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

Adverse action for disability beyond 3 months

Sec 352 of the Fair Work Act renders 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. This provision is in the general protections provisions of the legislation. I have set out the regulation in this blog, however the regulations provide inter alia that an illness or injury is not prescribed if the employee’s absence exceeds 3 months.  
The Federal Court has however found that an employee with cancer who had been absent from work for 10 months could nonetheless bring proceedings for a contravention of t other Commonwealth laws.

Legal Professional Privilege

The Federal Court has ordered an employer to produce to an employee who has commenced proceedings for adverse action a copy of a report prepared by its lawyers into the circumstances of the publication of an e-mail and on which the employer allegedly based its decision to dismiss the employee. The Court rejected the employer’s argument that the report was the subject of legal professional privilege on the basis that while it had been produced for the purposes of the provision of legal advice, it nevertheless contained findings of fact which were relevant to the decision to dismiss, which of course is the integral issue in such cases.

Time limits

There is a 14 day time limit for bringing a general protections contravention application in the Federal Court following the issue of a sec 369 certificate by the Fair Work Commission.

Dress standards in the workplace

A union’s endeavour to have an award it manages amended in the award modernization process to prohibit retailers from requiring service staff to wear clothing which is humiliating, either from its tackiness (“I Love sex" T shirts )  covered in badges was at first rejected by the Fair Work Commission.
Commssioner Lewin at first instance held that the claim it did not fall within the list of award terms in section 139 of the Fair Work Act, and was not an "incidental term" under sec 142 because it was not essential to make another term operate in a practical way.

Workplace bullying concepts

The Fair Work Commission has rejected an application under sec 789FC of the Fair Work Act for an anti bullying order brought by an employee who complained of bullying when he was instructed to carry out a project which was not expressly within his position description.  Commissioner Cloghan, who sits in Perth, held that it was not unreasonable for an employee to be asked to perform a function which might not necessarily be covered by his PD observing that  it is not uncommon for position descriptions to be "couched in general terms and not contain each and every current or projected task to be undertaken", also pointing out that the particular  PD contained "no mention of specific projects".

Supervisors and enterprise agreements

The Fair Work Commission remains philosophically opposed to allowing supervisors to be covered by the same enterprise agreement which covers employees who they supervise ."They also represent employees who report to the supervisors. It would be fundamentally inappropriate to do anything other than to regard those unions as relevant bargaining representatives or to deprive them of the opportunity to express a position relative to the inclusion of the supervisors in the agreement given the stage reached in the bargaining process," the Commission has recently ruled.

Employee or independent contractor?

Morrow v Tattsbet Ltd (2014) FCCA 1327 delivered on 4 July 2014 is a useful decision of the Federal Circuit Court about a modern approach to distinguishing between an employee and independent contractor. In an action for adverse action by a former operator of a betting agency, the court concluded that notwithstanding that the applicant was responsible for deciding how best to run her agency to maximise its financial return and to employ people and set their pay rates, hours of work and conditions of employment, the applicant was in reality working in the business rather than “a business of her own” and she was thus an employee and capable of bringing the application.

Sexual harassment compensation

A Full Bench of the Federal Court of Australia has dramatically increased the compensation for the non-economic loss component of damages awarded to a female employee who was the victim of sexual harassment at work over a 6 month period and in doing so has re-written the Court’s view of the condemnation which it considers the public has for this conduct and its effect upon victims.
The Full Bench increased the award of damages for non-economic loss from $18,000 to $100,000. The judgments of the court make very interesting reading and are a powerful insight into the way some judges approach the task of analyzing the inter-play between society’s values and awards of damages.

Casual loading on overtime?

As a general rule, overtime payable to casual employees for overtime, or other work outside of ordinary hours where penalty rates might be called for, is calculated by reference to the rate for ordinary hours and not the causal rate which includes the standard 15% loading (which compensates casual employees for not having paid leave or guaranteed hours. However some industrial instruments provide that the rate is to include the penalty rate. An example is the Manufacturing and Associated Industries and Occupations Award 2010. Clause 14 of that modern award treats the casual loading of 15% as being included in what the awards terms the all purpose rate.

Redundancies during maternity leave

In a series of related cases, Justice White of the Federal Court of Australia has held that it is not unlawful for an employer to terminate the employment of a woman who is absent taking maternity leave, provided that the termination of employment is in no way motivated by considerations of gender, pregnancy or family responsibilities. Specifically, His Honour concluded that several redundancies which affected three women in that situation were not unlawful as contraventions of discriminations laws because they legitimately arose from restructuring of operations and economic strategies and were not because of the pregnancies.

Paid annual leave

The Fair Work Commission has determined that it is not permissible to incorporate a payment for annual leave into an hourly rate of pay in an enterprise agreement because to do so is to exclude annual leave contrary to the NES; furthermore, so the decision holds, such an arrangement offends the provision which requires annual leave to be paid at the base rate of pay at the time the leave is taken and “paid annual leave” means annual leave to be taken with pay.
Re Caravan Building Pty Ltd [2014] FWCFB 3202

Intent required for misconduct in the worpkplace

Lawyers call the concept of responsibility depending upon metal capacity and intent as "means rea". The need for caution when considering the dismissal of an employee who is suffering mental illness is apparent in Salazar v John Holland Pty Ltd (2014) FWC 4030 delivered on 26 June 2014. The Commissioner of the Fair Work Commission was scathing of the decision makers not taking mental illness into consideration when dismissing an employee for misconduct.
"It is neither sound nor defensible to rely upon the conduct of an employee with an obvious mental health problem in drawing a conclusion that the conduct of the employee amounts to serious misconduct," Commissioner Ryan found.

Restructuring and genuine redundancy

On employer is entirely within its rights to restructure its operations and in the process redistribute the tasks which may have previously been performed by another employee, even if the new role has a need for higher qualifications and thus the occupant of that former position is no longer suitable to fill it.. The fact that much of the functionality of a former position still needs to be carried out does not mean that the position has not become legitimately redundant.  The question is whether the changes are reasonable from an operational perspective, in which event the Fair Work Commission will not interfere with the exercise of legitimate managerial prerogative.

Recovering entitlements

Proceedings for the recovery of remuneration earned under the terms of a modern award or enterprise agreement may be pursued in the Federal Circuit Court by way of civil penalty. Sec 323, Fair Work Act 2009. They may also be pursued in the Western Australian Industrial Magistrates Court upon application. The Fair Work Ombudsman, which can sometimes be persuaded to take proceedings without charge against an employer in default appears to prefer the former jurisdiction. I have previously blogged about the ability of an applicant in the Federal Circuit Court who is bringing such a case to tack on common law claims, for example for breach of contract, as well. This is called the accrued jurisdiction of the Federal Court, which includes the Federal Circuit Court.

Redundancy and small business employers

Almost unbelievably one member of staff at the Fair Work Ombudsman’s Office has orally advised one of my client’s, an employer, that the provisions of the Building and Construction General On-site Award 2010, a modern award, have the effect of requiring my client to pay redundancy pay to an employee who resigns, freely and voluntarily.
Clause 17 of the award contains an industry specific redundancy scheme which under sec  123 of the Fair Work Act does apply to the exclusion of the NES prescriptions as to redundancy.

Industry specific redundancy schemes

The Fair Work Act provides that as a general rule an employee of a small business is not entitled to redundancy compensation (sec 121). Small business employer is defined in sec 23. However the Act does allow for modern awards and enterprise agreements to make provision for “industry- specific redundancy schemes” to apply in which event they have the same enforceable effect as all lawful terms of modern awards and enterprise agreements (sec 123 (4)(b) and (c). An example of this can be found in clause17 of the Building and Construction General On-site Award 2010.

Individual flexibility arrangements

There is a distinction, rather significant, between the types of individual flexibility agreements which may be made under modern awards and those which can be made under enterprise agreements.
IFAs made under modern awards;
Individual flexibility terms within modern awards will only allow IFAs to vary arrangements for when work is performed such as working hours, overtime rates , penalty rates, allowances and leave loading.
This means that  modern award entitlements relating to any of these five award matters may be varied by agreement between an employer and an individual employee provided that, overall, the employee is ‘better off’ under the IFA at the time that the IFA is made.

Non compete conditions

An employee, who worked in a largely administrative position, has won 5 months’ compensation for unfair dismissal when her employment was terminated for a breach of her employment contract which contained a clause to the effect that she would not “work” for a competitor. The employee, operating on commission and as an independent contractor, sold products of a competitor but in a majority decision of a Full Bench, the Fair Work Commission held that in operating what was in effect her own business, she was not “working” for a competitor and was not thus in breach of any term of her employment agreement; thus there was no valid reason for the dismissal.

Dismissal by e-mail or text

The question whether an employee can be lawfully dismissed by electronic communication (e-mail or telephone  text) is the subject of Martin v Deco Glaze Pty Ltd (2011) FWA 6256 and Sokolovic v Modestie Fashion Australia Pty Ltd (2011) FWA 3063. Sec 117 of the Fair Work Act renders it unlawful for an employer to purport to dismiss an employee without written notice. Both cases expressly disapproved as a general rule of providing notice of dismissal by electronic means. However in Martin’s case the Commission did not construe the means of communication as a factor to render the dismissal unfair, even though the employee was absent from work and on sick leave.

Adverse action; no multiple actions

The question of what type of action might constitute multiple causes of action to trigger the provisions of the Fair Work Act which prohibit multiple actions over a dismissal (sec 732) was the centre of Qantas v Lawless (2014) FWCB 3582. In that case the question was whether a worker’s application under State workers’ compensation legislation to have a rehabilitation plane reviewed wasfor a remedy other than "reinstatement, re-employment or compensation in respect of a dismissal".
Inter alia a Full Bench of the Fair Work Commission has ruled that
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Adverse action for disability beyond 3 months
Legal Professional Privilege
Time limits
Dress standards in the workplace
Workplace bullying concepts

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