BlandsLaw - Blog posts from employment law
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Finding the right employee for your company is not always easy. Sometimes it is tempting to make promises during the recruitment process in the hope that new employees will prefer your company over others, but employers need to tread carefully; false, misleading or deceptive conduct designed to induce someone to take a job is unlawful under Australian Consumer Law.

Under s 31 of the Competition Consumer Act, a person must not, when offering employment, engage in conduct that is liable to mislead on the availability, nature, terms or the conditions of the employment. Common examples of misleading conduct have involved employers making representations or statements regarding remuneration, career progression, non-financial benefits, the company’s financial position and the length of the employment period.

It is necessary to establish that the employee 

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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 Fair Work Commission has released its 2016 Annual Minimum Wage Decision, awarding a 2.4% increase to Award-reliant employees.

The FWC decision increases the national minimum wage to $672.70 per week, or $17.70 per hour. This constitutes an increase of $15.80 per week or 41 cents per hour being the equivalent of a 2.4% minimum wage increase. All award rates of pay will increase by 2.4% with effect from the first pay period commencing on or after 1 July 2016. Weekly wages should be rounded to the nearest 10 cents.

The FWC panel pointed to historically low levels of inflation and wages growth as factors in the modest increase in the minimum wage, and stated that this increase was unlikely to have a negative impact on employment.

Who is affected?

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Employers generally want to ensure that a potential employee is honest, reliable and trustworthy. Conducting a police check can be a good indication of whether or not a job candidate possesses these qualities; however this may not always be reasonable or appropriate.

What needs to be considered when conducting criminal history police checks?

The first issue to consider is why the police check is required. The employer should ensure that the information is relevant and necessary, and that it will assist them to make a decision about whether the candidate is able to perform the role for which they are being considered and should be offered the job.

Secondly, the employer should take privacy considerations into account. If a criminal history check is to be conducted, the applicant should be informed from the outset about the police check and the timing of when this will occur. Employers also need to ensure that the information collected from the police check is only seen by the appropriate person(s), and that this information

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Ongoing social changes have paved the way for leniency when it comes to swearing in the workplace. The question becomes when does swearing in the workplace amount to misconduct. The answer largely dependents on workplace culture and the context in which it is used.

A recent decision by FWC highlights the issue of where to draw the line between swearing and grounds for dismissal. In this case[1], an employee of Kailis Broswas dismissed for abusively swearing at his supervisor over an OH&S incident, which caused him to injure his lower back. Following the injury, he directed his anger towards his supervisor which included a repeated use of the ‘f’ word in an aggressive manner.  FWC found that whilst there may have been an existing culture of swearing, the fact that the employee had already received a warning for swearing in the past, coupled with the aggressive nature of the incident, ensured there was a valid reason for his dismissal.

Whilst this case affirms the standpoint that employers will

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Unfortunately, instances of harassment and discrimination are common practices within the workplace. Often employees participate in acts of wrongdoing that contravene laws that aim to prohibit all discriminatory conduct. Significant implications for employers can arise if they are found to be vicariously liable for the wrongdoings of their employees. Nevertheless, an employer may be able to protect itself against vicarious liability and avoid paying substantial damages for an employees conduct if it can be established that all reasonable steps to prevent unlawful acts occurring in the workplace were in fact taken.  

The issue of what amounts to ‘reasonable steps’ is one of contention, given the operational and size differences from one business to another. Therefore, it is extremely important for employers to be aware of all they can do to best cover themselves from being held liable. A recent case, involving Centerprise Resource Group, highlights this issue for employers. The NT Anti- Discrimination tribunal found Centerprise to be vicariously liable for their employee’s offensive race-based language towards another employee

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The issue of when it is and is not okay to terminate an employee for conduct that occurs outside of the workplace can be a tricky one.  A recent case considered the impact of criminal charges.

The employee was a young apprentice butcher working in a small retail store in regional NSW.  He was charged by police with being an accessory after the fact to murder. His employer subsequently spoke with his parents and said there was concern about the effect of the criminal charge on the business. The employee was terminated and later brought an unfair dismissal application.

The Commissioner considered the initial jurisdictional issue of whether or not the dismissal was in accordance with the Small Business Fair Dismissal Code (the ‘Code’) and held that it was not. The Code requires a two step process for serious misconduct. It is not enough to simply hold a belief that the employee engaged in the alleged misconduct. The second step is to assess if that belief is in fact reasonable

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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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Overview of General Protections – Adverse Action

Adverse action claims are not nearly as common as unfair dismissal claims, and in many ways they are more complex.

The Fair Work Act 2009 (Cth) sets out a number of General Protections which include:

(i)            the capacity to exercise or have a workplace right,

(ii)           engaging (or not) in industrial activity and

(iii)          belonging (or not) to a trade union.

A person cannot be treated adversely for these things. Adverse treatment includes termination, demotion, discrimination or other action that treats someone less advantageously than another person because of a prohibited reason.

The onus rests on the Applicant to make out the elements of a General Protections claim. However once the claim is made out the Respondent has to then demonstrate that the action or decision was not taken for a prohibited reason.

There are a number of differences between adverse action and unfair dismissal claims:

-       Different eligibility criteria

Only certain employees are eligible to lodge an Unfair Dismissal application. General protections

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We have written before about workplace investigations and their utility to help resolve complex disciplinary matters. A recent case has highlighted the potential consequences of an unnecessarily lengthy investigation.

In Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226 a security guard was summarily dismissed for falling asleep while on duty. Senior Deputy President O’Callaghan agreed that there was a valid reason for termination. However the employer took six weeks to complete an investigation into the incident while the employee continued on in his role. The employee was then terminated for serious misconduct six weeks after the incident occurred. It was held that the employer’s response was disproportionate given that it had taken them six weeks to make a decision to terminate during which time the employee continued to work.

An order was made for reinstatement and compensation although the compensation was reduced significantly to take into account the misconduct.

Lesson for employers

Workplace investigations can provide a useful and efficient process to handle a range

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Following a small number of other bullying orders, the Fair Work Commission has just made its first formal finding in a bullying application ([2015] FWC 5272).

Two employees of a small real estate business lodged bullying applications with the Fair Work Commission. They alleged that they had been bullied by a property manager who had belittled, humiliated, undermined and sworn at them.

The employees had made an internal complaint which had been informally actioned and was not conclusive. The two employees had not returned to work and had lodged workers compensation claims for their associated medical costs.

The Commissioner accepted the employees’ account of what had occurred and agreed that there was an ongoing risk of the conduct continuing. The ongoing risk aspect was interesting because the manager had subsequently resigned her position and then accepted a role within an associated business. Complicating matters the manager had since returned temporarily to her previous office location on a ‘secondment’ arrangement. Accordingly, the Commissioner deemed it appropriate to make orders to effectively

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A decision made by the Fair Work Commission has provided some guidance around what conduct will be treated as ‘at work’ in the new bullying jurisdiction.

The new bullying laws, in the Fair Work Act, mean that a worker can make an application and seek orders if they are being ‘bullied at work’.

The case involved a bullying application by three different workers against the Maritime Union of Australia (MUA) and DP World, a port operator. A full bench considered the definition of ‘at work’ in the context of allegations concerning inappropriate Facebook comments.

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A recent Federal Circuit Court case* found that both the employer and the HR Manager had contravened the Fair Work Act (FWA) with the effect that both may face penalties for the contravention.

The case involved an employee who worked in a South Australian plant of a large glass bottle manufacturer. The employee sustained a shoulder injury at work. Following a significant period of time involving workers compensation and rehabilitation, the employer and the employee entered into a new contract. The new contract was for a modified role taking into account the employee’s limitations resulting from the injury. Nearly a year and a half after this arrangement was put in place the employer was advised by WorkCover SA that they no longer needed to provide alternative arrangements for the employee. The employer, through the HR manager, provided the employee with a termination letter and failed to pay out the full notice the employee would have been entitled to under the FWA.

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Internships or work experience placements can be a great opportunity for young people or those new to an industry to gain some of the necessary work experience needed to start a career.  However, issues can arise if the companies or businesses offering such placements take advantage of the situation and start using their interns to do regular work that the company should be paying for.

The Fair Work Ombudsman (FWO) recently brought a case against Crocmedia Pty Ltd (‘Crocmedia’), a developer of television and radio programs in Victoria (Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140). The company was fined $24,000 for failing to pay two university students who initially did a three week placement and then went on to continue doing what was essentially unpaid work for the company. Following their three week placement, the two students were paid approximately $75 a shift for ‘expenses’ which fell well short of the minimum wage and other entitlements that they should have received for the work performed.

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A senior employee who attended a work-related conference and exhibited signs of drunkenness at 9am on the morning following a night out drinking with work colleagues, has successfully been awarded nearly $300,000 in damages after being wrongly dismissed for serious misconduct.

The employee, a senior manager within the company, spent the night out drinking with work colleagues before falling asleep outside his hotel room in the early hours. He subsequently attended the work training conference, being held in the hotel, whilst still apparently drunk. The alleged behaviour included slurred and louder than normal speech, using animal noises when describing a recent safari and smelling of alcohol. The employee’s behaviour became the subject of an investigation which concluded that he should be summarily dismissed.

Ultimately the issues to be decided by the court rested on the correct interpretation of the employment contract and whether the conduct was properly considered serious misconduct.

Why was the behaviour held not to be “serious misconduct”?

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The Federal Circuit Court has recently found a sole director responsible for the underpayment of a long-term employee in Scotto v Scala Bros Pty Ltd & Anor [2014] FCCA 2374.

The employee worked for the delicatessen/ café for nearly 30 years and his claims included the failure of the employer to pay the minimum wage, allowances and overtime; failure to provide payslips and failure to make superannuation contributions throughout this time period.

The employee also alleged that his former employer did not pay out his accrued entitlements when his employment ended in 2010. The total amount claimed was just over $1.5 million plus civil penalties for non-compliance with the legal requirements. The case was brought against both Scala Bros as the employer and against the sole director personally in her capacity as director and manager of the business.

Wading through a messy tangle of facts and complicated family issues, Judge Cameron accepted the validity of a number of the claims although noted that some of the older claims could no

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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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