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.

 

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Coca-Cola Amatil loses out on an unfair dismissal case

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 specialists.

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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 from the dismissal taking effect. 

High income threshold

To bring an unfair dismissal claim, employees must have been employed for over 6 months (or 12 for those employed by Small Business Employers) and either earn under the high income threshold, or have their employment covered by a Modern Award or an Enterprise Agreement (see section 382 of the Fair Work Act 2009). 

The high income threshold is now $133,000 (see regulation 2.13 of the Fair Work Regulations 2009).

The high income threshold includes wages, salary sacrifice amounts and non-monetary benefits.  

It does not include reimbursements, employer superannuation contributions, or payments that cannot be calculated in advance, for example bonuses that are reliant on an employee’s performance.

Compensation limits

For unfair dismissal applications relating to dismissals occurring on or after 1 July 2014, the Commission can award an employee a maximum of 26 weeks pay for compensation for their lost earnings.  This amount cannot exceed $66,500, which is half of the high income threshold (see section 392 of the Fair Work Act).

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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 its employees training in it.

Mr Pearson was dismissed for his failure over time to comply with a number of Linfox policies and for refusing to sign an acknowledgement that he had read and understood the newly implemented social media policy.

In his evidence at hearing, Mr Pearson said that he had refused to sign the social media policy because it was intended to apply out of hours and “Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights (sic) on freedom of speech.”

In addressing the social media policy acknowledgement issue as a valid reason for Mr Pearson’s dismissal, Commissioner Gregory said that there is little point in having a policy that prevents employees from damaging their employer’s reputation and releasing their confidential information at work that leaves them free to do so out of hours.  He accepted that there were many instances where employers cannot lawfully restrict or regulate employee’s activities outside work but said that for a social media policy to operate effectively it had to reach beyond work hours.

So despite what Mr Pearson may have thought, his freedom of speech and action outside work hours was not absolute.

Commissioner Gregory observed that Linfox was not actually asking Mr Pearson to abide by the social media policy but only to acknowledge that he had read and understood it.  All the same, Linfox would expect its employees to abide by the policy and for them to recognise that breach of the policy can have consequences for ongoing employment.

Mr Pearson does not appear to have understood this. 

In any event, as Mr Pearson had breached other workplace policies relating to notification of absences, unauthorised mobile phone usage and safety procedures, it is likely he would still have been dismissed even if he had not taken a principled, but misguided, stance on his employer’s social media policy.

So employees are on notice that out of hours social media use that damages an employer’s reputation or discloses its confidential information can lead to a dismissal being upheld as valid.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

 

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Out of hours activity and the link to employment

So if work hours are 9.00  am to 5.00 pm does this mean that what people do between 5.00 and 9.00 is off limits to the scrutiny and sanction of employers?

The issue is coming into focus with the explosion of electronic communications.

The internet and social media allow people to have a very public soap box for their views and activities and for employers to be part of the audience, even if they weren’t specifically invited.

Further, the internet may have meant that pornography no longer has to be purchased publicly but the risk of exposure to enjoying it has moved to a new dimension.

As with every innovation it’s all good fun until someone gets hurt.

Take Ms Fitzgerald, a hairdresser who complained on Facebook about the amount of her Christmas bonus.  Sacked after her employer read the post, she had to endure a conciliation and a one day hearing to be told that her dismissal was unfair and be awarded $2,300.00 compensation: Fitzgerald v Dianna Smith T/as Escape Hair Design [2010] FWA 7358.

Or take Mr Griffiths, a 25 year career public servant.  He had viewed pornography on a work laptop after hours at home, using his own internet service provider on eight occasions over three weeks.  He was detected when the laptop was audited and his browsing history analysed.  Mr Griffiths did himself no favours by first maintaining the access was accidental and then that it was “research”: Griffiths v Rose [2011] FCA 30.  His dismissal was upheld.

Or take Mr Stutsel, a 22 year veteran with Linfox.  Armed with a Facebook page that his wife and daughter had established for him he posted abuse against two of his managers, which resulted in his sacking when Linfox representatives discovered it.

Mr Stutsel was luckier than Mr Griffiths but had to work harder than Ms Fitzgerald to find out that his dismissal was unfair and be reinstated.

Linfox appealed to both the Full Bench of Fair Work Australia and then to the Full Court of the Federal Court in vain.

It is difficult to read the FWA decisions: [2011] FWA 844 and [2012] FWAFB 7097, and not be left with the impression that the real evil in the case was not what Mr Stutsel said but that Linfox did not have a formal policy on social media.

The one thing Ms Fitzgerald, Mr Griffiths and Mr Stutsel all have in common is that they did not intend their employers to find out about what they were doing.  Had any of what they did occurred in office hours, there is little question that all sackings would have been upheld.

So as great and convenient as the internet is, people use it at the peril of their employment even out of hours.

 

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

 

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