such a request and where it is not likely to be upheld as a lawful and reasonable management direction. 

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