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. 

 

Read More»

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.

Read More»

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.

 

 

 

Read More»

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.

 

Read More»

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.

Read More»

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. 

 

Read More»

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.

Read More»

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.

 

Read More»

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”.

Read More»

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.

Read More»

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.

Read More»

Don't wait until it's too late!

If you have been dismissed from your employment, you only have 21 days from the day your dismissal takes effect to file an unfair dismissal or general protections application with the Fair Work Commission.

 

The Commission will accept out-of-time applications only in exceptional circumstances and these can be difficult to prove. In the recent case of Martin v LJ Hooker Colleroy, the Applicant filed his application nine days past the lodgement date. He provided several different reasons all contributing to his late filing time, including:

 

• The pressure he suffered at work while employed;
• The time consumed searching for alternate employment;
• Needing to care for his ill father;
• Spending time with his wife and children;
• The difficulty of meeting with and engaging a lawyer;
• The time taken calculating his claim and back pay entitlements; and
• The interruption of the Easter holidays.

None of these reasons were accepted, even collectively, as falling within the definition of 'exceptional circumstances' as required under the Fair Work Act 2009 (Cth).

 

As a result, the application was rejected by the Fair Work Commission and the applicant was denied the opportunity to have his matter heard and dealt with on its merits.

 

Don't make the same mistake - make sure you file your application within 21 days of your dismissal taking effect! Contact the Workplace Relations team at Nevett Ford on 9614 7111 to ensure your application is drafted and filed quickly, efficiently and always before the due date!

Read More»

Labour Hire Employee dodges the short end of the candy stick

Labour hire companies operate to connect potential employees to businesses of a particular industry that matches their skillset and attributes. Suitability is attained when the attributes of an employee overlap with the operational needs of the business, known as the host employer.

However, the nature of the relationship between employee and labour hire company, in the presence of the third party host employer, can pose legal concerns and implications for the parties involved.

Recently this situation arose in a case before the Fair Work Commission. Labour hire company Adecco Industries found itself liable for the unfair dismissal of an employee who was dismissed by Nestle, the host employer. It is not in dispute that this employee was treated unfairly; she was not offered the rights that the Fair Work Act (1999) affords an employee faced with the prospect of termination.

Despite Adecco’s assertion that the employee remained contracted by Adecco and was merely removed from Nestle, the Fair Work Commission determined that the labour hire relationship cannot be use to abrogate the responsibility to ensure fair treatment of employees.

It was deemed that if the dismissal of an employee would be considered unfair if executed by the Labour Hire company directly, then such a dismissal does not cease to be unfair if executed by a third party to the employment relationship. If such a determination were not reached, it would be effectively permissible for labour hire companies to contract out of the legislative provisions regarding unfair dismissals.

Despite the involvement of host company Nestle, the Fair Work Commission requires that Adecco remedy the employee for the unfair dismissal.

Whilst the employee ultimately enjoys compensation candy, it seems that Adecco must endure the cane. 

To discover the best way to insure and protect your business against such penalties when terminating an employee, speak to one of Nevett Ford’s workplace relations team members on (03) 9614 7111.

Read More»

Dismissal during notice period deemed unfair

Brunner v Amalgamated Marketing Pty Ltd [2015] FWC 7837 was a case where a sales executive resigned on a Friday giving three week’s notice and on the following Monday, when she was absent on sick leave, the employer asked her to return the office keys, mobile phone and her uniform, which she did. He then paid the employee a week’s notice because he formed the view the employee having resigned did not intend to return to work.

Senior Deputy President Richards found that the effect of the request was to deprive the employee of her tools of trade preventing her from working the notice period. He awarded the employee compensation for the balance of the notice period being two weeks because there was no valid reason for dismissing the employee and preventing her from working the notice period.

Read More»

Workers are Employees not Contractors

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd and others [2015] HCA 45 demonstrates that on arrangement where an enterprise engaged the services of cleaners through a labour hire company and represented to the cleaners that they were contractors not employees, is contrary to section 357 of the Fair Work Act 2009 as sham contracting.

Previously, sham contracting was thought to apply only to misrepresentations the employer made to the worker and not to extend to misrepresentations by a third party, which uses the workers’ services, to the workers status as employee.

Read More»

THE FAIR WORK COMMISSION AND WORK PLACE BULLYING

 
It is now just over two years since the Fair Work Commission was granted the ability to make stop bullying orders under the Fair Work Act 2009.

Fair Work Commission statistics for 2014 – 2015 show that the Commission:

• received over 150,000 unique website hits regarding anti-bullying;
• dealt with over 6,300 telephone enquiries;
• processed 694 applications; and
• finalised 60 applications by a formal decision.

In Bowker v DP World Melbourne Limited [2015] FWC 7312, Deputy President Gostencnik made extensive orders to facilitate the return to work of three dock workers he found had been bullied by colleagues and union representatives and to monitor the situation to prevent further bullying occurring. 

Read More»

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.

Read More»

Even a small mistake can have big consequences for employers

 

Coffey Projects (Australia) recently learned the hard way that there are serious consequences with providing employees incorrect information in relation to their workplace rights and entitlements.

 

Despite employing a Human Resources manager, Coffey Projects relied on outdated policies that did not reflect amendments to the Fair Work Act 2009 (Cth) and provided an employee with incorrect information about his parental leave entitlements. 

 

The outdated policy incorrectly stated that parental leave was only available to “primary” caregivers. As he believed he was not entitled to parental leave, the employee took a combination of annual leave and unpaid leave in order to care for his newborn twins.

 

When he was due to return to work, he was only offered part-time hours and later made redundant. The employee successfully argued that had he been provided the correct advice, he would have applied for parental leave which guaranteed his right to return to work on a full-time basis. He then would have been entitled to be paid out his entitlements as if he were a full-time rather than a part-time employee. Coffey was order to pay the difference between these amounts being $109,000.

 

The outdated policy was in breach of the National Employment Standards and as a consequence, Coffey was ordered to pay their former employee almost $170,000 consisting of unpaid wages and redundancy pay which he would have received had he been granted parental leave. 

 

Although the Court found the employer did not act recklessly or knowingly, it was still penalised and ordered to pay an additional penalty of $8,800.

 

Read More»

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.

 

Read More»

Did you know that as an employer, you can be held responsible for your workers even when they are not working?

 

The Fair Work Commission recently heard a case in which three employees sought an order to stop bullying at their workplace. Their employer, DP World Maritime Limited, sought to strike out their application on the basis that the bullying behaviour took place when the employees were not ‘at work’.

Numerous employees had engaged in telephone calls and Facebook messages concerning their colleagues’ union memberships and made derogatory comments to and about them. These exchanges took place both during and outside of office hours in several locations both in and outside of the workplace.

 

The Commission had to consider the definition of the expression ‘while the worker is at work’ and what it encompassed. The Commission concluded that the concept of being ‘at work’ includes instances in which the employee is performing work and also when they are engaged in any other activity permitted by their employer, such as taking a meal break. The meaning is not confined to the workplace and includes any location or time of day when they are performing work. 

 

In this case, the Full Bench held that the behaviour took place while the employees were ‘at work’ leaving their employer at risk of liability for their actions.

 

If allegations of bullying have been made in your business, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to one of our workplace relations team about protecting yourself from legal action.

 

Read More»