Double Jeopardy – Can you fire an employee twice?

The Fair Work Commission recently heard a case where an employer dismissed  an employee and then summarily dismissed him again while the employee was working out his notice period.


Initially, the Employer dismissed the employee due to his poor performance and failure to meet targets. The employee was then required to work out his notice period.


Whilst the employee was working out his notice period, it was discovered that he had emailed numerous documents, including confidential information, to his personal email account. As a consequence, he was summarily dismissed, which meant he did not have to work out the remainder of his notice.


The Commission found that a business can only dismiss an employee once. As the employee had already been dismissed, the employer could not justify summary dismissal based on the actions of the employee after termination.


Despite the fact that the actions of the employee after termination contravened the Privacy Act, the business failed to dismiss the employee in accordance with the Fair Work Act 2009 (Cth).


Although the Commission took into consideration the employee's conduct after termination in  its decision, it determined that the employee was owed financial compensation for his unfair dismissal.


To protect your business and insure yourself against avoidable unfair dismissal claims, 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 misconduct.

Read More»

If it looks like a duck and quacks like a duck… Is it a duck?

In December last year, the High Court of Australia handed down judgment in the matter of Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd.

Quest Serviced Apartments (“Quest”) employed two housekeepers over several years. It then entered into a contract with Contracting Solutions whereby the two women would become independent contractors engaged by Contracting Solutions, though they continued to work for Quest and performed the same roles.

This arrangement was effectively sham contracting, which is prohibited under Commonwealth legislation.

Section 357 of the Fair Work Act 2009 (Cth) restrains an employer from representing to an individual that they are working as an independent contractor when they are working as an employee.

As a result of its sham contracting, Quest now faces pecuniary penalties, which can be as high as $54,000 per breach for a corporation. 

So how do you know if your employees are genuinely employees or independent contractors? There is no hard and fast rule and it can often depend on the individual circumstances of the situation.

There are several indicators to consider when determining the nature of your employment relationship, such as how the worker is paid, who makes the taxation payments and whether the worker is a representative of the business.

The entire arrangement will need to be considered to determine the nature of the working relationship.

If you are unsure whether your workers are employees or independent contractors, speak to one of the Workplace Relations team at Nevett Ford on (03) 9614 7111.

Read More»

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.

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»

Workplace Bullying - Can a business be responsible for bullying outside of work hours?

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»

Workplace Policies Traps for Employers

An employer who did not follow its own workplace policies has been successfully sued for breach of contract in the Full Court of the Federal Court.

The worker was a second officer on a supply ship and employed by Farstadt Shipping (Indian Pacific) Pty Ltd. 

Like most employers, the company had a Workplace Harassment and Discrimination Policy in place which set out the procedure for dealing with complaints. When the worker made a complaint of sexual discrimination, the procedures were not followed.

The Court had to determine whether the workplace policy formed part of the employment contract for the purposes of deciding whether there had been a breach of contract.

It was found that the policy did form part of the employment contract, binding the employer to its obligations to investigate complaints in accordance with its established procedures.

It was successfully argued that the employer failed to follow its own policies and, in failing to comply with them, breached its employment contract.

The Court found the employer had breached the worker’s contract of employment and ordered the employer to pay the worker’s costs.

While it is important to ensure your business has policies in place on issues such as bullying and harassment or drugs and alcohol, employers should ensure these policies do not form part of their employment contracts, lest they become a binding upon you.

To have your contracts reviewed, ensure their compliance with the legislation and minimise risk to you as an employer, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to a member of our workplace relations team.

Read More»