Workplace Solutions

A restraint of trade clause, is a clause inserted into an employment contract, which restrains an employee from working in a certain area, for a certain period of time. This employment contract clause may operate both while the employee is working for the employer, and after.

In Just Group Ltd v Peck,[1] the Supreme Court of Victoria (“the Court”) found that a restraint of trade clause in an employee’s employment contract was unreasonable and as a result, unenforceable. The restraint imposed by the employer in the employment contract, prevented the employee from working for 50 other brands. The Court found that the restraint of trade clause in the employment contract was far too broad and was therefore unreasonable. [...]  READ MORE →

In Barkhazen v Conair Australia Pty Ltd an employee took her personal HR file home in fear that the file may be altered, due to complaints she had made about a fellow employee and about improper or potentially illegal accounting practices engaged in by her employer. [1]

The Fair Work Commission accepted that if the employee genuinely believed that the employer may alter her file due to the complaints she had made, “there could be justification for her removal of her HR file”. However, after the complaints were investigated by the senior managers of the company, and found to be false, there “could be no justification for her retention of the employer’s property.” [...]  READ MORE →

If an employee takes a personnel file from their employee and refuses to return it when requested to do so by their employer, this may be grounds for dismissal under workplace law.

In Barkhazen v Conair Australia Pty Ltd the Fair Work Commission has found that an employee who took her own personnel file from her workplace and refused to return it after she was requested to do so at least seven times by her employer, was validly dismissed under workplace law, for failing to comply with a lawful and reasonable direction of the employer.[1] [...]  READ MORE →

In early 2015 the Fair Work Commission commenced its review of penalty rates, as part of a four year review of modern rewards, it must undertake under section 156 of the Fair Work Act. The Fair Work Commissions’ decision, regarding whether there should be any changes to penalty rates, was expected to be completed by October this year. However, the Fair Work Commission has now delayed their decision, and will be unlikely to make a decision by the end of this year.

The Fair Work Commissions report is reviewing the following awards: [...]  READ MORE →

The recent Queensland Industrial Relations Commission (“the Commission”) decision in East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator highlights the care that needs to be taken by employers, when undertaking investigations into allegations of workplace sexual harassment.[1] The Commission’s decision is a warning for employers, to ensure they are not overly formalistic when conducting investigations into alleged sexual harassment.

Key Facts

• The employee won a claim for workers compensation against his employer, after he suffered psychological injury as a result of his general managers actions in investigating allegations of sexual harassment, which had been made against him by another employee
• Without consulting HR, the General Manager asked the employee to attend a meeting to discuss the allegations. After the meeting, the employee was told by email that he was suspended on full pay until the employer’s investigation was concluded. He never returned to work.
• The employer appealed WorkCover’s acceptance of the workers’ compensation claim, arguing that even if he did suffer a psychological injury, it was the consequence of reasonable management action undertaken in a reasonable manner.

Formal Investigation Unwarranted

The Commission found that the employer’s investigations were “unnecessarily forensic” and “elaborate”. This was because despite the complainant’s reluctance, the employer had requested that she make formal allegations, in addition to conducting six formal interviews and insisting that several employees sign confidentiality agreements. [...]  READ MORE →

It can be difficult for employers to know when an employees out of hours conduct, can amount to grounds for dismissal under workplace law. The recent Fair Work Commission decision of Kedwell v Coal & Allied Mining Services Pty Limited[1] may provide employers with some guidance on this issue.

Key Facts

• Employee seeking relief from unfair dismissal under workplace law
• Employee had engaged in out of hours conduct, which involved him deliberately driving his car in front of another employee after work, in order to prevent the employee from being able to make a turn
• Employer conducted an investigation into the employee’s out of hours conduct and decided to dismiss him

Was the out of hours conduct a valid reason for the employee’s dismissal?

The Fair Work Commission identified that in order for out of hours conduct to be a valid reason for an employee’s dismissal, there would need to a sufficiently strong connection between the conduct and the employment relationship. In order to establish whether there was a sufficient connection in this case, the Fair Work Commission considered whether: [...]  READ MORE →

Section 117 of the Fair Work Act requires employers to give employees reasonable notice, when terminating their employment. The section sets out the minimum period of notice which must be given.  The minimum period will depend on the length of the employee’s continuous service, with the employer. If an employee has been employed for more than five years, then the employer must give the employee a minimum of four weeks’ notice.

How does section 117 apply when there is an employment contract without a notice provision? [...]  READ MORE →

Women are sometimes surprised to learn that they play a very important role in driving the economy and increasing workforce participation when they return to work after a period of parental leave.[1]

However, despite the fact that it is now the “norm” for a woman to return to work after the birth of a child, Australia’s female participation rate still tracks lower than that in other similar countries such as New Zealand and Canada and women continue to face challenges when balancing work and family commitments. [...]  READ MORE →

The recent Fair Work Commission decision of Morgan v Heritage Motels and Restaurants has reiterated how important it is for employers to understand their workplace law obligations when dealing with pregnant employees.

Key Facts

The employee:

• was a full-time manager at a motel
• was 8 months pregnant
• after taking sick leave, (for which she had a Doctor’s certificate) called her employer to notify them when she would be returning to work

The employer:

• told the employee, on the phone, that “[t]his isn’t a job for a pregnant person. I would hate for you to have a miscarriage here so I think you should finish up”
• knew that the employee intended to continue to perform her role for another four months, before she would take annual leave and then parental leave
• told the employee they were being dismissed because they were pregnant
• had never made any adverse comments or reports about the employee’s performance prior to her dismissal

Held

The Fair Work Commission held that the employee was unfairly dismissed. The employee was awarded $6,101.30 as compensation.

Reasoning

The Fair Work Commission found:

• the employee was protected from unfair dismissal under section 382 of the Fair Work Act, as she had completed the minimum employment period and her annual rate of earnings was less than the high income threshold
• the employee was unfairly dismissed under section 385 of the Fair Work Act, as:

a) she was dismissed

b) the employer did not comply with the Small Business Fair Dismissal Code [...]  READ MORE →

An employer has been fined $87,500 by the NSW District Court, after an incident where an employee fell 12 metres on a unit construction site. This decision highlights the need for employers to:

• understand their employment law obligations under the Work Health and Safety Act;
• put in place work health and safety manuals and policies in line with workplace law; and
• ensure employees are trained, understand and are implementing the relevant work health and safety manuals and policies.

In Safe Work (NSW) v JSN Hanna Pty Ltd,[1] the employer plead guilty for failing to comply with its duty under the Work Health and Safety Act and exposing employees to a risk of death or serious injury.

Facts:

The employee:

• was instructed to undertake work on a bay extension scaffold, which was not properly protected;
• placed his foot onto a piece of timber, which was not intended to be used as a platform. The piece of timber gave way and led to the employee falling 12 metres to the ground; and
• sustained head and neck injuries as a result of the fall.

The employer accepted that they had breached workplace law, by failing to:

• maintain the scaffolding at a safe standard;
• ensure their employees were not working at a height, without adequate fall protection; and
• ensure their employees had been trained in the relevant safe work procedures.

Sentencing Considerations [...]  READ MORE →

A recent decision of the Fair Work Commission, in favour of the employer, has reiterated how important it is for employers to:

• put in place relevant bullying and harassment policies, in line with applicable workplace law;
• ensure employees are trained in those policies; and
• follow a procedurally fair process when terminating employees for breaches of workplace policies.

In Mr R and Mr Y v Toll Holdings Ltd T/A Toll Group,[1] it was held that the dismissal of two employees (‘Mr R and Mr Y’), who had bullied and harassed a fellow employee (‘Mr A’), was not unfair or a breach of employment law under the Fair Work Act.

Facts:

Mr A made a workplace complaint alleging that Mr R and Mr Y had:

• given him a derogatory nickname which was used over a number of years, both to his face and behind his back;
• physically assaulted Mr A, by pushing him over into a truck; and
• made sexual remarks towards Mr A, whilst restraining him, which conveyed the impression to Mr A that they were about to sexually assault him.

In response to the ongoing bullying and harassment Mr A: [...]  READ MORE →

In the context of an unfair dismissal application, many findings in favour of the employee stem from the fact that, although there was a valid reason for the dismissal, there was also a procedural shortcoming in respect of the termination.

This can be galling for employers who are then faced with either an order for reinstatement or an order for the payment of compensation to the employee, despite the existence of a valid reason for the dismissal.

One issue that commonly arises is inconsistent or unequal treatment. [...]  READ MORE →