Stephen Edwards LLB Call now 0427329514   -   Employment Law and Fair Work Consultant
Blog and issues commentary

Withholding entitlements

Is accrued annual leave payable where an employee is summarily dismissed for misconduct? The answer is that sec 90(2) of the Fair Work Act clearly provides that accrued annual leave must be paid put upon termination, and although I have read that there are some enterprise agreements which purport to entitle an employer to withhold these monies where the dismissal is summary for serious misconduct, the fact is that such a provision is void under sec 55 as is inconsistent with the National Employment Standards (NES).

Unfair dismissal Perth

The importance of being honest about qualifications held during a job interview was at the centre of an unfair dismissal case in the Fair Work Commission recently. In Jaques v McCarroll Motor Group (2014) FWC 5793 delivered on 22 August, Commissioner Cambridge dismissed an application for an unfair dismissal remedy by a mechanic who had been less that truthful about his progress through a technical course which the employer was able to demonstrate was a required skill. The Commission concluded that the misleading representations by the employee about how far through the course he had progress was sufficient to "clearly and understandably demolish the trust and confidence necessary to maintain the employment relationship".

What is industrial action?

What constitutes industrial action and can thus be protected under the protected industrial action provisions of the Fair Work Act? That was the question before the Fair Work Commission in AMACSU v Lend Lease (2014) FWC 5676 delivered on 20 August 2014. Commisioner Bissett determined that each of the following activities can constitute legitimate industrial action.
The union proposed and the employer opposed a plan to
Attach union and industrial campaign-related material to outgoing mail or email, and add it to Lend Lease materials and displays;

Fair Work Commission procedures; unfair dismissal

In Nicolas v Nortask Pty Ltd (2014) FWC 5324 delivered on 11 August 2014, the Fair Work Commission has refused an application by an applicant for an unfair dismissal remedy after failed conciliation to amend the claim to be a general protections claim and also rejected an application for an extension of time to bring the latter because insufficient material had been adduced for an extension. One of the factors which appears to have been regarded as material by the Commission was that the applicant appeared to be protected from unfair dismissal.  

Summary dismissal for misconduct

The distinction between a failure to follow policies and procedures laid down by an employer which may not justify dismissal on the one hand and a refusal to carry out and perform lawful and reasonable instructions from an employer to an employee amounting to “rank insubordination” justifying dismissal on the other is at the heart of a decision of the Fair Work Commission. Commissioner Cloghan concluded that the employee "not only refused to carry out lawful and reasonable directions" but "his behaviour, over a long period of time, became inconsistent with the contract of his employment".

Allowances and the high income threshold

In the Pilbara of Western Australia, and other mining regions, it is a common practice for employees, particularly those who are fly in and fly out, to be paid allowances to compensate the employee for the fact and effect of extensive travel times, long hours, hostile working conditions and being away from family for extended periods. Under the Fair Work Act 2009, employees of national system employers (ie for the purposes of this blog, commercial companies), are not protected from unfair dismissal unless, inter alia, their employment is covered by an enterprise agreement, modern award or that they earn less than the high income threshold, an annual rate of earnings calculated under a complicated formula which the Fair Work Regulations provide for.

Unfair dismissal despite misconduct

The Fair Work Commission has ordered compensation to be paid to a truck driver who was dismissed for urinating outside a client’s warehouse holding that he was unfairly dismissed despite the Commission finding that the employer, a transport company, had a valid reason for the dismissal on the basis that the driver's "unprofessional" and "unacceptable" conduct and failure to adequately explain his actions during the investigation provided his employer with a valid reason to dismiss him.

Obligation to advise Centrelink of certain dismissals

Under sec 530 of the Fair Work Act 2009, an employer which decides to dismiss 15 or more employees for reasons of an economic, structural or similar nature must give written notice to the CEO of Centrelink and must be given in the prescribed form (see Reg 3.30), as soon as practicable after the taking of the decision and before dismissing the employees in accordance with the decision. Under secs 545(1) and 530(5), the Federal Court may make an order requiring an employer who contravenes these provisions not to dismiss an employee or employees, but may not grant an injunction in those terms for some  odd reason.

Continuity of service during protected industrial action

Sec 416A of the Fair Work Act provides that regulations may be made prescribing the purposes for which continuity of service is to be deemed to have been uninterrupted by an employer taking lawful response action to protected industrial action in enterprise bargaining. Sec 416 provides that an employer may refuse to pay employees for the period during which such action is taken however the effect of the laws is that there will be no interruption to continuity of service in relation to superannuation, remuneration and promotion as affected by seniority and all NES entitlements.(see Reg 3.09)

Private arbitration and Fair Work jurisdiction

The Fair Work Commission has rejected an argument by an employer to the effect that the hearing of an unfair dismissal case should be deferred pending private arbitration of the issue. An employment contract provided that any disputes about an employment relationship should be determined by private arbitration and the employer sought to rely upon it to limit the jurisdiction of the Commission.  However Commissioner Cloghan held that the relationship was not covered by the WA Commercial Arbitration Act and was able therefore to distinguish a Supreme Court decision which had held that civil litigation should be deferred pending a private arbitration agreed between the parties.

Reasonable accommodation in discrimination law

Australian employment law provides that to avoid potential unlawful discrimination in the workplace, employers are required to take positive steps to modify the workplace if in doing so a person with a disability may undertake work which without the modification (or acquisition of equipment) that person could not physically perform. In such a situation, the legal issue of “reasonable accommodation” may arise. This means that it might be unlawful to discriminate against a disabled employee (or job applicant) if it is not unreasonable for the employer to provide the employee with assistance to perform the job.

Length of notice of termination

Here is another case in which an employee has received a very significant award of damages for breach of contract based upon a claim for a long period of notice of termination to be implied into a contract of employment. In this case the award was based upon an implied term of 10 months’ notice due to all of the circumstances including seniority of position, length of service, importance to the employer and so forth.

Ma v Expeditors International Pty Ltd (2014) NSWSC 859 delivered on 30 June 2014

Length of notice of termination

The most senior South Australian appeal court has upheld a finding by a single judge of the Supreme Court to the effect that a sacked local government CEO was entitled to a year’s notice of termination of employment in the absence of a specific provision dealing with the length of notice required. The NES table is only applicable where the instrument is silent and there is no room to find the implication of a longer term.

District Council of Barunga West v Hand (2014) SASCFC delivered on  6 August 2014

Interpreting enterprise agreements and modern awards

The Federal Court has adopted a sensible and practical approach to the interpretation of an award in determining that it would apply a common understanding and industry practice to over-rule the literal meaning. The relevant award, if interpreted literally, would have provided paid crib breaks to workers working between 6am and 2.30pm on the basis that they are shift workers rather than day workers, and the Court had before it evidence that if the union’s argument was correct, 99.9% of employees in the industry would be classed as shift workers even though historically they were not treated as such.

Deductions from salary or wages

Section 326 of the Fair Work Act 2009 provides that modern awards, enterprise agreements and common law contracts of employment have no effect to the extent to which they purport to permit an employer to make deductions from remuneration where to do so would directly or indirectly benefit the employer and are unreasonable in all of the circumstances or if the employee is under the age of 18 years the deduction is not approved in writing by a parent or guardian. However it is also provided that the Fair Work Regulations may prescribe circumstances in which a deduction is or is not reasonable.

Individual flexibility arrangements

Sec 202 of the Fair Work Act requires all enterprise agreements to contains a flexibility term the effect of which is to enable an employer and an employee to Agree to an individual flexibility arrangement. If an enterprise agreement does not, then it is deemed by sec 202 and regulation 2.08 to be as follows.
             (1)  An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

Award and enterprise agreement free employees

Sec 129 of the Fair Work Act permits regulations to be made which permit employers and employees who are award or enterprise agreement free to agree on matters which would otherwise contravene the National Employment Standards and to prohibit the making of such agreement which might otherwise be permitted by the NES. Not surprisingly no regulations about the latter have been made but regulation 2.03 allows such parties to agree to the provision of  (a)  extra annual leave in exchange for foregoing an equivalent amount of pay; and  (b)  extra personal or carer's leave in exchange for foregoing an equivalent amount of pay.

Dismissal for temporary absence from work

The general protections provisions of the Fair Work Act 2009 render it unlawful for an employer to dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Regulations (sec 352).
An illness or injury is not a prescribed kind of illness or injury if: (a)  either: (i)  the employee's absence extends for more than 3 months; or (ii)  the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries) (regulation 3.

Suppressing identity of parties and witnesses

The Fair Work Commission has power to order the suppression of the identity of parties to proceedings before it, under secs 592 and 593, but it has ruled that mere embarrassment will not be sufficient for it to exercise its discretionary powers to do so, even in anti bullying cases. It has pointed out the there is a “presumption” that they will be conducted in open under the open justice principles generally followed by the Australian judicial system. 

Serious misconduct and unfair dismissal

The Fair Work Commission has upheld the dismissal of an employee by rejecting his claim for an unfair dismissal remedy where the employee was a member of an airport baggage screening team who refused to follow a policy which required those employees to telephone their supervisor and await a replacement before taking a toilet break.  Commissioner Lee concluded that in the circumstances the policy was entirely reasonable and lawful and that although he would not have upheld the dismissal for one breach, the employee’s acknowledged declaration that he would not to comply with the policy constituted serious misconduct warranting dismissal.
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Withholding entitlements
Unfair dismissal Perth
What is industrial action?
Fair Work Commission procedures; unfair dismissal
Summary dismissal for misconduct

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