Phil Brewin, Accredited Specialist - Employment Law, provided
insight for HC
Online regarding Coca-Cola
Amatil (CCA) and an unfair dismissal case.
For further queries about unfair dismissal, Fair Work Act or workplace
relations, please contact our employment and
workplace relations specialist...
Wednesday, 26 November 2014
Tuesday, 4 November 2014
Employers: don’t have a restraint clause in your contracts of employment? All may not be lost.
A recent decision of
the Federal Court in APT Technology Pty
Ltd v Aladesaye [2014] FCA 966 demonstrates that employees who attempt to use the
confidential information of their former employers in their new business
ventures can be restrained from doing so even if there was no formal restraint
clause in the their contracts of employment with their former employers.
When APT discovered
that Mr Aladesaye had established a business in competition with its own
(whilst still its employee) and was taking or using client lists and know how
he...
Are your job ads breaching the Human Rights Act?
Phil Brewin (Accredited Specialist - Employment Law) provided insight for HC Online regarding job ads and whether the use of specific language breaches the Human Rights Act?
For further queries about the Human Rights Act or workplace relations, please contact our employment and workplace relations specialist...
Thursday, 30 October 2014
Ignorance of the law is no excuse
The
Federal Circuit Court has sent a strong message to employers who are underpaying
their employees and claiming they were unsure of the legal minimum rates.
Judge
Heather Riley ordered a fine of over $70,000 against a hairdressing salon and
its directors for underpaying an apprentice over $8,000 in wages.
The
directors of the company repeatedly claimed they were misled and unaware of the
minimum wages and entitlements they were required to pay.
Employers
have a responsibility to know their obligations and pay employees...
Is it just me…or am I being bullied in the workplace?
Is someone at work making you feel harassed, humiliated
or intimidated? You might not be able to explain the experience, but you may be
the victim of workplace bullying.
It is often difficult to determine when it began, and it
can be even more difficult to explain exactly how it happens, but workplace
bullying has a real impact on its victims.
Victims of workplace bullying are often uncomfortable
reporting such behavior because they feel they can’t explain the nature of
their complaint properly or lack the requisite...
Sunday, 26 October 2014
Employees: be clear on what you’re applying for
When employees are dismissed they
are sometimes faced with a choice of which type of claim applies to their
circumstances for seeking a remedy under the Fair Work Act.
Have they been dismissed unfairly
so as to be able to apply under Part 3-2 of the Act?
Have they been dismissed in
contravention of their general protections so as to be able to apply under Part
3-1?
The choice is important. While
section 586 of the Act allows corrections or amendments to be made to
applications, the Full Bench of the Fair Work Commission has decided that...
Thursday, 2 October 2014
Federal Court Case: Chef comes to grief over schnitzels
In a recent decision of the Federal Circuit
Court a chef has been ordered to pay his former employer, a Hotel in North
Wollongong, $72,838 for breach of his contractual duty to act with fidelity and
good faith.
The Chef purchased schnitzels from his
wife’s business and charged his employer one dollar more than the he paid for
them.
The Chef originally sued his employer for
an unpaid bonus and leave. The Hotel counter claimed for its losses due to the
conduct of the Chef in acting in conflict with his obligations to his employer.
Wisely...
Employment Contracts: If it's not written it may not be in
MAJOR HIGH COURT DECISION ON EMPLOYMENT CONTRACTS
IF IT’S NOT WRITTEN IT MAY NOT BE IN.
Contracts of employment can be
oral, written, implied by law or be a combination of all three.
A written employment contract does
not necessarily contain all the terms that govern the employment relationship
as some terms may be implied by law.
The law that implies them can be
either legislation or law that has developed through court decisions, which is
known as common law.
An example of a term that could be
implied by legislation is...
Wednesday, 23 July 2014
FAIR WORK COMMISSION’S EOFY CHANGES
Employers and employees – take note of the changes to the
Fair Work Commission’s application fees, high income threshold and compensation
awards that came into effect on 1 July 2014:
Fair Work Commission
application fee
The Commission’s application fee to file an unfair dismissal
application, general protections application and anti-bullying application has
increased to $67.20 (see regulation
3.02 of the Fair Work Regulations 2009).
There has been no change to the time limit on making
applications involving a dismissal, which is 21 days...
Thursday, 3 July 2014
What a difference a direction makes
Two recent cases
demonstrate that how an employer deals with an employee whose behaviour and
performance are issues can make a difference when it comes to defending a dismissal
claim.
Employers must comply with
occupational health and safety laws and as part of that obligation to ensure
the safety and wellbeing of employees can lawfully direct that employees submit
to independent medical examinations to assess their fitness for work.
Lynette Burns was a support worker
with Sacred Heart...
Monday, 16 June 2014
Valid reasons for dismissal
Just in case you were wondering
what can be a valid reason for dismissal, recent decisions of the Fair Work
Commission demonstrate:
Being rude to customers: Heggart v South Newcastle Rugby League Club [2013]
FWC 4811.
Failing to comply with workplace
hygiene standards: Uoifalelahi v Teys
Australia Southern Pty Ltd [2013] FWC 9560.
Being persistently late for work: Riley v Go Electrical Pty Ltd [2014] FWC
1890.
Forcing...
Wednesday, 11 June 2014
Stress, shock and miscalculation all insufficient grounds for extension of time at the Fair Work Commission
The Full Bench of the Fair Work Commission has upheld a decision
by Commissioner Gregory preventing an employee with a general protections claim
against his former employer from filing his application one day late.
Section 366 of the Fair Work Act requires an employee to file a general protections application at the
Commission within 21 days after the dismissal took effect. This also applies to applications for unfair
dismissal remedy...
Sunday, 18 May 2014
Restaurant owners happy to pay less on Sundays
For workers in
the hospitality industry, rising early for a Sunday morning shift after
Saturday night’s revelry is worth it - if only for Sunday penalty rates.
This has been
the case since 1 January 2010, when the relevant modern award, the Restaurant Industry Award introduced the
penalty rate regime (see clause 34.1 ).
From 1 July
2014, however, Sunday penalty rates for many hospitality workers will reduce by
25%, following a Full...
Tuesday, 6 May 2014
Fair Work Commission makes one order from 151 applications in first 3 months of anti-bullying jurisdiction
In March 2014
we wrote about the addition of an anti-bullying jurisdiction to the Fair Work
Commission. To recap, from 1 January
2014, ‘workers’ (a broad term which includes subcontractors and volunteers) can
apply to the Commission for a stop bullying order. Applications are dealt with by a Commissioner
either by mediation, conference or hearing.
The
Commission reports on each of its jurisdictions on a quarterly basis. ...
Tuesday, 25 March 2014
Bullied before 1 January 2014? The Fair Work Commission has jurisdiction to make a stop bullying order, but your employer will need to be a corporation
In previous articles we have spoken
about the anti-bullying jurisdiction that was conferred on the Fair Work
Commission with effect from 1 January 2014, and who can take advantage of it.
On 6 March 2014 the Full Bench of
the Commission decided that behaviour that occurred before 1 January 2014 can
be used as the basis to apply for a stop bullying order: Application by Kathleen McInnes [2014] FWCFB 1440.
Ms McInnes filed an application...
Wednesday, 12 March 2014
Workplace bullying: the new jurisdiction
Since 1 January 2014 workers who
believe they have been bullied may apply to the Fair Work Commission for an
order to stop the bullying. A worker
includes an employee, a contractor or sub-contractor an outworker, an
apprentice or trainee, a student gaining work experience or a volunteer.
The definition of bullying is wide
and includes either an individual or a group of individuals who have been
subjected to repeated, unreasonable...
Social media: use at your own risk
Following from my previous article
on social media and how their use can affect ongoing employment I want to bring
to your attention the recent case of Wilkinson-Reed
v Launtoy Pty Ltd [2014] FWC 644.
Ms Wilkinson-Reed was the HR
manager at the Launceston Toyota, a position she had held for 18 years at the
time of her dismissal.
She was friends with the wife of
the current dealer principal.
The dealer principal...
Monday, 3 March 2014
Fair Work Commission upholds termination based on medium to high levels of cannabis use
A Woolworths subsidiary, Woolstar, regularly conducts
on-site drug and alcohol testing of its employees.
It terminated the employment of a storeperson
based solely on his testing positive for medium to high levels of
cannabis. Woolstar.
The Fair Work Commission (FWC) held in its
decision of 18 February 2014 that this factor alone represented "serious
misconduct" that would justify dismissal.
Notably, however,...
Tuesday, 4 February 2014
More on social medial and out of hours activity
Recently I wrote about social media
and how what employees do with them after hours can affect employment.
The decision in Pearson v Linfox Australia Pty Ltd [2014]FWC 446 confirms that where an employer’s reputation or the security of its
enterprise are at stake, this is certainly true.
Having learnt its lesson from the
experience with Mr Stutsel, see [2011] FWA 944 and [2012] FWAFB 7097, Linfox
implemented a social media policy and gave...
Wednesday, 22 January 2014
Performance not pursuit of workpalce rights real reason for ambo's dismissal
In a recent decision of the Federal Court of Australia
(Short v Ambulance Victoria [2014] FCA 3)
(15 January 2014) a claim by a paramedic that he was dismissed because he
vigorously exercised his workplace rights by making inquiries and/or complaints
about his employment was rejected.
The Court found that the paramedic’s dismissal had
nothing to do with the exercise of workplace rights but was clearly due to this
man’s behaviour.
The...
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