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Responding to Allegations of Sexual Harassment

Responding to Allegations of Sexual Harassment

When allegations of sexual harassment and bullying arise, it is insufficient for employers to simply point towards a sexual harassment policy in an effort to dissolve itself from legal liability. Employers have a responsibility to prevent and respond to instances of sexual harassment in the workplace.


This involves developing robust policies, monitoring policy implementation, regularly communicating policy content and providing ongoing training.

Where allegations of sexual harassment warrant the need for a formal investigation, it is imperative that the investigation is fairly conducted, and the evidence carefully considered. However, this is easier said than done when the alleged incidents are uncorroborated, and employers are left with the classic he said/she said scenario. 

In a recent case before the FWC[1], a mine technician alleged that he was unfairly dismissed for breaching the company’s equal employment opportunity and anti- bullying policy, when his employer concluded that he engaged in sexual harassment towards a 19-year-old female trainee.

The allegations, which were raised at the

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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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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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Stereotypes affecting mature aged workers

Despite anti-discrimination legislation and protection under the Fair Work Act (FWA), discrimination against mature aged workers is a prevalent and ongoing issue within Australia.





While many older workers feel ‘shut out’ from recruitment entirely, discrimination within the workplace itself can take many forms, such as:

  1.        Segregation, isolation and bullying
  2.        Denial of flexible working arrangements
  3.        Being overlooked for promotion, skill development and training

This is largely attributed to the fact that poor management and workplace culture creates a platform for negative stereotypes and assumptions to flourish. These include that mature aged workers are not able to adapt to change, have poor health and will take unnecessary personal leave, have difficulty learning new knowledge and technological skills and are frequently labeled as a “poor cultural fit”.


Many of these issues were raised in a recent case before the NSW Civil and Administrative Tribunal[1], where it was found that a 62-year-old Acorn salesperson who had been dismissed was discriminated against because of his age and disability.

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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 goodbye.

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Unfair Dismissal: When will reinstatement be inappropriate

When an employee has been unfairly dismissed, an employer may claim that reinstatement is not appropriate due to a loss of trust and confidence in the employee, rendering the employment relationship no longer viable or productive. However, previous case law has indicated that a degree of friction or tension in the workplace is not enough to avoid an order for reinstatement. An employer’s assessment that they have lost trust and confidence in the employee must be credible, genuine and rationally based.

Two recent cases have addressed this issue. In the Supreme Court of Western Australia[1], the court had to consider whether an order for reinstatement would be appropriate after an employee deliberately and dishonestly made false allegations against her supervisor. In addition, the employee alleged that other members of staff lied and conspired against her. After an investigation into an incident between the employee and her supervisor, it was found that the employee knowingly gave false accounts about what occurred and her employment was terminated as a consequence.

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Timing Critical in Adverse Action against Pregnant Employee

A recent decision by the Federal Circuit Court[1] acts as a reminder for employers to think twice about timing when implementing redundancies.

In this case, the employee had been working for BOC Pty Ltd for almost 2 years when she became pregnant. Upon agreement with her general manager, the employee was scheduled to commence her maternity leave on the 6th of November 2015. The company subsequently decided that she would be one of 8 employees nationally that would be made redundant as part of a business restructure.

All redundancies were scheduled to occur on 12th November, however the employee’s termination date was brought forward to 6 November, two days before she was due to start her leave. The company alleged that this decision was made with her best interests in mind so that she would not be required to come back to work to be informed of the changes whilst she was on leave.

The employee claimed that she was discriminated against by being chosen because she was

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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 Commission to

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Managing performance issues through informal methods

In certain situations, letting go of underperforming employees can be difficult, particularly when you have bent over backwards trying to help them correct poor conduct or performance. However, there comes a time when it is obvious the employment relationship is no longer viable, especially when the employee’s attitude indicates they have no desire to improve.

In a recent case before the FWC, it was found that there can be exceptions to the usual requirement to follow a formal performance management process when dealing with underperforming staff. Ongoing informal approaches may be utilised, but it must be shown that the employer made continued efforts to communicate the worker’s performance shortfalls and provided assistance in achieving expectations. In this case, the employee was dismissed after his employer dedicated 10 months to daily coaching, training and support as part of an informal performance management process.  According to his supervisor, the employee received far more one-on-one time than any other employee. During these discussions the employee nodded his head to signal he understood what

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Accountancy firm held liable for client’s breaches of the Fair Work Act

Recently, the issue of accessorial liability has been at the forefront of the Fair Work Ombudsman’s (FWO) agenda and it’s not a subject being taken lightly.

The Federal Circuit Court recently handed down a decision in a case that dealt with third party advisers who were knowingly aware of their client’s breaches of the Fair Work Act.

Accountancy Firm, Ezy Accounting, was found liable as an accessory for its involvement in a Japanese restaurant operator’s underpayments to its staff. The contraventions included failure to pay the minimum hourly rate of pay, the evening loading, the Saturday and Sunday loading, the public holiday penalty rate, the special clothing allowance, and failure to provide rest breaks and meal breaks.

Ezy Accounting was alert to the fact that the restaurant was failing to meet award obligations and paying their staff incorrect rates, however the company chose to “deliberately shut its eyes” to the contraventions occurring. Whilst the Court is yet to make a determination on the penalties against the accountancy firm, it could

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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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Employers can face hefty costs when involved in confidentiality breaches

The loss of sensitive confidential information can severely harm a business. For this reason, there are legal mechanisms in place designed to prevent former or current employees from divulging confidential information to new employers or by creating their own competing business. Depending on the nature of the employment relationship, confidential information may be protected though:

    • Confidentiality provisions and restraints in employment contracts.
    • The equitable obligation of confidence.
    • Fiduciary duties to act in employers best interest.
    • Obligations owed under the Corporations Act.

Importantly, the Corporations Act includes a provision that triggers liability when a person is knowingly concerned in or party to a contravention under the Act. Therefore, company directors should think twice before ignoring their duties by participating in confidentiality breaches.

In a recent case heard by the Federal Court, funeral fund management company ‘Forresters’ was ordered to pay $6.2 million in profits earned to competitor company ‘Lifeplan’ for its knowing involvement in the contractual and fiduciary breaches of two Lifeplan employees. In an effort to prepare a business

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The FWC has announced increases in national minimum wage effective from 1 July 2017

The Fair Work Commission has released its 2017Annual Minimum Wage Decision, awarding a 3.3% increase to award-reliant employees.

The FWC decision increases the national minimum wage to $694.90 – or $18.29 an hour. This constitutes an increase of $22.20 a week or 59 cents an hour being the equivalent to 3.3% minimum wage increase. . All award rates of pay will increase by 3.3% with effect from the first pay period commencing on or after 1 July 2017.

The FWC panel stated that company profit growth was strong among all industries and that labour productivity in the market sector grew more strongly across 2016 than it had in the previous 2 years.

It was acknowledged that the level of increase decided upon will not lead to inflationary pressure and is highly unlikely to have any measurable negative impact on employment.

Who is affected?

The 2017 Minimum Wage Decision applies to all employees covered by the national workplace relations system.

The Minimum Wage decision will notapply to:

  • employers who are sole
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Raising Occupational Health and Safety concerns in the workplace

Employees are well within their rights to raise occupational health and safety concerns without fear that their employment will suffer as a consequence. Under OHS laws, employers cannot dismiss, injure or alter (or threaten to) an employee in their employment to their detriment for a prohibited reason.




Typically, examples of injuring or altering the conditions of employment have included:

  • Demotion/ refusing promotion
  • Lower salary, increments or less rewarding bonuses
  • Allocation of work below skill/classification level
  • Fewer training opportunities
  • Job transfer

Employers who engage in these practices can face legal proceedings or even criminal prosecution and penalties if the dominant reason for their action was because of the employee’s involvement in raising health and safety concerns.

In a recent case[1], the Victorian Supreme Court has provided guidance on how OHS laws are applied when employees are discriminated against for a prohibited reason.  A group of Acme Storage employees voiced fears to their operations manager that workplace goods, which required lifting, exceeded the safe work limit of

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Managing internet and email use in the workplace

The benefits of internet and email use in the workplace are undeniable; not does communication happen at the click of a button, but information can be sourced instantaneously meaning tasks can be completed quickly and efficiently. Having said that, employees do not have free reign to surf the web as they please, and restrictions should be in place to prevent employees overusing these services for non-work related activities.

In a recent case before the NSW Industrial Relations Commission[1], an employee was dismissed for breaching her employer’s code of conduct and communications policy when she stored 1200 inappropriate and pornographic emails in a "funny emails" folder. The investigation found that the folder contained emails which were “considered pornographic, graphic (violence), and generally inappropriate in nature”. A non-work-related, 23-page personal journal was also found, which breached the policy's personal use clause and ‘encroached on work time’.  

The employee adopted a ‘cavalier attitude’ towards the situation and attempted to contend that the employer’s IT system should have prevented unwelcome and

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Should company policies form part of the employment contract?

We are often asked  whether or not workplace policies should be incorporated or referred to in employment contracts. Historically employment contracts have included clauses that dealt with an employer’s expectations around conduct and company procedures, however there has been a movement away from this practice as employers prefer to have more control over the content of the policies without binding themselves contractually.

The case law in this area is mixed and establishes that, while policies may be incorporated into employment contracts, or simply referenced within the contract, there is a risk that this creates binding obligations on both the employer and its employees.Employers must use precise, unambiguous and clear language to ensure their true intentions are carried across. Otherwise, employers could find themselves in legal strife if they fail to abide by their own policies. A review of the case law in this area indicates that whether or not a reference to policies within an employment contract  creates contractual obligations will be judged on the particular facts of each case.

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Disability Discrimination in the workplace

The effects of discrimination in the workplace can be damaging, not only in terms of business reputation but also staff commitment, morale and productivity. In Australia there are Anti-Discrimination laws as well as protections under the Fair Work Act 2009 (“FWA”) to provide legal redress for those who suffer as a result of discriminatory practices. The general protections under the FWA prohibit employers from taking adverse action against an employee on the basis of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status and so on. For instance, a job seeker is protected from being denied employment on the basis of a physical disability.

However, there is an exception to this general rule. The protection does not extend to action that is taken because of a person’s inability to perform the inherent requirements of the particular position concerned. This exception will apply even if the discriminatory basis is the reason that the person is unable to perform the inherent requirements of the role. In a recent

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Australia & the ‘Gig Economy’

In recent years, the popularity of online service apps such as Uber, Diliveroo and Foodora has skyrocketed and Australia has embraced the ‘gig economy’ with open arms. This new movement refers to environments where businesses or individuals contract with free agent workers (usually through an app-based platform) for short-term engagements. As a result, an increased number of workers are trading off the stability which traditional employment provides for flexibility and autonomy whereas others are simply keen to earn a little extra cash on the side.

However, workers can experience inconsistent hours of work, patchy cash flow and lack of entitlements such as paid sick leave, holidays, notice of termination and so on. Additionally, workers are expected to provide their own physical assets and are required to pay any maintenance costs out of their own pockets. There is also the question of who is responsible if something goes wrong. Issues have arisen regarding the legal implications of these kinds of arrangements including whether these workers are truly independent contractors or in

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Employer Obligations when implementing redundancies

The redundancy process is complex and, if the proper process is not followed, there is a high chance that employers will fall short of meeting the requirements of a genuine redundancy. Getting the process right is important, as employees will fail in an unfair dismissal claim if their dismissal was a case of genuine redundancy.

Under the Fair Work Act 2009, the following criteria apply in cases of redundancy:

  1. The employer no longer requires the person’s job to performed by anyone because of changes in the operational requirements of the enterprise; and
  2. The employer has complied with any obligation under a modern award or enterprise agreement to consult about the redundancy; and
  3. It is not reasonable in all the circumstances to redeploy the employee in either the employer’s enterprise or an associated entity of the employer.

In a recent case heard by the FWC[1], four Staples workers were reinstated and awarded backpay after it was found their employer failed to meet its consultation and redeployment obligations, and instead

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