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.

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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.

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Please ask nicely

Peter Lambos was a bus driver with the ACT Internal Omnibus Network.

In September 2014 he was having problems with his driver’s seat and complained about it to a manager.

Three months later, the problem persisting, he contacted his employer’s workplace health and safety coordinator.

There was a dispute as to what Mr Lambos actually said to the coordinator in their conversation but it was not disputed that he mentioned “Columbine”, a reference to the spree killings at Columbine High School in the United States in 1999.

Mr Lambos was suspended on full pay whilst the employer investigated what it regarded as serious misconduct constituted by:

1. Mr Lambos allegedly saying “If ACTION touch me this will be another Columbine”;
2. Inappropriate behaviour to colleagues in breach of the respect equity and diversity framework constituted by accusing management of being corrupt.

After the investigation was held, which took some months, Mr Lambos was terminated from employment for serious misconduct.

Commissioner Kovacic found the serious misconduct established and that the consequent dismissal was not a harsh, unjust or unreasonable response: Lambos v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 3835.

All Mr Lambos wanted was a driver’s seat that did not “bottom out” causing jarring injuries but the way he went about trying to get something that was perfectly reasonable led to him not only not having a proper seat but also not having a proper job.

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Don’t be late! These are the risks of filing an unfair dismissal application out of time.

If you are terminated from your employment, you will only have 21 days from the date the dismissal takes effect to file an unfair dismissal of general protections application with the Fair Work Commission.


The Fair Work Commission is notoriously strict with its application filing deadlines and will only extend the time for lodgement in exceptional circumstances.


In the matter of Langtry and Mitolo Group Pty Ltd, the applicant filed his application seven weeks’ out of time. Mr Langtry’s explanation for his late lodgement was that he was unaware of the existence of the unfair dismissal jurisdiction within the Fair Work Commission and it was not until discussing the matter with a family matter that he learned he could make such an application. As we all know, ignorance of the law is no excuse and in Langtry and Mitolo Group Pty Ltd, the application was not allowed to be filed out of time.


The 21 day lodgement period is calculated on calendar days, rather than business days, so if you feel you have been unfairly terminated, act quickly!


Contact the Workplace Relations team at Nevett Ford on (03) 9614 7111 to ensure you are fully aware of your rights and entitlements. 

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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.

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Notice would have made dismissal valid

Moskou v Specialist Diagnostic Services Pty Ltd [2015] FWC 8608 is an example of where summary dismissal for what occurred was deemed harsh but dismissal with notice would have been deemed fair.  A courier driver, who was suffering from gastroenteritis, defecated in a client’s carpark and failed to clean up properly or report the incident to his manager.  Commissioner Cribb decided the actions constituted misconduct but not serious misconduct warranting summary dismissal and ordered compensation of one week’s pay in lieu of notice

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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.

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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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