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

Social media in the workplace

In re Broadmeadows Disability Services, (2011) FWA 4063 the Fair Work Commission in determining whether under the BOOT test an enterprise agreement should be registered refused to register a clause of a proposed  enterprise agreement which purported to prohibit the discussion of workplace issues in social media. The Commission observed that this was not a restriction which the common law recognized.

Lawful and reeasonable instruction; unfair dismissal

In what I regard as a controversial decision, in the sense that I am unconvinced by its reasoning but acknowledge that it falls within what might be regarded as a discretionary area and not necessarily easily appealable, a Fair Work Commissioner has upheld the dismissal of an employee who refused to answer questions about whether her fiancé, who had been dismissed by the employer, had gone to work with a competitor.
Senior Deputy President Richards said the employee knew "without any ambiguity what the purposes of her employer's inquiries were, and had anticipated such questions might eventually be asked of her, but she refused to provide her employer with any answer to those inquiries, or to cooperate with him at the most elemental level".

Breach of contract; damages

In England the courts have held that, although they will recognize a common law implied contractual term of mutual trust and confidence, the fact that there is a vibrant statutory unfair dismissal jurisdiction means that those courts have declined to award damages for breach of contract if the breach of the implied term occurs in the dismissal. In other words the English courts have refused to step on the shoes of the British Parliament and have recognized that the statutory context should constitute a code for unfair dismissal remedies.

What is a workplace right?

The very vexed question of what constitutes a workplace right has again been illustrated in a Federal Court decision in which the Court was being asked to grant an interim injunction to restrain Queensland prison authorities from continuing the suspension of a prison officer who had granted permission for her to be quoted in the media as raising safety issues in the workplace. Justice Collier pointed out that the conduct of speaking publicly to the media was a contravention of the applicable enterprise agreement and in any event said that he was not “persuaded at this stage” that to do so was the exercise of a workplace right and thus protected from adverse action.

On call entitlements

The Fair Work Commission has clarified that an employee is not required to be on call whilst on annual leave, and that unless the contract expressly provides otherwise, holidays are entitled to be taken uninterrupted. Furthermore an employer does not have the right to direct an employee to work extra hours, once again unless the contract specifies so. In this case an employer was successful in winning an unfair dismissal remedy when an employer terminated his employment for refusing to take calls whilst on leave and declining to work extra hours.

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.
RSS

Recent Posts

Social media in the workplace
Lawful and reeasonable instruction; unfair dismissal
Breach of contract; damages
What is a workplace right?
On call entitlements

Categories

Absences from work
Adverse action
Annual leave
Award and agreement free
Award entitlements
Bargaining
Breach of contract
Bringing actions for unfair dismissal
Bullying at work
Casual employees
Compensation for unfair dismissal
Compensation in employment
Compliance
Conditions of employment
Consultation required in the workplace
Contract of employment terms
Costs
Criminal convictions and the workplace
Defamation in the workplace
Demotion at work
Disciplinary action in the workplace
Discrimination at work
Dismissal
Dismissal procedures
Dismissal remedies
Dress codes in the workplace
Drug testing in the workplace
Email policies
Employee incentive scemes
Employee records
Employee rights
Employee rights in a transfer of business
Employment Advice
Employment contracts and the law
Employment remuneration issues
Enforcing employment contracts
Enterprise agreements
Enterprise bargaining
Equal Opportunity
Fair Work Act
Fair Work Commission practice direction
Fair Work Commission procedures
Fair Work procedures
Fair Work remedies
Fair Work time limits
Flexible working arrangements
General protections
Government
Grounds for dismissal
Guarantee of annual earnings
Harassment at work
High income threshold
How workplace rights are protected
Implied terms and conditions of employment
Independent contractors
Individual flexibility arrangements
Industrial action
Industrial awards
Injunctions
Instructions by an employer
Interesting cases
Internet at work
Interpreting awards and enterprise agreeents
Jurisdiction
Lawful and reasonable directions
Legal issues in employment
Legal Professional Privilege
Loadings
Long service leave
Lying in enterprise bargaining
Managing poor performance
Minimum entitlements
Mobile phone records
Modern awards
NES paid leave
Notice periods for termination of employment
Offer of alternative employment
Parental and maternity leave
Parental leave
Payment of remuneration
Position descriptions
Privacy in the workplace
Public holidays
Recording conversations in the workplace
Recovering entitlements
Redundancy
Redundancy concepts
Reinstatement
Remedies
Remedies in employment law
Representation in the Fair Work Commission
Resignation
Restraints of trade
Rosters and working hours
Salary, wages and remuneration
Settlement deed
Severance payments
Sick leave
Social media in the workplace
Soicial media in the workplace
Summary/instant dismssal
Superannuation
Termination of employment
Termination of Employment and Probation
Termination of employment by small businesses
Termination of empoyment
The Australian system of employment regulation
Time limits
Transmission/transfer of business
Tribunal procedures
Unfair dismissal
Unfair dismissal and small businesses
Visa laws and the workplace
Visa workng rights
Wages and salary
Western Australian workplace rights laws
Withholding entitlements
Workers compensation rights
Workplace bullying
Workplace health and safety
Workplace Right
Workplace rights
Wrongful dismissal
powered by

Website Builder provided by  Vistaprint