Did you know that as an employer, you can be held responsible for your workers even when they are not working?

 

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.

 

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When does a workplace entitlement becomes a contractual right?

 

An employer who failed to follow its own workplace policies has been successfully sued for breach of contract in the Full Court of the Federal Court.

 

The applicant in this case was a second officer on a supply ship and employed by the respondent, Farstadt Shipping (Indian Pacific) Pty Ltd. 

 

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

 

The Court had to determine whether the workplace policy formed part of the applicant’s employment contract for the purposes of establishing 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 own employment contract.

 

The employer was found to have breached the contract and ordered to pay the applicant’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 on (03) 9614 7111.

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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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Solidarity forever? Not quite

 

Solidarity forever? Not quite

 

An inexperienced union official employed for an important project to further the union’s aims was sacked when the union’s leadership discovered that his political opinion was different from theirs.

The official contested his dismissal as a breach of his general protections and was awarded $120,000.00 compensation.

If you want to know more about the decision in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 and read my commentary on it email me at gdoran@nevettford.com.au

The decision demonstrates that employers who dismiss employees for prohibited reasons, which includes an employee’s political opinion, may face substantial claims for compensation and even the imposition of a pecuniary penalty.

Greg Doran

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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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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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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