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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Employer penalised for deducting monies from wages

Late last month, a Victorian cleaning business learned that deducting or withholding monies from employees is not permitted except in very specific circumstances.


Oz Staff Career Services Pty Ltd employed 102 casual cleaners pursuant to the Cleaning Services Award 2010. The employer deducted monies from its employees’ pay for meals without authorisation on three occasions over two months.


After conducting an audit of the business, the Fair Work Ombudsman took legal proceedings in the Federal Circuit Court against the company and its chief executive officer. It was found that the employer contravened the Fair Work Act 2009 (Cth).


Under the Act, employer deductions are prohibited, unless the employee has provided written consent.  The employee must expressly agree to reimburse the employer for any costs to be deducted from any final termination payment and must specify the amount of the deduction. This authorisation can be withdrawn in writing at any time.


A failure to comply with these requirements may breach your obligations as an employer under the Act, leaving you liable to civil penalties of up to $61,000 per breach.


If you believe you are entitled to recover monies from employees for overpayments or permitted deductions, contact the Workplace Relations team to Nevett Ford on (03) 9614 7111 to ensure that you comply with your requirements as an employer and avoid the risk of litigation and penalties.

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Don’t take it so seriously – the difference between misconduct and serious misconduct

A pool supplies business in Sydney summarily dismissed its general manager for going “behind their back”, making disparaging comments about the business and “betraying the business”. Entram Pty Ltd accused its general manager of preventing a sale of business and breaching his implied duties to act in good faith.

Judge Shenagh Barnes of the Federal Circuit Court accepted the employee’s conduct amounted to misconduct; however, it was not found to warrant serious misconduct and, therefore, summary dismissal.

As a consequence, the employer was ordered to pay $30,283 in damages for failing to provide the employee with notice of termination.

For an employer, the key difference between terminating an employee for misconduct versus serious misconduct will be the provision of notice.

An employee who commits serious misconduct can be terminated on the spot and the employer will not be required to provide notice of termination.

An employee who is dismissed for misconduct must be provided notice of termination. They can be directed to work out their notice period or paid in lieu of notice, at the employer discretion.

As demonstrated by Jeavons v Entram Pty Ltd [2015] FCCA 3457 the consequences of summarily dismissing an employee for misconduct can be significant. Although the employee was terminated in June 2012, a judgment was not handed down until December 2015, meaning the business was in legal limbo for three and a half years. 

To protect your business and insure yourself against such penalties, speak to one of Nevett Ford’s workplace relations team members on (03) 9614 7111 about the right way to terminate an employee for misconduct and serious conduct.

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Redundant one day and offered alternate employment the next equals no redundancy pay

DRW Investments Pty Ltd v Richards [2016] FWC 461 is a decision in which a large transport company having lost a major hauling contract found work for affected drivers with the new contractor.


The affected drivers argued that they had been made redundant by their old employer entitling them to redundancy payments but the old employer disagreed.


Commissioner Sams found that the drivers had resigned from their old employer to take up work with the new employer. As a result their employment had not been terminated at the initiative of the old employer so as to bring into operation section 119 of the Fair Work Act.


Commissioner Sams also commented that redundancy pay was for a specific beneficial purpose and not meant as a windfall where employees, whilst being made redundant one day are offered and accept suitable alternative employment the next day.

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Can an employer change an employee's work roster?

Being penalised for unpredictability is not necessarily adverse action.

CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76 demonstrates that it is not unlawful for an employer to change an employee’s work roster where there is unpredictability in the employee maintaining the original roster even where that unpredictability arises from the employee taking carer’s or annual leave.

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Workplace issues and the 7-Eleven scandal

In light of the recent 7-Eleven scandal surrounding the exploitation and underpayment of its workers, the Chairman and Chief Executive Office of 7-Eleven have announced their resignations.

The lesson to be learned by all employers, regardless of the size, scope or structure of their business, is that there are significant financial and non-financial consequences for employers who breach their obligations to employees.

Regardless of their visa or residency status, employees in Australia are entitled to basic rights, such as payment of minimum wages. The minimum wage and working conditions for an employee will depend on their age, position, experience and the area of work in which they practice.

The minimum wage for employees can be found in an applicable modern award, enterprise bargaining agreement or employment contract.

An investigation into the 651 separate 7-Eleven franchises across Australia has found that franchisees were paying their workers, many of whom were on temporary working visas, half the minimum wage.

When an employer breaches their obligations under the relevant instrument, be it an award, agreement or employment contract, its past and present employees have several avenues available to them in order to recover lost wages, including;

• Lodging a dispute application to the Fair Work Commission;
• Filing a Workplace Dispute application with the Fair Work Ombudsman; and
• Taking legal action in either a State or Federal court with jurisdiction.

Such processes are often highly stressful, lengthy and expensive for employers to defend and employers risk significant penalties for breaching their obligations.

It is not only international workers that are vulnerable to exploitation, with the Fair Work Ombudsman receiving almost 600,000 enquiries per year, more than 150,000 of which are complaints regarding underpayments.

If you have received a complaint from an employee in relation to an underpayment, act quickly and repay any monies owed before the matter is escalated to the next level.

Nevett Ford lawyers are specialised in all areas of workplace relations and can advise you on your obligations in relation to payment of entitlements, as well as defending any underpayment complaints and actions.

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The Standard Employment Contract: A Cautionary Tale

 

It really is a case of ‘buyer beware’ with many business owners downloading or buying standard employment contracts and templates online in an effort to save time and money.

 

Small businesses with limited human resources training are turning to Google and other search engines instead of an employment lawyer.

 

Unfortunately, these standard templates are often outdated and in contravention of the Fair Work Act 2009 (Cth).

 

Some documents offer less benefits than the employee is entitled to receive and do not provide an employer with adequate protection from breach of contract or unfair dismissal claims.

 

The implication for employers includes the risk of penalties of up to $50,000 by the Fair Work Commission for breaching the minimum National Employment Standards.

 

An employment contract should provide employees with the correct leave entitlements and include all important details such as location and hours of work as well as notice requirements in the event of termination.

 

A properly drafted contract will ensure both parties are fully aware of their rights and in relation to leave entitlements and their obligations at the end of the employment relationship. 

 

Do the right thing by your business and your employees and contact an employment lawyer to review your employment contracts and ensure your business is protected from penalties.

 

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