Workplace Solutions

A decision of the Fair Work Commission found that a public health organisation had unfairly dismissed an audio-typist based on his mental illness under workplace law.

The case highlights the need for employers to make informed decisions based on rational evidence and workplace law, when dealing with employees who may be affected by a mental illness.

Facts

• the employer received numerous complaints from other employees regarding emails described as “weird” and “disturbing” by the employee
• the employee agreed with the organisation’s relations manager to undergo a psychiatric evaluation
• the organisation received an independent medical report which diagnosed the employee with paranoid schizophrenia and advised that he did not have a current capacity for work
•  the employee was terminated on the basis of the report and inappropriate conduct.

Fair Work Commission Decision

The Fair Work Commission:

• found that the employee’s dismissal was unfair under workplace law
• held that the psychiatric report was not sufficient to terminate the employee under workplace law, because the doctor had not stated that the employee was permanently incapacitated
• stated that the organisation had ignored the expert evidence on the possibility of the employee returning to work at some stage and failed to explore these options

In regards to the inappropriate emails, the Fair Work Commission:

• held this was an insufficient reason to terminate the employee under workplace law, because the conduct had occurred prior to the medical assessment and when the employee was unaware of his illness. It was also not serious enough to warrant dismissal
• ordered that the employee be reinstated provided that he produced medical evidence that he was fit to return to work

Tips for Employers [...]  READ MORE →

Long Term Casuals – Business Flexibility or Risk?

You can call an apple an orange but if it’s really an apple the law is likely to treat it as such.

Many businesses engage employees as ‘casuals’ genuinely believing this will allow flexibility by paying a fixed rate, terminating without notice and reducing the risk of unfair dismissal, only to find that all of these risks under workplace law remain.

Following are just a few common pitfalls where employers may come unstuck in relation to its casuals under the current workplace law legislation. [...]  READ MORE →

The potential for conflict

The transfer of business provisions of the Fair Work Act  could potentially clash with the priority payment provisions of the Corporations Act (CA) when a company goes into administration.

This may occur when….

This is most likely to occur where Voluntary Administrators are appointed to a company that is part of a group of companies. If one of the associated entities takes on staff from the company in administration then a transfer of business occurs under the Fair Work Act. This means that the associated entity is obliged to recognise service-related entitlements, under workplace law. [...]  READ MORE →

Access to Unfair Dismissal Affected by High Income Threshold

The high income threshold will increase to $129,300 per annum effective from 1 July 2013. The current threshold is $123,300 and will remain in force until 30 June 2013.

Additionally, the maximum amount of compensation that can be awarded by the Fair Work Commission for unfair dismissal, under workplace law, will increase to $64,650 per annum. The amount of compensation is capped at the lesser of six months’ pay or half the high income threshold.

Why is the high income threshold important?

The high income threshold is important because it affects unfair dismissal eligibility and applicable award provisions in certain circumstances: [...]  READ MORE →

Restraint

A major provider of HR services hired an employee who was subject to a restraint, under an employment contract, in favour of a former employer.

Employee’s Explanation

The employee, a BDM, told his new employer that he had not taken any intellectual property belonging to his former employer and that his restraint clause, under his employment contract, was only for six months.

Actual Situation

The new employer later found out that the employee had taken a USB containing the previous employer’s confidential information and that he had distributed it to his new colleagues. [...]  READ MORE →

We’re sure you all waited for the Coalition’s announcement of their workplace law policy with bated breath – it looked to be a fine balancing act for Tony Abbott to keep the business sector happy (especially with looming pressure from the mining sector) and ensuring workers weren’t spooked by anything that resembled a return to Work Choices.

It is therefore unsurprising that the workplace law policy, announced on 9 May 2013 set out in a 38 page document, was described by political editor Michael Gordon as “every bit as cautious, politically canny and modest as we expected – not WorkChoices Lite, just Lite.” [...]  READ MORE →

Background

The aim of the amendments to the Corporations Act was to curb excessive termination benefits paid to company executives and improve accountability to shareholders.

Key Features

• termination benefits exceeding one year of the base salary for any person in a publicly listed company or the office holder in a private company who holds a ‘managerial or executive office’ (including Directors and employees whose details were included in the previous years’ directors report) require shareholder approval
• limited exceptions apply, including: benefits given under order of a court, a genuine superannuation contribution paid by an employee or employer and accrued benefits that are payable under law (such as annual leave, long service leave and sick leave)
• ‘base salary’ is interpreted broadly. Essentially, it amounts to the average annual base salary paid over the most recent three years, including cash salary, fees and non-monetary benefits. Specific rules apply where the person has been employed for less than three years
• the notice of a general meeting to consider executive termination benefits exceeding the threshold must be accompanied by details of the proposed payment
• an executive must not vote on a shareholder resolution that will confer on them a termination benefit in excess of the threshold
• all benefits received by an executive in excess of the threshold without shareholder approval must promptly be paid back

Maximum Penalties

Individuals and companies face potential maximum fines for non-compliance, amounting to:

• $19,800 for individuals and/or imprisonment for up to 6 months
• $99,000 for corporations

Tips for Employers

Companies considering a restructure of their senior management or taking any steps in connection with recruitment, retention or retirement of executives should:

• review termination provisions in employment contracts and any applicable redundancy policies / procedures to ensure compliance
• determine whether shareholder approval is required prior to paying any benefits on termination of employment for any reason
• seek advice from an employment lawyer in order to ensure they are compliant with workplace law

More Information

If you have concerns about how the amendments to the Corporations Act will affect your workplace, it is best to seek proper employment law advice. A workplace lawyer or employment relations expert can provide practical employment advice that ensures your procedures are consistent with the current workplace law. [...]  READ MORE →

The changes to the Fair Work Act, which commenced on 1 January 2013,  affect the following general areas that employers need to be aware of:

Unfair Dismissal

old workplace law:      employees had 14 days to file a claim

new workplace law:    employees have 21 days to file a claim (this is actually the same time limit that existed before the Fair Work Act began)

Adverse Action (also known as General Protections)

old workplace law:      employees had 60 days to file a claim if they had been dismissed [...]  READ MORE →

Committee makes recommendations to ‘stop’ the bullying.

The Committee has submitted its report on workplace bullying after hearing over 300 submissions from employees who have experienced workplace bullying, employers and key organisations. The report titled, “Workplace Bullying: We just want it to stop,” addresses the issue of workplace bullying, which causes $6-$36 billion a year in productivity losses. The inquiry into nationalising bullying laws and policies was triggered by the suicide of 19 year old café worker, Brodie Panlock, who was severely bullied at work. [...]  READ MORE →

Navigating the legal minefield of social media in the workplace

The rapid rise of social media has changed the way we interact with each other in an unprecedented way.

In Australia 62% of people use social media and the trends are rising. This has been a phenomenon the law has had to very quickly and reactively catch up with.

Whilst there is no doubt as to the popularity and commercial benefits of social media in the modern business world, the challenge for employers remains regulating its use in the workplace to manage loss of productivity, minimise exposure to discrimination, bullying and harassment claims and ensure protection of confidential information and business interests. [...]  READ MORE →

In Menere v Poolrite Equipment Pty Ltd and Anor [2012] QCAT 252, the employer successfully defended a sexual harassment claim by proving that it had an appropriate policy in place which was in line with employment law and implemented it through regular training.

Background and Facts

The employee:

• was a casual assembly line worker
• experienced a number of incidents of sexual harassment by a co-worker over a period of 3 months
• after a particularly disturbing incident, the employee approached his supervisor and was subsequently relocated to a different area of the warehouse
• the employee also approached the Health and Safety Officer who offered to report the matter to higher management, however, the employee declined and elected not to lodge a written report.

Findings

The Tribunal considered whether the employer had done enough to prevent such conduct from occurring in the workplace and key findings were:

• when the employee began employment in 2008 he received an induction handbook which went into detail about harassment and workplace bullying issues
• the handbook included expectations and responsibilities placed on employees regarding expected conduct in the workplace
• employees were required to sign the document acknowledging that they had read and understood it
• the employer had arranged employee training on sexual harassment within the workplace in 2007 and in 2009
• it was the role of the Health and Safety Officer to ensure that staff received appropriate training when required
• although the employee declined to take the matter further, management demonstrated their persistent effort to deal with the issue
• the sexual harassment incident was subsequently reported to the Operations Director who responded immediately by meeting with the employee and documenting his version of events
• following an investigation of the conduct, the co-worker was dismissed
• the Operations Manager advised the employee that in the future he should follow the policy and procedures straight away in order to deal with complaints and any potential issues as soon as they occur.

Lessons for Employers

In order to assist with defending a claim in a sexual harassment or bullying matter and access the beneficial protection obtained by the employer in this case it is important that an employer: [...]  READ MORE →

A recent court decision highlights the consequences for employers, HR managers and directors of incorrectly labelling a person a ‘contractor’.

In an employment law case prosecuted by the Fair Work Ombudsman against Centennial Financial Services Pty Ltd, its director and HR manager, staff were moved from being employees to contractors in an attempt to save money as the company was “bleeding financially”.

As far as the HR manager was concerned:

• he was aware of the material facts of the arrangement the company and its director wished to put in place
• he knew the arrangement was to stop staff being employees
• he knew the contractor agreement listed duties and KPI’s which were really no different from those of the employment contract
• he attended the meeting where the change from being an employee to a contractor was presented to staff and he explained the contractor agreement
• he argued he was simply following the directions of the company/its director, did not have input into the decisions made, and had no authority apart from what the director approved

Adverse Findings – Criticism of HR Manager [...]  READ MORE →