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.

Read More»

Unfair Dismissal – Your worker has been with you for HOW long?

How long does an employee have to be employed before they’re eligible to make an unfair dismissal claim?  The short answer is “that depends on the size of your business.”  If you’re a small business, the employee will have 12 months before they can claim eligibility. If you employ more than twelve employees, they will only have six months. But how is that six months calculated?

 

In Emma Wells v ABC Blinds & Awnings [2016] FWC 8260 the worker was employed between 4 February 2016 and 4 August 2016. She was originally engaged as a casual employee for the first three months and was later offered a permanent position, which she retained for another three months.

 

It’s important to note that during her casual employment, the worker worked regularly on a roster based system and took two days of unpaid leave within this period. 

 

The worker was sacked shortly after arriving at work on 4 August 2016 – exactly six months after her first day of work with the Employer.

 

The Employer argued that 1) the Applicant’s service as casual employee should not be included when calculating continuous service and 2) if the casual employment were deemed to be included, her continuous service would not add up to six months as she had taken two days off during that time. 

 

The Fair Work Commission found that the Applicant’s employment was regular and systematic and therefore it could be included as part of her continuous service.

 

However, in light of the unpaid leave taken during her casual employment, the Applicant was found not to have served the minimum employment period, meaning she was not a person protected from unfair dismissal and her application was dismissed.  

 

So what are the lessons here?

1. A worker’s casual employment may be classified as continuous service for the purposes of the unfair dismissal laws depending on the regularity of their work schedule and also their expectations of future employment.
2. Any unpaid leave taken during casual employment will not break an employee’s continuous service, but it will also not contribute their continuous service with an employer.
    

If this all sounds too confusing and overwhelming, never fear! Call one of the workplace relations lawyers at Nevett Ford on (03) 9614 7111 for advice and assistance on all of your employment law matters. 

 

Read More»

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.

Read More»

Employer’s liability for the criminal conduct of its employees

 

The High Court of Australia in a recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 looked at the vexed issue of vicarious liability for institutions arising out of sexual abuse.

The majority of the High Court found that a criminal offence such as sexual abuse by an employee does not prevent the possibility that the institution will be liable vicariously.

The High Court determined that the relevant test to be considered is whether in this case the role of the housemaster placed him in a position of power and intimacy with a boarder, that gave the housemaster the occasion for the wrongful acts, and that because the housemaster took advantage of his role as housemaster, the abuse could be regarded as having been committed in the course or scope of his employment.

 Because much of the evidence to determine the actual role of the housemaster as assigned by the school has been lost, the school could not have a fair trial on the issue of liability.

The school was also prejudiced because the claimant conveyed the impression that he was not bringing proceedings and subsequently changed his mind.

Furthermore the claimant had brought actions against the direct wrongdoer and had resolved such actions.

Accordingly, it is clear that cases involving sexual abuse and the liability of an institution for the acts of its employees will be determined upon a careful consideration of the precise role of the employee and whether or not such a role gives the occasion for the wrongful act.

An examination of the role will include looking at the authority, power, trust, control and the ability provided by the employer to achieve intimacy with a victim.

 

Read More»

You need to finish what you start

The Fair Work Commission is committed to “a fair go all round”. This does not mean, however, that it is there purely for the convenience of one party to an application.

This much is demonstrated in Newbey v Atlas Group Pty Ltd [2016] FWC 5246.

On 22 April 2016 Mr Newbey applied for an unfair dismissal remedy arising from the termination of his employment at Atlas.

When Atlas lodged its response saying that the termination was a genuine redundancy the commission listed the application for conferences and directions, neither of which Mr Newby attended or complied with over a two month period.

As a date for participation or compliance approached, Mr Newbey, who had obtained another job in the meantime, routinely emailed the commission that he was unavailable requesting another time.

Matters came to a head when he had not lodged documents by 27 September 2016 in compliance with directions earlier given. When the commission could not reach Mr Newbey and there was no explanation from him, it dismissed his application under section 399A of the Fair Work Act.

The lesson for dismissed workers is that they must be prepared to see their applications through.

Read More»

Fixed means just that

A security guard employed at the Manus Island Detention Centre has been found not to have been unfairly dismissed when extensions to a fixed term contract of employment ended.

The decision is reported at Cowan v Wilson Parking Australia trading as Wilson Security [2016] FWC 5768.

Mr Cowan was employed as a security guard at Manus between March 2014 and April 2016.

His original contract of employment had an end date of 30 September 2014.

When the contract was about to end he was offered a further contract, which took him to October 2015 and then two further extensions that took him to the end of April 2016.

Each time his employment was extended, Wilson specified that there was an end date and as a consequence Mr Cowan would not be entitled to be paid a redundancy if his employment was not extended.

In the end Wilson did not extend Mr Cowan’s employment because a police certificate that Mr Cowan had supplied when he first started with Wilson showed that he had a conviction for driving offences and Wilson concluded that Mr Cowan would not be able to obtain a security licence.

Along with Mr Cowan, Wilson also let five other employees go, whose fixed term contracts with extensions had also expired.

Although Commissioner Wilson acknowledged that a fixed term contract could be a sham he was satisfied that that was not the case with Mr Cowan.

Wilson did not want to commit to permanent employment because at the time it was negotiating with Transfield, which held the head security contract with the Australian Border Force to continue to supply guards to Manus Island.

Against this backdrop and letters from Wilson to Mr Cowan each time he had an extension that his employment would end unless further extended, Commissioner Wilson had no difficulty in deciding that Mr Cowan’s employment ended because of the effluxion of time and not at the initiative of the employer, Wilson.

Read More»

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.

Read More»