BlandsLaw - Blog posts from employee
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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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No compensation for reasonable management action

Often an aggrieved or distressed employee will claim to have suffered psychological injury as a result of an employer addressing performance issues or concerns with the employee. However, these claims will fail where it can be shown that the employer’s action was reasonable in the circumstances.

For example, under the Safety, Rehabilitation and Compensation Act (Cth), referred to in the High Court case below, reasonable management action includes:

 

  • Performance appraisal
  • Counselling
  • Suspension or standing down of duties
  • Disciplinary action
  • Anything done in connection with the employee's failure to obtain a promotion or transfer.

This definition is consistent with the courts’ interpretation of other legislation including the Fair Work Act 2009 and state-based workers compensation legislation.

But the question of what is ‘reasonable’ and what is not is often unclear. Courts accept that management actions don’t need to be ‘perfect’, and  will take into account a number of considerations including the facts and circumstances that led to the need for action, how the action was carried out and the consequences

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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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When swearing amounts to verbal abuse

Employees should choose their words carefully; whilst ‘colourful’ language may be tolerated at times, profane and insulting language towards another employee usually isn’t.

In two recent cases, the FWC has shed light on when an employer may be justified in sacking an employee for verbally abusing co-workers. However, employers are cautioned to consider all the factors surrounding the employee’s conduct when deciding whether instant dismissal is warranted.

In the first case[1], the dismissal of a sales consultant at a car dealership was upheld after he verbally abused the dealership’s stock controller over the phone. The employee and his wife (also an employee) were on a rostered day off when his wife received a call from the stock controller informing her about an inquiry from a contractor.

Despite the fact that the inquiry was quickly resolved, the employee called back shortly afterwards and began to abuse the stock controller using words such as “don’t f***ing call us ever” and “we are busy”. She tried to explain to the employee

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A tougher FWO to protect Australia’s vulnerable workers

The Turnbull Government is following through with its election promise to deliver greater protection to Australia’s vulnerable workers by strengthening the powers of the Fair Work Ombudsman.

In early 2017, new laws will be introduced that will enhance the FWO’s examination powers and expressly prohibit employers from providing false and misleading information to Fair Work Inspectors. The Government also plans to increase the penalties (up to ten times the current maximum) that apply to employers who underpay workers or who fail to keep sufficient employment records.  The intention is to deter businesses from engaging in practises that exploit vulnerable workers and to equal the playing field for compliant businesses doing the right thing.

In addition, a migrant workers taskforce has been established to improve employee protections for overseas workers. One of the key functions of the taskforce is to monitor 7-Eleven’s progress in rectifying their breaches which included the significant underpayment of wages, the manipulation of the payroll system and the doctoring of false employment records. The taskforce, chaired by

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A recent case heard before the FWC[1] should encourage employers providing internships to consider whether their programs are being carried out lawfully.

AMIG, A Chinese Media Company, received a huge $270,000 fine for failing to pay the basic minimum entitlements to two workers, including an intern who was required to complete 180 hours of unpaid work. During this time, the intern was expected to carry out productive work expected of a normal employee but without any pay cheque in return. It was found that AMIG mischaracterised the employment relationship and exploited the university student in order to avoid paying proper wages.

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The Australian Human Rights Commission has published an extensive report on work-related age and disability discrimination, acting as a reminder for employers to remain vigilant in the ways these workers are treated.

As the workforce ages and employees retire later in life, older Australians can feel ‘shut out’ of recruitment, feel that they are offered less professional development opportunities, or be the targets for redundancy during periods of organisational restructure. This can also apply to workers suffering from a disability, and the AHRC is keen to ensure that these groups of employees are not disadvantaged as a result of their age and/or disability.

In their report, the Commission makes recommendations for change 

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Clearly an employee who is intoxicated at work will suffer from impaired judgement and may seriously jeopardise their own and other employees’ safety. A common question we are asked is: When can I test employees for drug and alcohol use?

This area is a tricky one for employers as there are competing interests to consider: the employer’s obligation to provide a safe workplace, versus an employee’s right to privacy.

Procedural Fairness v Safe workplace

A recent FWC decision[1] highlights the complexity of this issue. An Ensign employee was summarily dismissed after failing a random drug test, testing positive for methamphetamine, THC and amphetamine. He claims he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary procedure.

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We have written previously about Cerin v ACI Operations Pty Ltd & Ors. The Federal Circuit Court has now determined the applicable penalties and ordered that the HR manager pay a penalty of $1020 for her role in the contravention. The employer, ACI, whose role was held to be more serious, was fined $20,400 in penalties. 

By way of background, the Applicant employee was dismissed and successfully brought a case against both the employer and the HR manager involved in his termination for breach of the notice provisions in the Fair Work Act 2009 (Cth) (‘FWA’). The employee received pay in lieu of notice and for reasons that were not clear the amount he received was a couple of days short of what is required by the NES. The earlier decision held that both the HR manager and the employer were liable and this decision has now confirmed the penalties that apply to each.

Lessons for Employers

The issue was not the relatively small amount of the underpayment but rather

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A recent adverse action case* is a salient reminder that all workplace complaints need to be taken seriously and handled appropriately irrespective of the apparent formality of the complaint, who makes it or their motive(s) for making it.

The Facts

Just prior to the expiration of the employee’s three month probation period there was a confrontation between the employee and his supervisor which prompted the employee to make a complaint to HR. The following day in a probation appraisal meeting the supervisor raised performance concerns and offered to extend the probation period. The supervisor subsequently learned of the employee’s complaint, withdrew the offer to extend probation and recommended the employee’s dismissal ostensibly on the grounds that he had failed to meet the required performance standards.

The employee brought an adverse action claim alleging that he was terminated because he had complained about his supervisor and the workplace culture just prior to his termination.

The Decision

The matter was heard in the Federal Circuit Court. Judge Driver appeared to agree with

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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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The National Employment Standards provide for redundancy pay, to eligible employees, based on their length of service. There is provision under the Fair Work Act for employers to make an application to have their obligation to make redundancy payments reduced or even waived completely. The two grounds for this application are that the employer has obtained other acceptable employment for the employee, or that they cannot pay the amount. 

A recent FWC decision considered the issue of what an employer needs to do to show that they ‘obtained’ the other acceptable employment. 

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Employers have a duty to ensure the health, safety and welfare of their employees.

This requires employers to take reasonable steps to prevent employees from suffering injuries at work. One way of fulfilling this duty is to subject employees to drug and alcohol testing and prevent those under the influence of either drugs or alcohol, from working.

It may however not always be reasonable to direct an employee to submit to a drug or alcohol test. Employers will need to be mindful of the way in which its drug and alcohol policy is implemented and applied, the method of testing, that it is anti-discriminatory in nature, that it is consistently applied and that it is appropriate to the circumstances of employment in order to avoid actions for unfair dismissal or the implementation of an ineffective policy.

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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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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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