Performance not pursuit of workpalce rights real reason for ambo's dismissal

 In a recent decision of the Federal Court of Australia (Short v Ambulance Victoria [2014] FCA 3) (15 January 2014) a claim by a paramedic that he was dismissed because he vigorously exercised his workplace rights by making inquiries and/or complaints about his employment was rejected.

The Court found that the paramedic’s dismissal had nothing to do with the exercise of workplace rights but was clearly due to this man’s behaviour.

The paramedic was on a warning for unacceptable behaviour as a result of the findings of an external inquiry into complaints the paramedic himself had made against management.

 

The Court described the behaviour that precipitated the dismissal as a “dummy spit” and an unprovoked and unreasonable personal attack on a manager.  The case is a reminder to all employers to ensure that warnings of inappropriate behaviour are documented and that the reasons for termination are clearly set out in all contemporaneous documents.  Ambulance Victoria was vindicated in its decision to dismiss this man.

 

This case is a good example of how proper process and procedures being followed will withstand the scrutiny of a Court when challenged.

All employers need to act carefully when dismissing employees and go through proper processes.  In this case the employee’s aggressive behaviour after having been warned was considered by the Court to be beyond pale notwithstanding 12 years of employment.

Philip Brewin
Accredited Workplace Relations Specialist

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

 

Read More»

Out of hours activity and the link to employment

So if work hours are 9.00  am to 5.00 pm does this mean that what people do between 5.00 and 9.00 is off limits to the scrutiny and sanction of employers?

The issue is coming into focus with the explosion of electronic communications.

The internet and social media allow people to have a very public soap box for their views and activities and for employers to be part of the audience, even if they weren’t specifically invited.

Further, the internet may have meant that pornography no longer has to be purchased publicly but the risk of exposure to enjoying it has moved to a new dimension.

As with every innovation it’s all good fun until someone gets hurt.

Take Ms Fitzgerald, a hairdresser who complained on Facebook about the amount of her Christmas bonus.  Sacked after her employer read the post, she had to endure a conciliation and a one day hearing to be told that her dismissal was unfair and be awarded $2,300.00 compensation: Fitzgerald v Dianna Smith T/as Escape Hair Design [2010] FWA 7358.

Or take Mr Griffiths, a 25 year career public servant.  He had viewed pornography on a work laptop after hours at home, using his own internet service provider on eight occasions over three weeks.  He was detected when the laptop was audited and his browsing history analysed.  Mr Griffiths did himself no favours by first maintaining the access was accidental and then that it was “research”: Griffiths v Rose [2011] FCA 30.  His dismissal was upheld.

Or take Mr Stutsel, a 22 year veteran with Linfox.  Armed with a Facebook page that his wife and daughter had established for him he posted abuse against two of his managers, which resulted in his sacking when Linfox representatives discovered it.

Mr Stutsel was luckier than Mr Griffiths but had to work harder than Ms Fitzgerald to find out that his dismissal was unfair and be reinstated.

Linfox appealed to both the Full Bench of Fair Work Australia and then to the Full Court of the Federal Court in vain.

It is difficult to read the FWA decisions: [2011] FWA 844 and [2012] FWAFB 7097, and not be left with the impression that the real evil in the case was not what Mr Stutsel said but that Linfox did not have a formal policy on social media.

The one thing Ms Fitzgerald, Mr Griffiths and Mr Stutsel all have in common is that they did not intend their employers to find out about what they were doing.  Had any of what they did occurred in office hours, there is little question that all sackings would have been upheld.

So as great and convenient as the internet is, people use it at the peril of their employment even out of hours.

 

Greg Doran
Director

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

 

Read More»

Being bullied at work? The Fair Work Commission is here to help (but read the fine print)

From 1 January 2014 bullied workers may be able to apply to the Fair Work Commission for an order for the bullying to stop. 

Changes to the Fair Work Act 2009 enacted by the previous Labor government and kept in place by the current coalition government (in a rare example of bipartisan support on an issue) are designed to cover not only employees but contractors, subcontractors, volunteers and even work experience students.

Everyone within those categories in Victoria, the ACT and the NT is covered by the changes.  In the other States, it's a bit of a patchwork. If bullied workers either work for or at a business that is a sole trader or partnership rather than a company, they may miss out.

This less than ideal situation reflects the federal nature of government in Australia and the limits on the Commonwealth's legislative powers imposed by the Constitution.  Victoria is able to take advantage of the fact that it referred its power to make laws on workplace relations matters to the Commonwealth over 20 years ago.

Still something is better than nothing and the changes offer workers the opportunity to deal with issues that are often addressed clumsily and ineffectively through workplace health and safety laws or workers compensation laws.

Click here to view my summary of what is about to become Part 6-4B of the Fair Work Act 2009.

Of course if a workplace has the right practices and policies in place bullying should never happen or if it does it should be dealt with before it becomes a major issue. But we don't live in a perfect world, do we?  Time will tell if the changes will make a difference and help stamp out what some experts see as an endemic problem in Australian workplaces.

Greg Doran
Director

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

Read More»

Sexuality, gender identity, de facto relationships - now protected by the Fair Work Act

1.            Background

Since coming into operation on 1 July 2009, the Fair Work Act has protected employees (including potential employees) from discrimination based on various attributes.

Section 351 sets out the attributes, which include race, colour and marital status.

This provision prevents employers from taking “adverse action” against employees based on these grounds.

For an attribute to be protected by the Fair Work Act, it must also be protected by an anti‑discrimination law.  For example, discrimination against a person because of race is unlawful under the Racial Discrimination Act 1975.

In practical terms, adverse action usually means dismissal, suspension, pay cuts or discriminating between an employee and other employees.  Adverse action also includes action that “injures” employees - a term that has been defined as widely as to include the deterioration of an employee’s relationship with the employer.

2.            What has changed?

As of 1 August 2013, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 came into effect, extending the grounds of discrimination in the Sex Discrimination Act and thus the Fair Work Act to include:

·                     sexual orientation,

·                     gender identity,

·                     intersex status, and

·                     relationship status.

3.            What is protected and examples of potential discrimination

Sexual orientation: an employee’s sexual orientation, whether this be sex, different sex or both sexes.

Example of discrimination: an employer of a gay club who does not employ heterosexual bar staff may be discriminating against potential employees on the basis of their sexual orientation.

Gender identity: an employee’s gender‑related identity, appearance, mannerisms or other gender‑related characteristics (whether by way of medical intervention or not), with or without regard to their designated sex at birth.

Example of discrimination: an employer with a uniform policy based on sex.

Intersex status: having physical, hormonal or genetic features that are neither wholly male nor wholly female, a combination of female and male, or neither female nor male.

Example of discrimination: an employer who requires potential employees to tick male or female on job application forms may be discriminating against potential employees who do not identify as either male or female.

Relationship status: as opposed to marital status, this includes de facto couples of the same or different sex.

Example: a retail employer who permits employees’ spouses to have a discount may be discriminating against employees in de facto relationships.

4.            What do you need to do?

These amendments to the Fair Work Act demonstrate its ongoing commitment to the protection of employees, and a broader recognition of evolving social attitudes.

As the Coalition’s election policy has not included proposed changes to workplace relations, we can expect these grounds of protection to remain even with a change of government on 7 September 2013.

We recommend employers inform and advise their staff about the changes. 

Key decision makers in human resources and upper management need to be well informed about what the new protected attributes cover and how this may affect the way your company is run.

A good starting point is to review and update all company policies – starting with the anti-discrimination and bullying policies and inform employees of their rights and responsibilities.

Emma Pollett-Sutton
Lawyer

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

Read More»

Amendments to the Fair Work Act

Important changes came into effect from 1 January 2013 in relation to the Fair Work Act. 

These changes include the renaming of Fair Work Australia as Fair Work Commission (“the Commission”).  Other changes include the following:

Unfair Dismissal

The time limit for lodging unfair dismissal applications increased from 14 to 21 days, for dismissals occurring from 1 January 2013.  

Also the Commission has been given additional powers to dismiss unfair dismissal applications and make cost orders against parties, lawyers and paid agents. 

General Protections

The time limit for lodging a general protections dismissal application was reduced from 60 to 21 days, for dismissals occurring from 1 January 2013.

This change standardises the time limit for lodging dismissal applications.

There continues to be a 6 year time limit on an application for a breach of a general protection where no dismissal results. 

Enterprise Agreements

Enterprise agreements cannot be made with a single employee and terms allowing employees to opt out of enterprise agreements are now prohibited. 

 

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

Read More»

Unfair dismissal and the Virgin Airlines case

A recent decision of the Fair Work Commission serves as a warning to all employers concerning the need to act fairly and the need to have a valid reason if an employer is contemplating a dismissal.

In a July 2013 decision of the full bench of the Fair Work Commission in Virgin Airlines v David Taleski  the Commission upheld a decision of Commissioner Cribb to reinstate a flight attendant.  Mr Taleski was dismissed by Virgin Airlines because he failed to comply with its requirement about his appearance and in particular, the length of his hair.

Mr Taleski had started to grow his hair long for religious reasons associated with the tenth anniversary of his mother’s death.  Mr Taleski had first been allowed to wear a wig as a temporary measure but was subsequently sacked when he indicated he was never going to change his hairstyle to comply with Virgin Airlines male dress code known as its  “Look Book”.

Mr Taleski was dismissed in circumstances where:

1.            He had worked with Virgin Airlines for 4 years.

2.            He had an unblemished employment record.

3.            He had a diagnosed mental health condition that prevented him from cutting his hair.

4.            He had attempted to comply with Virgin Airlines “Look Book” requirements by trying different hair styles and wearing a wig.

5.            He was prepared to wear a wig to comply with the in house “Look Book” and to provide Virgin Airlines with his doctor’s clinical assessment and diagnosis and to continue to undergo treatment for his mental health issues.

6.            Virgin Airlines did not consistently apply its grooming requirements, as another employee had at an earlier time, been given an exemption from the code for its Look Book requirements..

The full bench of the Fair Work Commission upheld the initial decision that Mr Taleski had attempted to comply with its hair dress code, and was not given an opportunity to respond to any valid reason for his dismissal, because the decision to terminate his employment was made before he had an opportunity to respond.

The lessons for all employers arising out of this decision include:

1.            Do not insist on strict compliance with grooming codes or dress standards if to do so would on medical evidence cause severe stress.

2.            Do not predetermine an outcome (i.e. decision to dismiss) before putting the allegation formally to the employee.

3.            Apply codes and dress standards consistently between all employees.

Philip Brewin
Accredited Workplace Relations Specialist

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

Read More»

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.

Read More»