Reflections on the diverse and inclusive workplace

The former Sex Discrimination Commissioner Ms Elizabeth Broderick recently commented on diversity and inclusion in the workplace at a conference held by the Australian Human Resources Institute.

Here are some of the things she emphasised:

1. If employees are to embrace change to make the workplace more diverse and inclusive then their employers need to lead the way.
2. She urged the creation of safe spaces where employees could share their views in a respectful, empathetic setting that did not lead to recriminations.
3. Don’t assume opponents of change have bad intentions. But they may see change as involving the loss of something that they have worked hard for and personally invested in.
4. The diverse and inclusive workplace needs to deal with the perception, if not the fact, of loss of security, stability, belonging and rituals as well as the positive changes meant to encourage diversity and inclusion.
5. She asked women who had been successful in challenging environments (“jocks in frocks”) whether they thought it was okay if their sisters or daughters had to go through the same experiences they did in order to succeed.
   For further advice on strategies to make your workplace diverse and inclusive please contact our team of workplace lawyers at Nevett Ford.

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But do I HAVE to (make redundancy payments)?

Sing it with me, Bob Dylan: the times they are a changin’.

For one reason or another, your business is undergoing significant operational changes and you need to make some of your workforce redundant.

So, who do you make redundant, how do you do it properly and, most importantly, what do you have to pay them?

1. Who you make redundant will depend on the reasons for the redundancy, as well as the size of your business and the nature of the restructure.
2. The proper process and procedure to be followed will depend on the terms of the employment contract and/or applicable modern award or enterprise bargaining agreement. 
3. Generally, you will not have to pay an employee redundancy pay in the following situations:

1. The employee was employed on a casual or fixed-term contract;
2. The employee has only been employed for less than 12 months; or
3. The employee was an independent contractor.

There are some exceptions to this rule and then some exceptions to those exceptions.

Also, those exceptions are not the only exceptions.

Put simply, redundancy can be incredibly complicated.

Get it right and get the experts to talk you through it.

Penalties of up to $54,000 for corporations and $10,800 apply to directors for breaching their redundancy obligations under the Fair Work Act 2009 (Cth) so it pays to pay up! (Though only when you have to, of course.)

Call the Workplace Relations team at Nevett Ford on (03) 9614 7111 and we’ll make it look easy. 

 

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Overworked and Underpaid: The reality behind George Calombaris’ Greek tragedy

 

In a brilliant piece of spin worthy of an election campaign, George Calombaris openly admitted to underpaying past and present employees over $2.9 million – and has maintained his positive public image.

 

From the papers to The Project, the popular Masterchef appeared everywhere, apologised for profiting from his workers and continued to accept bookings at his numerous Greek restaurants across Melbourne.

 

You would be forgiven for thinking that it’s all that easy – underpay, apologise, back to business as usual – but be warned, this is the exception, not the rule. 

 

Businesses that are found to breach the Fair Work Act 2009 are liable to penalties of up to $54,000 for corporations, per breach. This means that if you underpay 100 employees, you are liable to 100 lots of penalties. Directors also face penalties of upon $10,800 per breach.  

 

Last year, the Fair Work Ombudsman recovered more than $2.2 million dollars in penalties alone for underpaid employees.

 

For George Calombaris’ Made Establishment empire, the repayments will be made quickly and easily, as the investors in the business have continued to pledge their financial support for the company.

 

Other businesses are not so lucky and have had to enter into voluntary administration after being ordered to back-pay their workers.

 

If you are unsure of how much to pay your employees in order to fulfil your obligations under the relevant employment contract, modern award or enterprise bargaining agreement, talk to someone who knows the answer! Contact the workplace relations team at Nevett Ford for all your employment law questions on (03) 9614 7111.

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Not only the hair was short but the pay was too

A chain of Melbourne based hairdressing salons has been obliged to enter into an enforceable undertaking with the Fair Work Ombudsman to avoid prosecution after the agency uncovered widespread underpayment of employees.

In mid-2016 two former employees approached the FWO claiming that they had not been paid accrued annual leave on termination of employment.

One of the employees also alleged that penalty rates had not been paid for work on Sundays and public holidays.

The investigation the FWO conducted found that numerous employees had been underpaid a total of $88,000.00 over an eighteen month period.

The employer behind Best Cuts and Colours and What’s Up Hair agreed, as part of the enforceable undertaking, to write letters of apology to each of its underpaid employees and make a “contrition payment” to Monash Oakleigh Legal Service of $10,000.

Because the employer cooperated in the investigation the FWO thought that the best way of ensuring the underpaid employees received their correct pay was by having the employer enter the enforceable undertaking rather than prosecuting.

This case demonstrates the importance of employers knowing and complying with their obligations under a modern award.

If you are an employer who has had an inquiry from the FWO we have the lawyers who can advise you through the process.

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Unfair Dismissals and Penalties

The vast majority of applications for unfair dismissals are discontinued.

Generally, this means that employers and employees have reached agreement so that a formal decision or order of the Fair Work Commission is not required.

Where negotiation does not result in resolution, any order for reinstatement or the payment of compensation made by the Commission can have further consequences for an employer if it is not obeyed.

If you are an employer and ordered to pay $2,200 as compensation for a dismissal found to be unfair, you would be required to pay it even if you needed time to do so and even if you disagreed with the decision.

You would not put yourself in a position where the Fair Work Ombudsman successfully applied to the Federal Circuit Court for $47,000 worth of penalties because your failure to pay $2,200 was a breach of section 405 of the Fair Work Act 2009 (Cth).

This has happened and is a cautionary reminder to employers.

 

 

 

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Annualised salary and award covered employees

An employer which offers employees contracts with annualised salaries to compensate for all entitlements to which they are entitled under an applicable award needs to beware.

The applicable award may provide that an employer must state in writing which provisions of the award will be satisfied by the payment of the annualised salary.

If the employment contract does not state what entitlements are covered, an employer may find itself facing a claim for overtime, allowances, penalty rates or annual leave loading.

Nevett Ford can assist in avoiding this problem by conducting “health checks” of employee contracts for award covered employees.  

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Dirty talk costs a career

 

A police officer who was dismissed for serious misconduct for breaches of the New South Wales Police Force Harassment, Discrimination and Bullying Policy and Guidelines has failed in his attempt to have his employment reinstated: Torres v Commissioner of Police.

Serious misconduct was constituted mostly by Mr Torres asking junior colleagues personal and intrusive questions about sexual activity.

Mr Torres had an impressive twenty six years of service including a commendation for bravery.

This, however, was not able to save him.

His explanations that there was a culture of dirty talk where he worked and what he admitted to saying was meant as a joke were not accepted.

Workplaces must be safe for employees. 

Discussions that are sexually explicit and seen as sexually harassing cannot be tolerated.

In this case the employer could point to policy guidelines that made clear the rules and expectations in the workplace.

In our experience many employers do not have appropriate written policies and procedures in place and don’t have proper training to ensure that any policies are implemented.

Employers must educate their employees about how to conduct themselves at work and have clear policies that state what is in and what is out for conversation and behaviour.

Nevett Ford Melbourne lawyers can provide timely and proactive advice to employers on appropriate discipline and dismissal of employees based on misconduct in the workplace.

 

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DOUBT ABOUT STATUS OF CASUAL EMPLOYMENT

A recent decision of the Federal Circuit Court has cast doubt on whether casual employment is in fact that: Skene v WorkPac Pty Ltd [2016] FCCA 3035.

Mr Skene was employed as a dump truck operator by WorkPac, a labour hire company, which supplies workers to mines. His contract of employment with WorkPac designated him as a casual employee and he was paid a fixed hourly rate.

During his employment with WorkPac he had two placements at mines in Queensland. The second mine operator removed him from the mine and he did no further work for WorkPac.

After his employment terminated Mr Skene issued proceedings against WorkPac seeking payment of accrued annual leave, other consequential entitlements and pecuniary penalties.

Judge Jarrett found that, according to his contract of employment with WorkPac, Mr Skene was a casual employee. This, however, did not mean that Mr Skene could not be entitled to annual leave and other entitlements. Although section 86 of the Fair Work Act states that provisions relating to annual leave apply other than to casual employees Mr Skene needed only to establish that his employment was something other than casual to receive entitlements associated with permanent employment.

Judge Jarrett identified six factors that weighed in favour of Mr Skene’s employment being other than casual:

1. It was regular and predictable under 7 days on and 7 days off rosters set 12 months in advance;
2. Apart from one short period arranged with the second mine owner, was continuous;
3. It was facilitated by travel and accommodation provided at no cost to him;
4. The FIFO arrangement was inconsistent with the notion that Mr Skene could elect the days on which he worked without making the necessary arrangements with the mine owner;
5. There was an expectation arising under the contract of employment between him and WorkPac that he would be available according to the roster provided to him until the assignment was complete; and
6. The hours of work were regular and certain as demonstrated by his pay slips.
   As against that Judge Jarrett found three factors that weighed in favour of Mr Skene being a casual employee:
7. He was paid by the hour and had to submit weekly time sheets;
8. His employment was terminable on one hour’s notice; and
9. WorkPac designated his employment as casual and Mr Skene was aware of and accepted that.
   Ultimately, Judge Jarrett found that the essence of casual employment, which is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work, was missing in the employment relationship between Mr Skene and WorkPac.
   As the employment was something other than casual, Mr Skene became entitled to annual leave, which is not a benefit of casual employment.
   Although the decision could be said to be limited to its particular circumstances, it might be seen as applying in circumstances where employer and employee believe that casual employment applies but in reality given the certainty of hours and absence of choice as to when an employee works, the employment relationship is in fact other than casual.

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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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You need to finish what you start

The Fair Work Commission is committed to “a fair go all round”. This does not mean, however, that it is there purely for the convenience of one party to an application.

This much is demonstrated in Newbey v Atlas Group Pty Ltd [2016] FWC 5246.

On 22 April 2016 Mr Newbey applied for an unfair dismissal remedy arising from the termination of his employment at Atlas.

When Atlas lodged its response saying that the termination was a genuine redundancy the commission listed the application for conferences and directions, neither of which Mr Newby attended or complied with over a two month period.

As a date for participation or compliance approached, Mr Newbey, who had obtained another job in the meantime, routinely emailed the commission that he was unavailable requesting another time.

Matters came to a head when he had not lodged documents by 27 September 2016 in compliance with directions earlier given. When the commission could not reach Mr Newbey and there was no explanation from him, it dismissed his application under section 399A of the Fair Work Act.

The lesson for dismissed workers is that they must be prepared to see their applications through.

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Fixed means just that

A security guard employed at the Manus Island Detention Centre has been found not to have been unfairly dismissed when extensions to a fixed term contract of employment ended.

The decision is reported at Cowan v Wilson Parking Australia trading as Wilson Security [2016] FWC 5768.

Mr Cowan was employed as a security guard at Manus between March 2014 and April 2016.

His original contract of employment had an end date of 30 September 2014.

When the contract was about to end he was offered a further contract, which took him to October 2015 and then two further extensions that took him to the end of April 2016.

Each time his employment was extended, Wilson specified that there was an end date and as a consequence Mr Cowan would not be entitled to be paid a redundancy if his employment was not extended.

In the end Wilson did not extend Mr Cowan’s employment because a police certificate that Mr Cowan had supplied when he first started with Wilson showed that he had a conviction for driving offences and Wilson concluded that Mr Cowan would not be able to obtain a security licence.

Along with Mr Cowan, Wilson also let five other employees go, whose fixed term contracts with extensions had also expired.

Although Commissioner Wilson acknowledged that a fixed term contract could be a sham he was satisfied that that was not the case with Mr Cowan.

Wilson did not want to commit to permanent employment because at the time it was negotiating with Transfield, which held the head security contract with the Australian Border Force to continue to supply guards to Manus Island.

Against this backdrop and letters from Wilson to Mr Cowan each time he had an extension that his employment would end unless further extended, Commissioner Wilson had no difficulty in deciding that Mr Cowan’s employment ended because of the effluxion of time and not at the initiative of the employer, Wilson.

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Please ask nicely

Peter Lambos was a bus driver with the ACT Internal Omnibus Network.

In September 2014 he was having problems with his driver’s seat and complained about it to a manager.

Three months later, the problem persisting, he contacted his employer’s workplace health and safety coordinator.

There was a dispute as to what Mr Lambos actually said to the coordinator in their conversation but it was not disputed that he mentioned “Columbine”, a reference to the spree killings at Columbine High School in the United States in 1999.

Mr Lambos was suspended on full pay whilst the employer investigated what it regarded as serious misconduct constituted by:

1. Mr Lambos allegedly saying “If ACTION touch me this will be another Columbine”;
2. Inappropriate behaviour to colleagues in breach of the respect equity and diversity framework constituted by accusing management of being corrupt.

After the investigation was held, which took some months, Mr Lambos was terminated from employment for serious misconduct.

Commissioner Kovacic found the serious misconduct established and that the consequent dismissal was not a harsh, unjust or unreasonable response: Lambos v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 3835.

All Mr Lambos wanted was a driver’s seat that did not “bottom out” causing jarring injuries but the way he went about trying to get something that was perfectly reasonable led to him not only not having a proper seat but also not having a proper job.

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Don’t be late! These are the risks of filing an unfair dismissal application out of time.

If you are terminated from your employment, you will only have 21 days from the date the dismissal takes effect to file an unfair dismissal of general protections application with the Fair Work Commission.


The Fair Work Commission is notoriously strict with its application filing deadlines and will only extend the time for lodgement in exceptional circumstances.


In the matter of Langtry and Mitolo Group Pty Ltd, the applicant filed his application seven weeks’ out of time. Mr Langtry’s explanation for his late lodgement was that he was unaware of the existence of the unfair dismissal jurisdiction within the Fair Work Commission and it was not until discussing the matter with a family matter that he learned he could make such an application. As we all know, ignorance of the law is no excuse and in Langtry and Mitolo Group Pty Ltd, the application was not allowed to be filed out of time.


The 21 day lodgement period is calculated on calendar days, rather than business days, so if you feel you have been unfairly terminated, act quickly!


Contact the Workplace Relations team at Nevett Ford on (03) 9614 7111 to ensure you are fully aware of your rights and entitlements. 

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The importance of hospitality venues getting proper advice about pay obligations

It is most important that employers make sure they understand what wages they need to pay their employees, including penalty rates and payments for public holidays.

This issue has recently been highlighted with a restaurant chain being obliged to reimburse staff $21,700.00 for underpaying employees for their Christmas day entitlements.

Many underpayments are inadvertent but it is important to ensure that restaurants comply with their minimum obligations under the Australian Workplace laws.

Employees who wish to ensure they comply with their workplace obligations should not hesitate to contact the Workplace Relations department of Nevett Ford Lawyers.

Nevett Ford Lawyers provide advice on all aspects of Employment Law.

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Sticks and stones may break bones but names can get you sacked

Many employers have policies or codes of practice to govern the relationships between employees.

Employees who abuse their colleagues or gossip about them can face dismissal as a sanction because what they say is a breach of the employer’s polices or codes.

The Fair Work Commission recently heard two unfair dismissal applications that related to misconduct based on what employees said.

In Sayers v CUB Pty Ltd [2016] FWC 3428, the Commission found that a dismissal based on an employee swearing and racially abusing a colleague was justified.

In Beamish v Calvary Health Care Tasmania Ltd [2016] FWC 1816 the Commission found that a dismissal based on emails gossiping about or disparaging a manager was not justified although the emails showed a lack of judgment.

In both cases the Commission found that what Mr Sayers and Ms Beamish said were breaches of their respective employer’s policies or codes on how to behave towards others.

The language Mr Sayers was found to have used was threatening, racially motivated and littered with four letter words.

Mr Sayers knew what the correct procedure was for complaining about a colleague: racially abusing him was not the way to go.

Fifteen years of unblemished service with CUB and an otherwise good relationship with management did not help Mr Sayers.

The Commission, like CUB, showed no tolerance for racial abuse and the dismissal was upheld.

Ms Beamish had been sarcastic and disparaging in her comments about a manager. Some of what she said was funny – but at the manager’s expense.

Although not abusive or racially motivated what she said was still contrary to Calvary’s values distilled in its code of conduct as “hospitality, healing, stewardship and respect”.

Ms Beamish apologised at the first opportunity and recognised her behaviour as immature and inappropriate.

The Commission was prepared to reinstate her because it was satisfied she would be “welcome back by the overwhelming majority of employees”.

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Lost your licence? Lose your job

If an employee loses his driver licence where driving is a part of his work, he can be fairly dismissed for misconduct. This much is demonstrated by the decision in Zeiter v Melway Bin Hire and Demolition Pty Ltd [2016] FWC 2823.

Mr Zeiter was stopped by police for using a mobile phone while driving. During the stop the police notified Mr Zeiter that his licence had been suspended for a period of three months.

When Mr Zeiter told his employer about the difficulties with his driver licence the employer effectively terminated him but did not tell him for nearly a month afterwards.

At the hearing of the application the employer argued that Mr Zeiter’s failure to maintain a driver licence was a frustration of the employment contract so that there was no dismissal, as opposed to a breach of the employment contract for which there could be a dismissal.

Commissioner Ryan thought the better analysis was that of breach of contract.

He found that the employer had not acted in a procedurally fair way towards Mr Zeiter but that the shortcomings were not sufficient to find that the dismissal had been harsh or unjust or unreasonable.

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Reinstatement is the primary remedy

Under the Fair Work Act 2009 the primary remedy for an unfair dismissal is reinstatement of the employee to employment.

Yet even where reinstatement is sought, the Fair Work Commission does not often order it.

One reason seems to be that employers consistently argue that reinstatement is simply not viable because the trust and confidence necessary for a continuing employment relationship has been broken.

The decision in Singh v Metro Trains Melbourne Pty Ltd [2016] FWC 2291 demonstrates the circumstances in which the Commission will order reinstatement.

Ms Singh was a station assistant who was dismissed for the alleged theft of lost property.

The Commission found Metro’s investigation flawed and that short of stealing the lost property Ms Singh had dealt with it in breach Metro’s lost property policy.

Ms Singh had an impeccable work record over 10 years of service and maintained her right to be reinstated as the proper remedy for her dismissal.

Although she had applied for other jobs after she was dismissed she had not been successful in obtaining any.

What influenced the Commission in ordering reinstatement were two factors:

1. Distrust of an employee by the employer cannot of itself be a sufficient reason to decline reinstatement, otherwise no employee would ever be reinstated where the employer believed or suspected the employee had engaged in misconduct.
   
2. Metro was a large employer and there were many roles within it that Ms Singh could perform at different locations so that the element of trust and confidence was of diminished importance.

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Gun mistake not grounds for summary dismissal

An Australian champion clay shooter, who had Senator David Leyonhjelm as his support person at the meeting to discuss his future employment was found to have been fairly dismissed but entitled to notice: Waters v Goodyear Australia Pty Limited [2016] FWC 1991.

Mr Waters breached a number of his employers’ policies when he acquiesced in a person whom he was mentoring in clay shooting bringing a gun into the vicinity of his workplace.

After a comprehensive investigation, the employer found that Mr Waters’ actions constituted serious misconduct.

Whilst Commissioner Cambridge agreed that Mr Waters had breached the trust and confidence inherent in the employment relationship to a degree to warrant dismissal he was not satisfied that Mr Waters had set out deliberately to do so in the incident giving rise to his dismissal.

As his employment contract provided for four weeks notice, Mr Waters was awarded compensation for that period.

The case also suggests that the way in which a support person acts at a meeting can affect a finding on the degree to which the employment relationship has broken down and cannot be retrieved.

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