Reflections on the diverse and inclusive workplace

The former Sex Discrimination Commissioner Ms Elizabeth Broderick recently commented on diversity and inclusion in the workplace at a conference held by the Australian Human Resources Institute.

Here are some of the things she emphasised:

1. If employees are to embrace change to make the workplace more diverse and inclusive then their employers need to lead the way.
2. She urged the creation of safe spaces where employees could share their views in a respectful, empathetic setting that did not lead to recriminations.
3. Don’t assume opponents of change have bad intentions. But they may see change as involving the loss of something that they have worked hard for and personally invested in.
4. The diverse and inclusive workplace needs to deal with the perception, if not the fact, of loss of security, stability, belonging and rituals as well as the positive changes meant to encourage diversity and inclusion.
5. She asked women who had been successful in challenging environments (“jocks in frocks”) whether they thought it was okay if their sisters or daughters had to go through the same experiences they did in order to succeed.
   For further advice on strategies to make your workplace diverse and inclusive please contact our team of workplace lawyers at Nevett Ford.

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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.

 

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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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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.

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Pitfalls of lack of process

Earlier this year, two cases heard in the Fair Work Commission demonstrated what can occur when proper process is not followed relating to termination of employment

 

In Lyberopoulos v Reidwell Investments BT Pty Ltd T/A Coco Cubano Blacktown [2015] FWC 4256, the employee was employed for less than seven months before she was summarily dismissed.  

 

The employer claimed she failed to comply with their procedures and did not follow directions. The parties contested the facts of the case and Senior Deputy President Drake had to determine whom to believe. She accepted the employee’s evidence over the employer’s because the employer did not seem to be a credible or reliable witness.

 

The Commission found that the employee was not appropriately warned that her actions may lead to the termination of her employment and the reasons for her dismissal were therefore harsh, unjust and unreasonable.

 

As the employee was unable to obtain alternative employment until 24 weeks and three days following the termination of her employment, Deputy Senior President Drake ordered that the employer pay compensation to the value of 24 weeks and three days’ worth of the employee’s salary, being $36,267.

 

In Balatti v Aussie Supplements Pty Ltd [2015] FWC 4674 the employee had been working as a sales manager for three years when he received a telephone call from his employer alleging he was being investigated for the sale of illegal drugs whilst at work. The employee was advised he would be dismissed from his employment and, several days later, received a letter confirming his immediate dismissal. The employer then failed to pay the employee’s accrued statutory entitlements upon termination, such as annual leave, and failed to participate in a conciliation conference and hearing before the Fair Work Commission. Commissioner Cambridge found the dismissal harsh, unjust and unreasonable because the employer advised the employee of his termination by telephone and the letter of dismissal did not provide any reasons for the dismissal. As a consequence, the employer was ordered to pay $17,880.

 

Under section 117 of the Fair Work Act 2009 an employer is obliged to provide notice of termination in writing.  But as the decision in Clark v Framlingham Aboriginal Trust [2012] FWA 7103 shows, the failure to provide written notice does not make a termination ineffective if the employee has been notified (by whatever means) that his employment has been terminated.

 

Melita Demirova

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Employees: be clear on what you’re applying for

When employees are dismissed they are sometimes faced with a choice of which type of claim applies to their circumstances for seeking a remedy under the Fair Work Act.

Have they been dismissed unfairly so as to be able to apply under Part 3-2 of the Act?

Have they been dismissed in contravention of their general protections so as to be able to apply under Part 3-1?

The choice is important. While section 586 of the Act allows corrections or amendments to be made to applications, the Full Bench of the Fair Work Commission has decided that the power to amend does not extend to converting a general protections application  into an unfair dismissal application: Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660.

An unfair dismissal application and a general protections application are meant for different circumstances even though they each may address that an employee has been dismissed. They are not interchangeable.

Once employees commence one type of application they cannot change midstream. They have to discontinue one application and then start the other if, after reflection or advice, they realise they have used the wrong application in the first place.

As 21 day time limits apply to both unfair dismissal applications and general protection applications (where a dismissal has occurred) the consequences for employees not getting it right at the start can be far reaching.

The lesson for employees is to be clear on what they are applying for.  If they are not clear they should seek advice so that they choose the application that suits the circumstances of their dismissal.

For further questions about employment or workplace relations, please contact our specialist employment and workplace relations law team.

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Federal Court Case: Chef comes to grief over schnitzels

In a recent decision of the Federal Circuit Court a chef has been ordered to pay his former employer, a Hotel in North Wollongong, $72,838 for breach of his contractual duty to act with fidelity and good faith.

The Chef purchased schnitzels from his wife’s business and charged his employer one dollar more than the he paid for them.

The Chef originally sued his employer for an unpaid bonus and leave. The Hotel counter claimed for its losses due to the conduct of the Chef in acting in conflict with his obligations to his employer.

Wisely the employer had a term in its written employment agreement that required its employees to act “faithfully and diligently serve the company”

Nevett Ford acts for employers and can provide expert advice on all aspects of employment law and workplace contracts.

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Employment Contracts: If it's not written it may not be in

MAJOR HIGH COURT DECISION ON EMPLOYMENT CONTRACTS

IF IT’S NOT WRITTEN IT MAY NOT BE IN.

Contracts of employment can be oral, written, implied by law or be a combination of all three.

A written employment contract does not necessarily contain all the terms that govern the employment relationship as some terms may be implied by law. 

The law that implies them can be either legislation or law that has developed through court decisions, which is known as common law.

An example of a term that could be implied by legislation is one against theft.  As it is illegal to steal, it is implied into employments contracts (unless they state so explicitly) that employees not steal from their employers.

Breach of such an implied term routinely leads to an employer terminating the contract and summarily dismissing the employee.

The difficulty with implied terms is where the common law is relied upon.

Some terms can be “in” whilst others are “not in”.

One implied term recently ruled “not in” was an implied term of mutual trust and confidence.

Such a term means that neither employers nor employees will do anything, without reasonable cause, to destroy or seriously damage the relationship of trust and confidence that exists between them.

Mr Barker was a long time employee of the Commonwealth Bank of Australia, who when he was not redeployed within the bank was made redundant. He contested whether the bank had implemented its redeployment policy correctly and said the that bank’s failure to do so breached, amongst other things, an implied term in his employment contract of mutual trust and confidence.

The trial judge agreed adopting legal reasoning developed from  cases in the United Kingdom  and awarded Mr Barker $300,000.00 as damages: Barker v CBA [2012] FCA 942.

On the bank’s appeal to the Full Court of the Federal Court, Mr Barker held on to his money by a two – one majority: CBA v Barker [2013] FCAFC 83.

On the bank’s further appeal to the High Court, Mr Barker was not so lucky: CBA v Barker [2014] HCA 32. There the five judges relying on slightly different lines of reasoning decided that there was no implied term of mutual trust and confidence in Australian common law so that it could form part of an employment contract.

The result was that Mr Barker was left with an amount for four weeks’ pay in lieu of notice: a substantial reduction on the damages first awarded to him.

The general legal principle around implying terms into contracts is that they must be necessary so as to give business efficacy to the contract.

The lesson to take from the Barker cases is that implying terms from common law into an employment contract, regardless of the parties’ intentions as expressed by the written agreement between them, will be increasingly more difficult.  

Nevett Ford’s workplace relationsteam can advise on all aspects of employment law.

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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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