BlandsLaw - Blog posts from employment contract
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The importance of drafting clear Employment Contracts

A recent case heard by the FWC[1] highlights the problems that follow when employment contracts are poorly drafted. Next Residential Pty Ltd, a building company in Perth, attempted to trade off award provisions by paying a higher annualised salary but got itself into legal trouble when it failed to identify the applicable award or specific provisions it ousted.

A former employee claimed that her employer owed her $29,000 for overtime and lunch breaks worked as directed. However, her employer insisted that she had no entitlement to this as she was paid an annualised salary in accordance with her employment contract. Furthermore, her employer denied that it directed the employee to work overtime or through her lunchbreak and maintained that any additional hours worked by the employee were set off against early finishes, late starts and half days worked.

The employee’s contract stated that her salary was "inclusive of any award provisions/entitlement that may be payable under an award". The FWC found that the contract failed to identify the applicable

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A recent NSW Supreme Court case[1] considered the summary dismissal of a senior ANZ Bank employee. The employee was terminated for serious misconduct and then sought to sue ANZ for breach of his contract claiming over $9 million in damages.

The alleged misconduct involved a significant leak of information to a Financial Review journalist. The leak involved an internal ANZ email which was illegitimately altered and forwarded on anonymously to a journalist. The altered version claimed that there would be no more lending and that ANZ was ‘closed for business’. The journalist in turn contacted ANZ who conducted an investigation. The investigation concluded that Bartlett was responsible and he was subsequently terminated.

The court decision largely turned on the words of the executive’s employment contract. The contract provided that the executive could be summarily terminated if ‘in the opinion of ANZ’ he engaged in serious misconduct. The executive argued that ANZ needed to prove he was actually guilty of the alleged conduct or that there should be an implied

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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.  
 
Behaviour outside of the workplace
 
We recently wrote about the Oracle case (http://www.blandslaw.com.au/blog/174-new-standard-set-for-workplace-harassment-compensation.htmll), a sexual harassment case which involved harassment (at times amounting to criminal conduct) that occurred both inside and outside the office.
Whether or not something is considered ‘at work’ will depend on the facts.
 
This case highlighted that conduct which occurred outside of the office was still, in these particular circumstances, the responsibility of the employer.  To imitigate or avoid liability, employers need to be able to show they have taken reasonable steps to prevent the discriminatory or harmful conduct occurring in the first place.    
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We wrote in 2013 about a Federal Court case which by majority found an implied term of mutual trust and confidence in an employment contract. The case involved the redundancy of a long-term employee of the Commonwealth Bank. The employee claimed that the employer breached the implied term of mutual trust and confidence by not engaging properly in the redeployment process. The Federal Court held in favour of the employee and awarded damages of $317,000.
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Federal Circuit Court says company has case to answer for underpayment by subcontractor.

A company has failed to have a case summarily dismissed by claiming that it was not responsible for underpayment to workers by its subcontractor. The case was brought before the Federal Circuit Court by the Fair Work Ombudsman, and involves a South Australian company, Integrated Trolley Management (‘ITM’), one of many companies around Australia engaged to collect trolleys at various supermarkets. ITM subcontracts its services to Coastal Trolley Services (‘CTS’), who in turn subcontracts to South Jin Pty Ltd (‘South Jin’), the employer of the underpaid workers. The claim was made against South Jin as the employer and against CTS for accessorial liability.

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