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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Doctors Boss fined over $50,000 for threatening worker

The fact that an employer is a small business, that is having fewer than 15 employees, does not stop significant penalties being imposed upon it for proven breaches of the Fair Work Act.

Whatever size its business, an employer, must comply with the law.

This much is plain from the decision in FWO v Windaroo Medical Surgery Pty Ltd & Others (No 2) [2016] FCCA 2505.

In this case the Federal Circuit Court awarded penalties totalling $51,480 against the employer and two managers, who had been involved in breaches of the Act.

The employer threatened an employee doctor not to complain to the Fair Work Ombudsman about non-payment of his salary.

The doctor resigned and left Australia but the Fair Work Ombudsman took action not only to recover amounts owing to the doctor but also to ensure that employers understand that breaches of the Act have consequences.

The decision is a clear signal that employers and their managers, whatever their size, can expect stiff treatment for infringing a workers rights.

There are strong protections in the Fair Work Act to ensure that workers are not subjected to adverse action.  Employers should make sure they get legal advice from a workplace relations specialist before acting hastily. Equally workers who believe they have been treated unfairly should act quickly to protect their rights. Generally all rights to take action under the Act for unfair or unlawful dismissal must be done within 21 days of being sacked.

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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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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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Even a small mistake can have big consequences for employers

 

Coffey Projects (Australia) recently learned the hard way that there are serious consequences with providing employees incorrect information in relation to their workplace rights and entitlements.

 

Despite employing a Human Resources manager, Coffey Projects relied on outdated policies that did not reflect amendments to the Fair Work Act 2009 (Cth) and provided an employee with incorrect information about his parental leave entitlements. 

 

The outdated policy incorrectly stated that parental leave was only available to “primary” caregivers. As he believed he was not entitled to parental leave, the employee took a combination of annual leave and unpaid leave in order to care for his newborn twins.

 

When he was due to return to work, he was only offered part-time hours and later made redundant. The employee successfully argued that had he been provided the correct advice, he would have applied for parental leave which guaranteed his right to return to work on a full-time basis. He then would have been entitled to be paid out his entitlements as if he were a full-time rather than a part-time employee. Coffey was order to pay the difference between these amounts being $109,000.

 

The outdated policy was in breach of the National Employment Standards and as a consequence, Coffey was ordered to pay their former employee almost $170,000 consisting of unpaid wages and redundancy pay which he would have received had he been granted parental leave. 

 

Although the Court found the employer did not act recklessly or knowingly, it was still penalised and ordered to pay an additional penalty of $8,800.

 

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The Standard Employment Contract: A Cautionary Tale

 

It really is a case of ‘buyer beware’ with many business owners downloading or buying standard employment contracts and templates online in an effort to save time and money.

 

Small businesses with limited human resources training are turning to Google and other search engines instead of an employment lawyer.

 

Unfortunately, these standard templates are often outdated and in contravention of the Fair Work Act 2009 (Cth).

 

Some documents offer less benefits than the employee is entitled to receive and do not provide an employer with adequate protection from breach of contract or unfair dismissal claims.

 

The implication for employers includes the risk of penalties of up to $50,000 by the Fair Work Commission for breaching the minimum National Employment Standards.

 

An employment contract should provide employees with the correct leave entitlements and include all important details such as location and hours of work as well as notice requirements in the event of termination.

 

A properly drafted contract will ensure both parties are fully aware of their rights and in relation to leave entitlements and their obligations at the end of the employment relationship. 

 

Do the right thing by your business and your employees and contact an employment lawyer to review your employment contracts and ensure your business is protected from penalties.

 

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Tweet or Twit: you be the judge

Tweet or Twit: you be the judge

 

In early 2014 I wrote about the risk to employment from the use of social media out of hours but where critical comments of an employer were made.

 

A recent decision of the United Kingdom Employment Appeal Tribunal: Game Retail Ltd v Laws [2014] UKEAT 0188_14_0311 demonstrates that use of social media, which an employer judges as inappropriate can lead to the termination of employment even if the subject of communication is not the employer.

 

In this case the offending medium was Twitter.

 

Mr Laws was the risk and loss prevention officer of Game Retail in the north of England. Game has over three hundred stores across the UK each has its own Twitter profile as a marketing and communications tool.

 

Sometime before July 2012 and independently of his employment, Mr Laws opened his own Twitter account primarily to communicate with his friends. He then began to follow the stores for which he was responsible. The Employment Tribunal found that “he did this in order to monitor inappropriate activity by other employees”.

 

The problem for Mr Laws started when Game stores started to follow him. He was not seeking followers amongst the stores for which he was responsible, but he had not enabled the privacy setting on his feed with the result that his tweets could be seen by more than just his chosen followers.

 

On 18 July 2013 a store manager was so concerned about tweets on Mr Laws’ feed that he notified his regional manager. There commenced an investigation, which led to Mr Laws’ summary dismissal on 31 July 2013.

 

The investigation identified twenty eight tweets as offensive. Amongst those criticised were police, dentists, golfers, caravaners and Newcastle United Football Club supporters (Mr Laws followed Sunderland, Newcastle’s local rival). Mr Laws used four letter words and their present participles liberally. None of the identified tweets involved his employer and none was made in his role as a risk and loss prevention officer for Game or whilst he was at work.

 

Mr Laws contested his dismissal to the Employment Tribunal, which judged it to be unfair but reduced his compensation by forty per cent for contributory conduct.

 

Game appealed to the Employment Appeal Tribunal on the grounds that the Employment Tribunal had erred in deciding how the reasonable employer should act and/or that the finding that the dismissal was unfair was “perverse”.

 

The essential issue before the Employment Tribunal was the appropriate sanction for the conduct, it being accepted that the subject tweets were offensive and the investigation process that Game undertook was procedurally fair.

 

The Employment Appeal Tribunal allowed the appeal and the application was remitted to a different Employment Tribunal for further submissions on the test of the reasonable response of the reasonable employer and how that might affect the sanction to be imposed.

 

At the time of writing Mr Laws may still be found to have been unfairly dismissed and entitled to compensation.

 

Having said that, it is my view that even though the offending tweets were not meant for other than his known followers, were not sent from a work owned or related device, did not refer to Game and were not sent in work time, Mr Laws is going to have a hard time to convince an Employment Tribunal that his dismissal was unfair.

 

The content of the tweets, the fact that they could be associated with him as a risk and loss prevention officer for Game and the loss of reputation that Game may suffer as a result of that association would be enough for dismissal to be an appropriate sanction.

 

So again the lesson is, do not say on social media anything that you are not prepared for the whole world to know.


Questions about this article or about employment and workplace matters, our specialist employment and workplace relations team provide advice in all matters related to employment law.

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Employers on notice about age discrimination

In a landmark court ruling in April 2014, relating to age discrimination in the workplace the Federal Circuit Court in Brisbane imposed penalties on a restaurant and its directors for terminating the employment of a worker on his sixty fifth birthday: Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170.

The employee had worked for the restaurant since 1996 as a full time employee. Upon returning from long service leave in 2011, he was told he would be placed on part-time employment.  In the lead up to his sixty fifth birthday on 5 September 2011 the employer wrote to the worker stating that his employment would cease at that age and that it did not employ people who had reached 65 years.

The statements were clear breaches of section 351 of the Fair Work Act, which prohibits employers taking adverse action against employees because of, amongst other things, their age.

The decision acts as a warning to employers and a signal to employees that the laws to protect them at work will be enforced.

Questions about this article or about employment and workplace matters, our specialist employment and workplace relations team provide advice in all matters related to employment law.

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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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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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Restaurant owners happy to pay less on Sundays

For workers in the hospitality industry, rising early for a Sunday morning shift after Saturday night’s revelry is worth it - if only for Sunday penalty rates. 

This has been the case since 1 January 2010, when the relevant modern award, the Restaurant Industry Award introduced the penalty rate regime (see clause 34.1 ).

From 1 July 2014, however, Sunday penalty rates for many hospitality workers will reduce by 25%, following a Full Bench decision of the Fair Work Commission in Restaurant and Catering Association of Victoria - Re Restaurant Industry Award 2010 [2014] FWCFB handed down on 14 May 2014.

The decision will affect employees in the restaurant industry, which includes most hospitality workers, but not those in fast food outlets or restaurants in hotels or clubs.

The decision was a result of the modern award implementation process, which requires the Commission to review awards as soon as practicable after the second anniversary of their commencement, to check if it is achieving its objective of providing a “fair and relevant minimum safety net” of employment terms and conditions (section 134 of the Fair Work Act 2009). 

In deciding whether the award is “fair and relevant”, the Commission must consider numerous factors, including the need to provide additional remuneration for employees working on weekends.

The Applicants in the matter, the Restaurantand Catering Association of Victoria, Australian BusinessIndustrial and 16 private restaurant businesses, filed an application to the Commission seeking a number of changes to the award, including cdecreased weekend and public holiday penalty rates.

The application was first heard at the Commission by Deputy President Gooley, who after four days of evidence from employers, economic experts and academics, rejected (among other requests), the proposal to reduce Sunday penalty rates. 

Deputy President Gooley’s decision was based largely on there being “insufficient or no evidence that the proposed changes would improve productivity or encourage collective bargaining” [at 30].

The Applicants appealed Deputy President Gooley’s decision to the Full Bench, which on 14 May 2014, granted permission to appeal, finding that there was a sufficient public interest to be determined in the outcome. 

The Full Bench then quashed the Deputy President’s decision regarding Sunday penalty rates on the basis that the Deputy President had determined the matter “by reference to the test of whether there had been a significant change in circumstances since the making of the Restaurant Award and, as a result, did not consider the matter in accordance with the relevant requirements of the Transitional Act” [at 154].

Finding that 6 of the 9 elements of the Award’s objective were “detrimentally affected” by Sunday penalty rates, which were failing to achieve the “fair and relevant” objective of the award, the Full Bench then decreased Sunday penalty rates from 50% to 25% [at 303].

Unsurprisingly, United Voice, representing the industry’s employees, is upset, and considering an appeal, and Restaurant and Catering Australia is ecstatic, immediately issuing a press release praising the outcome of its “historic” fight.

The effect of the decision will be felt by the industry’s workers - a force already “low-paid compared to other industries”, with a “lower skills base” and made up primarily of students and women with children.

Emma Pollett-Sutton
Lawyer

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

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Fair Work Commission makes one order from 151 applications in first 3 months of anti-bullying jurisdiction

In March 2014 we wrote about the addition of an anti-bullying jurisdiction to the Fair Work Commission.   To recap, from 1 January 2014, ‘workers’ (a broad term which includes subcontractors and volunteers) can apply to the Commission for a stop bullying order.  Applications are dealt with by a Commissioner either by mediation, conference or hearing. 

The Commission reports on each of its jurisdictions on a quarterly basis.  On 23 April 2014, it published its first report on the anti-bullying jurisdiction, covering 1 January to 31 March 2014.

In the Commission’s first three months, it received 151 applications.  This is far below the 3,500 applications for the year predicted by the Commission’s General Manager, Bernadette O'Neill in June 2013.

Most applications were made against large employers with over 100 staff in the clerical, retail, banking and health services industries. 

Although the definition of bullying excludes reasonable management action, the vast majority of applications allege bullying by managers.

Interestingly, 20 applications alleged bullying by a group of workers.

All but eight of the 151 applications were withdrawn in the early case management or conciliation stages.

Of the eight applications that proceeded, six were rejected by the Commission for being frivolous, not having reasonable prospects of success, or because they were not made in accordance with the Act (in one example, the application form was not properly signed).

Of the remaining applications one led to the Commission’s first and only stop bullying order, made on 21 March 2014 by Senior Deputy President Drake in Applicant v Respondent [2014] PR548852.  

Details of the case are sparse - Senior Deputy President Drake’s order does not include any reasons, save that the orders were agreed by the parties during conference.  However, the order is quite specific in its wording.  The alleged perpetrator cannot have any contact with the applicant alone or comment about the applicant’s clothes or appearance.  Interestingly, the applicant was ordered not to attend work before 8.15 am.

As knowledge of the jurisdiction increases and more applications are filed, we will get a better idea of how the anti-bullying jurisdiction will work and whether bullied workers will resort to its remedies.  Given that managers are being accused of bullying most often, the main point for employers to take away from the Commission’s first three months is to ensure that managers are properly trained on all aspects of their role - starting with performance management and discipline. 

Emma Pollett-Sutton
Lawyer

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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