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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Stress, shock and miscalculation all insufficient grounds for extension of time at the Fair Work Commission

The Full Bench of the Fair Work Commission has upheld a decision by Commissioner Gregory preventing an employee with a general protections claim against his former employer from filing his application one day late.

Section 366 of the Fair Work Act requires an employee to file a general protections application at the Commission within 21 days after the dismissal took effect.  This also applies to applications for unfair dismissal remedy (see section 394).

The term “dismissal taking effect” can be difficult to interpret and calculate from - especially when employers provide a notice period, or payments in lieu. 

The Act allows the Commission to grant a dismissed employee an extension of time to file an application if satisfied that “exceptional circumstances” exist, taking account of:
-   the reason for the delay,
-   when the employee first became aware of the dismissal,
-   if the dismissal was disputed,
-   any prejudice to the employer caused by the delay,
-   the merits of the application; and
-   fairness between the employee and others in their situation
   (see sections 366(2) and 394(3)).

Exceptional circumstances are explained as circumstances that are “out of the ordinary course, or unusual, or special, or uncommon.” (Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1)

In Hart [2014] FWCFB 3270, Mr Hart was dismissed from his employment as a Sales Manager on 16 January 2014.  He filed a general protections application on 7 February 2014, one day after the expiration of the 21 day period.

In the extension of time application before Commissioner Gregory, Mr Hart gave evidence that he was on annual leave at the time of the dismissal, was in a state of shock and extreme stress and had miscalculated the 21 day period.

However, Mr Hart also admitted that shortly after the dismissal he had made enquiries with the Commission regarding avenues of redress, had been “considering his options” and that in fact “nothing” had prevented him from filing his application.

Commissioner Gregory expressed sympathy for Mr Hart but dismissed his application for an extension of time, ultimately because a stressed employee considering his options and miscalculating the time period was not exceptional, but “circumstances routinely encountered by the Commission” at [16].

Mr Hart appealed to the Full Bench of the Commission, which upheld Commissioner Gregory’s decision.

This is another example of the Commission strictly enforcing the time limits prescribed by the Act. 

Lessons to be learnt:

-  calculate the time period including the day of the dismissal;
-  filing a simple application is better than missing the deadline - you can always seek leave to     amend later;
- applications for extension of time require exceptional circumstances; and
-  circumstances that are stressful and unhappy for a dismissed employee are not necessarily exceptional.


Emma Pollett-Sutton
Lawyer

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

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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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Leave loading payable when employment ends

If your employees are entitled to leave loading when taking paid annual leave, that loading may be payable on termination if employees have untaken annual leave.

The minimum entitlement to annual leave is set out in the National Employment Standards of the Fair Work Act 2009.  They provide for leave to be paid at base rates of pay. 

Section 90(1) of the Fair Work Act states:

If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Modern awards and enterprise agreements may provide for paid annual leave to be calculated on a formula greater than the base rate of pay.

Section 90(2) of the Fair Work Act states:

If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

Mr Ryan was a mining operator with Whitehaven Coal Mining Pty Ltd, who resigned his employment after two and a half years.  At that point he had untaken paid annual leave.

Clause 14.1 of the relevant enterprise agreement stated:

Employees are entitled to five weeks annual leave per year, accruing progressively.  For periods of annual leave, employees will be paid the greater of: - their ordinary time rate of pay and an annual leave loading of 20%; or -  the projected roster earnings. 

When Mr Ryan resigned Whitehaven paid Mr Ryan his accrued paid annual leave calculated at his base rate of pay.

He contested that decision in the Local Court of New South Wales.

He argued that on the plain meaning of the words in section 90(2) of the Fair Work Act he should have been paid the 20% loading (or the projected roster earnings).

In response Whitehaven argued that upon termination Mr Ryan should be paid his accrued but untaken annual leave at his base rate of pay relying on clause 14 of the enterprise agreement which said:

           Leave

Entitlements to leave are in accordance with the entitlements set out under the applicable FW Act provisions and the provisions of this agreement set out below.

It argued that this meant that an employee’s entitlement to payment of accrued but untaken annual leave upon termination was to be dealt with under the Fair Work Act and not the enterprise agreement applying to Mr Ryan.

The magistrate decided in favour of Mr Ryan agreeing that the plain meaning of section 90(2) of the Fair Work Act permitted his accrued entitlement to paid annual leave to be paid to him at greater than the base rate of pay because if he had remained with Whitehaven and taken the leave he would have been entitled to the greater of the 20% loading or the projected roster earnings.

The decision was handed down on 26 July 2013 and there is the prospect that Whitehaven will appeal it on a question of law to the Supreme Court of New South Wales.

In the meantime, however, it is clear that resigning or dismissed employees who have accrued and untaken paid annual leave, which is subject to a leave loading are to be paid that loading on termination of employment.

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

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Pornography in the workplace - is this ground for automatic dismissal?

A full bench of the Fair Work Commission has recently found that three employees of Australia Post were unfairly dismissed even though it was proven that the workers had breached policies in relation to discrimination, harassment and the use of IT to access and share pornography.

The decision has surprised employers who had thought that if an employee breached a strict no dissemination of pornography policy that would be grounds to justify termination.
 

The majority of the Commission held that even though there was a valid reason to sack the employees, the Fair Work Act required an employer to still ensure that the sacking was not harsh, unjust or unreasonable.

The Commission illustrated the point by giving the example of a bus driver who was sacked for using a mobile phone whilst in charge of a bus. The bus company had a strict policy that drivers must obey the rules of the road and never use a mobile phone whilst driving. The bus driver’s wife was suicidal and suffering severe depression and had begged her husband not to go to work that day. The call that he took was from his wife. He hesitated to take the call, but frightened as to the catastrophic consequences of not taking the call, answered his phone and told his wife he would call back as soon as it was safe to do so. He had a long and unblemished record of service, acknowledged his fault and was remorseful. The Commission held that notwithstanding that there was a valid reason for dismissal held that the dismissal was harsh and reinstated the bus driver.

This decision is a reminder to all employers to make sure that any punishment “fits the crime” and that factors such as length of service, previous employment history, and inconsistent application of policies in relation to Internet usage may suggest that action short of termination should be taken.

What should Employers do?

1.             - Make sure that policies in relation to Information Technology are up to date,

2.            - Ensure that all staff are aware of the policies,

3.            - Make sure that policies are fairly and consistently enforced,

4.            - Assess each case of misconduct and breach of policies by reference to the particular circumstances including :  the employees age, length of service,  disciplinary record, remorse and the gravity of the misconduct,

5.            - Ensure that a punishment such as dismissal is not disproportionate to the offence.

Dismissal can be hotly contested by employees especially where there is a realistic prospect of reinstatement.  Employers should seek early advice from an experienced workplace practitioner about proper process before proceeding to terminate an employer for breach of policies.

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

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