Unfair Dismissal – Your worker has been with you for HOW long?

How long does an employee have to be employed before they’re eligible to make an unfair dismissal claim?  The short answer is “that depends on the size of your business.”  If you’re a small business, the employee will have 12 months before they can claim eligibility. If you employ more than twelve employees, they will only have six months. But how is that six months calculated?

 

In Emma Wells v ABC Blinds & Awnings [2016] FWC 8260 the worker was employed between 4 February 2016 and 4 August 2016. She was originally engaged as a casual employee for the first three months and was later offered a permanent position, which she retained for another three months.

 

It’s important to note that during her casual employment, the worker worked regularly on a roster based system and took two days of unpaid leave within this period. 

 

The worker was sacked shortly after arriving at work on 4 August 2016 – exactly six months after her first day of work with the Employer.

 

The Employer argued that 1) the Applicant’s service as casual employee should not be included when calculating continuous service and 2) if the casual employment were deemed to be included, her continuous service would not add up to six months as she had taken two days off during that time. 

 

The Fair Work Commission found that the Applicant’s employment was regular and systematic and therefore it could be included as part of her continuous service.

 

However, in light of the unpaid leave taken during her casual employment, the Applicant was found not to have served the minimum employment period, meaning she was not a person protected from unfair dismissal and her application was dismissed.  

 

So what are the lessons here?

1. A worker’s casual employment may be classified as continuous service for the purposes of the unfair dismissal laws depending on the regularity of their work schedule and also their expectations of future employment.
2. Any unpaid leave taken during casual employment will not break an employee’s continuous service, but it will also not contribute their continuous service with an employer.
    

If this all sounds too confusing and overwhelming, never fear! Call one of the workplace relations lawyers at Nevett Ford on (03) 9614 7111 for advice and assistance on all of your employment law matters. 

 

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Doctors Boss fined over $50,000 for threatening worker

The fact that an employer is a small business, that is having fewer than 15 employees, does not stop significant penalties being imposed upon it for proven breaches of the Fair Work Act.

Whatever size its business, an employer, must comply with the law.

This much is plain from the decision in FWO v Windaroo Medical Surgery Pty Ltd & Others (No 2) [2016] FCCA 2505.

In this case the Federal Circuit Court awarded penalties totalling $51,480 against the employer and two managers, who had been involved in breaches of the Act.

The employer threatened an employee doctor not to complain to the Fair Work Ombudsman about non-payment of his salary.

The doctor resigned and left Australia but the Fair Work Ombudsman took action not only to recover amounts owing to the doctor but also to ensure that employers understand that breaches of the Act have consequences.

The decision is a clear signal that employers and their managers, whatever their size, can expect stiff treatment for infringing a workers rights.

There are strong protections in the Fair Work Act to ensure that workers are not subjected to adverse action.  Employers should make sure they get legal advice from a workplace relations specialist before acting hastily. Equally workers who believe they have been treated unfairly should act quickly to protect their rights. Generally all rights to take action under the Act for unfair or unlawful dismissal must be done within 21 days of being sacked.

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Employer’s liability for the criminal conduct of its employees

 

The High Court of Australia in a recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 looked at the vexed issue of vicarious liability for institutions arising out of sexual abuse.

The majority of the High Court found that a criminal offence such as sexual abuse by an employee does not prevent the possibility that the institution will be liable vicariously.

The High Court determined that the relevant test to be considered is whether in this case the role of the housemaster placed him in a position of power and intimacy with a boarder, that gave the housemaster the occasion for the wrongful acts, and that because the housemaster took advantage of his role as housemaster, the abuse could be regarded as having been committed in the course or scope of his employment.

 Because much of the evidence to determine the actual role of the housemaster as assigned by the school has been lost, the school could not have a fair trial on the issue of liability.

The school was also prejudiced because the claimant conveyed the impression that he was not bringing proceedings and subsequently changed his mind.

Furthermore the claimant had brought actions against the direct wrongdoer and had resolved such actions.

Accordingly, it is clear that cases involving sexual abuse and the liability of an institution for the acts of its employees will be determined upon a careful consideration of the precise role of the employee and whether or not such a role gives the occasion for the wrongful act.

An examination of the role will include looking at the authority, power, trust, control and the ability provided by the employer to achieve intimacy with a victim.

 

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