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Fair Work Commission – Stop Bullying Order Rejected

Background
In B v Park Beach Bowling Club Limited [2017], the Fair Work Commission rejected an application for a stop bullying order on the basis that there was no evidence of repeated unreasonable conduct by the employer.

Facts/Findings
• The complainant was employed as a casual food and bar attendant at a club
• She alleged that the administration and events manager and the CEO had bullied her within the meaning of bullying under section 789FD of the Fair Work Act 2009. She applied to the Fair Work Commission for a stop bullying order
• The bullying related to four incidents, and the findings were as follows: [...]  READ MORE →

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Fair Work Commission – Employer Restrained

Background

An interim order has been issued by the Fair Work Commission to restrain an employer, Bendigo Kangan Institute t/a Bendigo TAFE, from taking disciplinary action against an executive director. The executive director had filed an anti-bullying application against her employer prior to the allegations of misconducted directed at her.

The interim order is the first of its kind in the Fair Work Commission anti-bullying jurisdiction.

Facts

In essence:

• the executive director filed a bullying complaint against other directors in March this year with the Fair Work Commission
• Bendigo TAFE alleged misconduct on behalf of the executive director. The employer used a third party to conduct an investigation into her alleged misconduct under the supervision of the board with the exception of the directors named in her bullying complaint
• Bendigo TAFE stood her down on full pay on March 28 and required her to attend a management meeting on April 3 for her to respond to the investigation’s draft findings
• the executive director was diagnosed with depressive illness and was on sick leave since March 30
• she was certified medically unfit until April 23 and did not attend the meeting on April 3
• the executive director sought an interim order from the Fair Work Commission to restrain Bendigo TAFE from potentially dismissing her because her anti-bullying application would fail otherwise
• Bendigo TAFE argued the prospective injunction restraining disciplinary action against the executive director was beyond the Fair Work Commission’s powers [...]  READ MORE →

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Employment Law – Procedural Fairness and Employee Dismissals

Employment Law Background
The Fair Work Commission’s decision in DL v East Arnhem Regional Council [2017] highlights the importance of employers affording procedural fairness to employees in dismissal cases.

Facts
DL was a Municipal Services Supervisor for a Council. In this role, he was responsible for supervising two or three staff. At least two workers had lost their driving license

• In June 2016, one of the workers was driving a Council rubbish truck, when an incident caused the bumper of truck to be bent
• In August 2016, DL stated in an Accident & Incident Report that he was driving the truck. The form stated that by signing the form, the signatory was accepting that the information in the form was “true and correct”. DL signed this form
• A few weeks later, in September 2016, the Council alleged that DL stated in a tele-conference that “recently we had an incident where [we] knew that we had no licensed drivers but decided anyway to use the staff to operate the vehicle. The driver bent the bumper then I had to jump in and take the blame”
• In late August 2016, after DL had signed the form but before he admitted to not being the driver, DL had received a first and final warning in regard to alleged unsatisfactory performance, a lack of care in vehicle cleanliness, paperwork and maintenance
• DL was dismissed on the basis that he breached the Council’s code of conduct by falsifying a critical incident report, failing to comply with policies and procedures, not being truthful, not acting with integrity and not conducting himself in a proper manner [...]  READ MORE →

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Employment Law – Loss of Mutual Trust Causes Resignation

Employment Law – Background

Workplace relations between a surgeon and his practice manager had eroded to the extent that her subsequent resignation was held to be a constructive dismissal (meaning it was, in effect, a dismissal by the employer).

Employment Law – Facts

In essence:

• the practice manager was employed by an orthopaedic surgeon and developed a close friendship with the surgeon’s wife over several years
• the surgeon’s marriage ended in 2012 and the practice manager found out in 2013 from other employees about his new relationship with a nurse and she became upset because she was not informed about the marriage breakdown
• the surgeon employed the nurse to assist with patient care in 2014 and the practice manager’s workplace conduct changed including taking a Friday afternoon off without informing the surgeon, causing difficulties with the surgical list for the following week, writing terse emails, and refusing to teach the nurse office practices
• the surgeon requested her to remain professional and courteous in all her dealings
• in August 2016, the practice manager emailed the surgeon alleging verbal harassment and bullying from the surgeon and the nurse over the last three years was causing her stress
• after several attempted consultations the practice manager volunteered to resign, citing lack of loyalty and said to the surgeon “our relationship has ended”
• she sought an unfair dismissal remedy under the Fair Work Act 2009 because her termination was a constructive dismissal and had been harsh, unjust and/or unreasonable
Employment Law – Fair Work Commission Decision [...]  READ MORE →

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Employment Contracts and Procedural Fairness

Employment Law Background

The Fair Work Commission’s decision in DL v East Arnhem Regional Council [2017] highlights the importance of employers affording procedural fairness to employees in dismissal cases. Article Link: http://Article Link: https://workplaceinfo.com.au/termination/unfair-dismissal/cases/supervisor-unfairly-dismissed-while-on-final-warning-and-after-falsifying-accident-report#.WPVvOfmGNaQ

Facts

DL was a Municipal Services Supervisor for a Council. In this role, he was responsible for supervising two or three staff. At least two workers had lost their driving license [...]  READ MORE →

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Deed of Release prevented claim against Employer

Background

In a recent Federal Circuit Court decision, a college teacher who claimed she was suffering from a psychological disability attempted to render her Deed of Release – signed in 2007 – invalid. However, due to a lack of medical evidence her claim was unsuccessful.

The Facts [...]  READ MORE →

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Federal Government abolishes the 457 visa

On 18 April 2017, the Australian Federal Government announced the abolition of the subclass 457 visa program, to be replaced by two streams of ‘temporary skill shortage’ work visas for skilled foreign workers. Under the government’s plan, foreign skilled workers would be eligible for one of two visas – a ‘short-term’ two-year visa extendable for a further two years, and a ‘medium-term’ four year visa.

As part of the overhaul, the government plans to substantially reduce the number of eligible occupations and positions subject to work visas. Occupations slated for elimination include farmers, actors, musicians and artists, journalists and media presenters, commissioned fire and police officers, and a variety of administrative managerial positions. [...]  READ MORE →

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Consultation – Essential for a ‘Genuine Redundancy’

Most employers are generally aware that a ‘genuine redundancy’ is a complete defence to an unfair dismissal claim. However, a redundancy is not rendered ‘genuine’ simply because the redundancy is justified or necessary. The Fair Work Act 2009 (‘the FW Act’) requires employers to undertake a consultation process prior to the implementation of redundancies.

The consultation process requires employers to give employees adequate notice of potential workplace changes (i.e. redundancies), and discuss what steps can be taken to mitigate the effects of the workplace changes. [...]  READ MORE →

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Swearing Did Not Warrant Summary Dismissal

The Fair Work Commission has awarded an Operations Manager $27,787 in compensation following a finding that swearing at another manager was not sufficient to justify his summary dismissal.

Facts

In essence:

  • On or around July 2016, the Operations Manager had a heated argument with the national WHS Manager of Precepts Services Pty Limited (‘the employer’). The WHS Manager happened to be the wife of the employer’s Managing Director.
  • Prior to the argument, the WHS Manager had a meeting with the Operations Manager’s son – who was employed by the employer as an apprentice electrician – in relation to concerns about his performance.
  • The Operations Manager questioned why he was not invited to attend his son’s performance review meeting, and allegedly said to the WHS manager: “Your sneaky husband made that decision, did he?”
  • The WHS manager asked what he had meant by “sneaky”. In response, the Operations Manager referred to a previous phone conversation between his (i.e. the Operations Manager’s) wife and the Managing Director in relation to a dispute over their son’s wages. The Operations Manager relayed that during the phone conversation, the managing director allegedly swore at the Operations Manager’s wife, saying to her “f-ck off, you do not have your facts right”, and then hung up on her.
  • The Operations Manager then allegedly leant over the table of the WHS manager and asked her twice: “How would you f-cking feel if I said get f-cked to you?”
  • In September 2016, the Managing Director directed the Operations Manager to attend a meeting to discuss allegations of misconduct made against him. The Operations Manager attended the meeting, during which he was summarily dismissed.
  • According to the Operations Manager, the Managing Director had a habit of swearing at employees including his own wife (the WHS manager), and regularly punched and kicked walls in the office.

Swearing not sufficient to justify summary dismissal [...]  READ MORE →

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Q&A – Dismissal of employees whilst on leave

A common question raised by employers is whether an employee can be dismissed whilst the employee is absent on personal/carer’s leave or annual leave. The question is common because employees often retreat onto leave when the employment relationship becomes dysfunctional, due to stress arising from disciplinary action, or to delay their dismissal.

There is no universal statutory prohibition on dismissing employees who are absent on personal leave or annual leave. However there are significant risks for doing so. [...]  READ MORE →

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Employment Law – Medical Certificates

Employment Law Background

Common questions which often arise for employers are:

  • can an employer insist that an employee produce a medical certificate as proof of injury or illness?
  • can an employer insist on this if it is in a company policy or a requirement in an employment contract?
  • can an employee provide evidence other than a medical certificate?

In respect of the Fair Work Act:

  • an employer may require an employee to provide evidence “that would satisfy a reasonable person” that the employee was entitled to take personal/carer’s leave
  • the usual evidence is either a medical certificate or a statutory declaration
  • in saying this, the Fair Work Act does not refer to a ‘medical practitioner’, ‘medical certificate’ or a ‘registered health practitioner’ in relation to personal/carer’s leave
  • under s12 of the Fair Work Act, a medical certificate must be produced only in relation to unpaid maternity leave pursuant to the National Employment Standards (specifically related to ‘paid no safe job leave’, ‘special maternity leave’ and ‘transfer to safe job’)

In respect of modern awards:

  • most modern awards do not specify the type of evidence to be provided by an employee
  • modern awards need to comply with the requirements of the Fair Work Act

In respect of a company policy and an employment contract:

  • whilst they can suggest forms of evidence they cannot state that the only evidence that can be provided is a medical certificate or statutory declaration
  • they are subject to the provisions of the applicable modern award (or enterprise agreement) and the Fair Work Act

By way of general guidance:

  • for single-day absences, requesting a statutory declaration is usually reasonable
  • for distinct patterns of repeated single-day absences, absences before or after public holidays or weekends, or absences of three days or more, requesting a medical certificate is usually reasonable
  • depending upon the condition which prevented the employee from attending the workplace, employers may be able to refuse to accept a certificate from a registered health practitioner (other than a general practitioner) such as dentists and physiotherapists, however, this refusal should be exercised with a high level of caution
  • Pharmacy Guild of Australia current guidelines indicate pharmacists may issue certificates but they are limited to the supply, compounding or dispensing of medicines AND the provision of professional pharmacy services, including advice on minor conditions and the effective and safe use of medicines AND circumstances where they can reasonably form a view as to an employee’s fitness for work or, as relevant, to the illness or injury of the relevant member of the household or the immediate family

Workplace Law Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • seek the assistance of an employment lawyer to understand the impacts of these employment law requirements
  • ensure employment law policies comply with the Fair Work Act and relevant modern awards and enterprise agreements
  • ensure employment contracts comply with the Fair Work Act and relevant modern awards and enterprise agreements
  • review employment contracts and employment law policies at least once every 12 months to ensure they remain current with workplace practices and all relevant employment laws

More Information
For further information regarding any matter to do with workplace law, please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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Fair Work Commission – Judgment on Email

Background
In the Fair Work Commission decision of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd, the Fair Work Commission upheld the dismissal of an accounts manager for making offensive comments about clients in an email she accidentally sent to them.

Facts
In essence:

  • a cosmetic company employer summarily dismissed their key accounts manager who had worked for them for 15 years and who had no prior misconduct warnings, for breaching the employer’s employment law policies (being their code of conduct and IT policies)
  • the accounts manager had written an abusive email about the employer’s clients which she had intended to send to a contractor, who was also her friend, however, the clients were accidentally copied into this email
  • the chief executive of a client contacted the employer’s sales director demanding that there be consequences for the employee’s actions and that he would no longer deal with any company represented by that accounts manager
  • although she apologised for sending the email and sharing the client’s details, she explained that she had accidently sent the email to the client because she was having “recent issues with concentration and focus”
  • she also claimed that she was suffering post-traumatic stress disorder, having performance difficulties, and had inadequate support from management in implementing organisational change

Decision

The Fair Work Commission stated:

  • the account manager’s actions constituted a valid reason for dismissal
  • the employee’s actions breached the employer’s employment law policies (ie, the code of conduct and IT user conduct policies)
  • that even if the comments were not emailed to clients, her comments were “entirely inappropriate”, particularly because it was her job as accounts manager, “to manage relations with key customers”
  • the fact that the email was sent to clients ”greatly multiplied the gravity of the misconduct”
  • the employer had taken appropriate action to the incident in allowing the account manager to respond by email when she was too unwell to attend a meeting and then taking her explanation into account (and this included paying the employee in lieu of notice because she did not mean to send the clients the email)
  • that although the employee had apologised for her actions and had been with the company for 15 years, these factors did not “outweigh the gravity of the misconduct so as to render the dismissal harsh

Workplace Law Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision where they have a similar workplace matter
  • draft proper employment law policies governing workplace conduct
  • as necessary include conduct provisions in an employment contract and ramifications for breach
  • train staff about those employment law policies
  • ensure compliance with employment contracts and employment law policies
  • fairly, properly, consistently and lawfully respond to breaches of employment contracts and employment law policies (ie, on a case-by-case and factual scenario basis)
  • understand what conduct provisions may be contained in an applicable modern awards or enterprise agreement that need to be taken into account and complied with

More Information

For further information regarding any matter to do with workplace law, please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →