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Employment Law – Couple Working From Home Employees

Employment Law – Background

Putland v Royans Wagga Pty Limited is a clear example of sham contracting. In this case, the Federal Court of Australia decided that a husband and wife who performed largely home-based clerical work for one company were employees, not independent contractors.

Employment Law – Facts

In essence:

  • The couple were employed by a truck repair company, Royans Wagga Pty Ltd
  • The couple’s relationship with Royans began in 2005, when the wife worked in the business’ offices monitoring accidents
  • In 2008, the husband helped provide the 24 hour, 7 days a week ‘accident reporting service’ which was based either at their home or in a demountable shed on the business’ premises at various times
  • However in 2015, Royans outsourced the service to an independent call centre
  • Since 2007, any contract between the parties was described as “partly oral and partly in writing”. However, Royans argued that the couple had been independent contractors at all times

Employment Law – Decision:

The Federal Court of Australia:

  • determined that the couple were not independent contractors, and had an employment relationship with Royans
  • found that the couple were employed under the Clerks Award as ‘call centre principal customer contact specialists’ on a permanent, full-time basis and that Royans breached ss 45, s357 and 536 of the Fair Work Act
  • noted there were 10 “indices” supporting the view that the couple were employees. These included the exclusive nature of their service, Royans’ payment of phone lines and bills at their home, deferential emails to the company’s managing director, provision of scanners and telephone systems and the lack of true autonomy
  • suggested that the most significant indicator was the authority to control, as the managing director has extensive and far-reaching actual control over the work done and work was only done for Royans Wagga.
  • rejected indicators in favour of an independent contractor relationship, including the possession of ABNS, the issuing of tax invoices, the couple working from home and not wearing uniforms, on the basis that these features were “largely reflective of the [couple’s] subjective understanding of the position they were in according to the wishes of Royans”, rather than “supporting an objective assessment of the true nature of the relationship”
  • held that Royans must compensate the couple for underpayments, unpaid overtime, superannuation and leave. However amounts payable and penalties for sham contracting have not yet been determined.

The decision is available for you to read through the hyperlink:

Putland v Royans Wagga Pty Limited [2017] FCA 910 (9 August 2017)

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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Employment Law – Chauffeur Who Had Minimal Control a Worker

Employment Law – Background

The South Australian Employment Tribunal has found that a chauffeur, who provided “little more than his labour” and exercised minimal control to limousine company Blue Ribbon Passenger Services, was a worker not an independent contractor.

Employment Law – Decision

The South Australian Employment Tribunal:

  • determined that the arrangements between Blue Ribbon and its chauffeur was a contract of service, and as such the chauffeur was a worker for the purposes of workers’ compensation law
  • believed in this circumstance the chauffer was “providing little more than his labour” within “Blue Ribbon’s systems and practices of work”
  • concluded that the chauffeur operated within the “obedient milieu” put down by Blue Ribbon, as they told him which vehicle to drive and where to pick up/drop off customers, booked and allocated jobs through its systems or Uber and required him to complete worksheets daily to record his jobs. He also had no flat weekly fee or minimum hours and no set hours of work
  • held that other factors pointed to a contract of service, including: payment of 50% of his income to Blue Ribbon to lease the vehicle, the requirement that the chauffeur sign up to Uber and that payments from customers were transferred from Uber to Blue Ribbon and the requirement to wear a uniform and name badge
  • believed only a few factors suggested he was contractor including: his tax arrangements, payment for vehicle’s cleaning and 50% of petrol costs, holding an ABN and the employer’s failure to pay him leave or superannuation

The decision is available for you to read through the hyperlink:

Pirot Pty Ltd v Return to Work SA (Schultz) [2017] SAET 92 (11 August 2017)

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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Employment Law – Client Information Posted on Facebook Confidential

Employment Law – Background

The Supreme Court has rejected a mortgage broker’s argument that the client list he took from his old employer and provided to a competitor was no longer confidential because his old employer posted some of their clients names on Facebook.

Employment Law – Facts

In essence:

  • the mortgage broker worked for Home Loan Experts as an independent contractor, however terminated his agreement with them in November 2016
  • he was still bound by restraint clauses which prevented him from distributing Home Loan Experts confidential information for 10 years and a non-solicit provision which forbade him from engaging in similar business activities for 18 months
  • soon after he started working for competitor, RAMS Financial Group Pty Ltd
  • whilst he was allowed to provide services to family and friends, he was not allowed to lure former clients to RAMS or contact them within the 18-month restriction period
  • the broker downloaded a list containing over 100 of Home Loan Expert’s clients’ names and addresses from their system to his computer and provided it to a RAMS receptionist so she could send Christmas cards
  • however he claimed that client list was not confidential as his old employer had publically posted some of their clients’ names of their Facebook Page

Employment Law – Decision

The NSW Supreme Court:

  • rejected the broker’s argument that the list was not confidential because it was posted on Facebook, as nothing but the clients’ names appeared on the posts and the privacy settings of the client  prevented people from accessing information beyond their Facebook name or making contact
  • was satisfied that the client list “have not entered the public domain so as to be stripped of the necessary quality of confidence”
  • found that the broker had breached his non-compete and confidentiality obligations when he approached and accepted approaches from up to nine Home Loan Expert clients’ whilst working for RAMS
  • determined that the sharing of the client list also breached his agreement with Home Loan Experts as it constituted confidential information because it contained “more intimate” details about clients’ assets and liabilities, and thus remained the intellectual property of Home Loan Experts
  • also found that the broker had breached his equitable duty of confidence by using and retaining its client list and accepting clients’ approaches
  • ordered an injunction restraining the broker from continuing to breach his obligations
  • ordered parties to agree on damages and account for the loss of opportunity that resulted from 8 clients switching to RAMS

The decision is available for you to read through the hyperlink:

Dargan Financial Pty Ltd ATF the Dargan Financial Discretionary Trust (trading under “Home Loan Experts”) v Nassif Isaac [2017] NSWSC 1077 (16 August 2017) [...]  READ MORE →

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Fair Work Commission – Settlement Prevents Dismissal Claim

The Fair Work Commission has thrown out an unfair dismissal application because the employee had previously agreed to a settlement with his employer.

Facts

In essence:

  • In November 2016, Mr Singh was dismissed from his team leader role at Sydney Trains after an investigation into two safety incidents in August 2015
  • Singh was dismissed for failure to follow safety policies, procedures and guidelines whilst working in a safety critical location, causing significant risk of harm to himself, his team and the public
  • He applied for unfair dismissal under s 394 of the Fair Work Act
  • On 13 February, Singh’s solicitor wrote to Sydney Trains solicitor proposing terms of settlement, including that Singh be re-employed in an administrative role
  • Sydney Trains replied adding various qualifications regarding medical assessments and the requirement that a deed of release be signed
  • The deed of release was given to Singh and he agreed to settle the application in principle based on the terms in the draft deed.
  • Minor alternations were made and the Fair Work Commission was notified that they could vacate the hearing dates
  • However, by March Singh’s solicitor had failed to act and there was confusion over whether a binding settlement was made

The Arguments

  • Sydney Trains claimed that a binding settlement had been reached, so the unfair dismissal claim should be dismissed. The essential terms of settlement were agreed, regardless of the amendments and qualifications.
  • Singh claimed that there was no binding settlement because the qualifications made by Sydney Trains were a counter-offer replacing his original offer. He didn’t accept the counter-offer, so therefore there was no binding agreement.

Fair Work Commission Decision

The Fair Work Commission:

  • determined that Sydney Trains demonstrated the intention to be bound by the essential terms of the offer. Their rewritten offer was merely in a more detailed form, which had no difference in effect
  • decided this on the basis that “the parties would have hardly agreed to vacate the four days of hearing and the associated and not insubstantial costs involved, if there was not a plain and obvious intention that the matter had been settled in principle” and there was no communication by Singh’s solicitor that the offer was rejected
  • therefore held that the settlement was legally binding
  • determined that as the settlement was in effect, Singh’s unfair dismissal application had no reasonable chance of success and was dismissed under s587(1)(c) of the Fair Work Act

The decision is available for you to read through the hyperlink:
Subeg Singh v Sydney Trains (U2016/12864)

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
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • raise any questions with an employment lawyer

More Information

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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Employment Law – Contempt ruling for director who deleted documents

Employment Law – Background

A former director at an aged care service provider has been found guilty of contempt of court after he deleted information relevant to a confidential information claim being brought against him the night before he was due for court.

Employment Law – Facts                          

In essence:

  • The director of technology and innovation at Mirus Australia resigned on July 13 2015, before the company terminated him on August 7 2015
  • He did not deny that he removed information from the client management system and uploaded it into a laptop after he left
  • Mirus became aware that he and another former employee were going to start up their own aged care business
  • On August 24, 26 and 28 Mirus’ lawyers sent the director letters stating he was in breach of the restraint clause in his employment contract and required that the confidential information, intellectual property and devices be returned for examination
  • On September 7 2015, Mirus initiated legal proceedings against the director
  • It was alleged the director deleted relevant documents on September 7 2015 – the night before he was due to attend court

Employment Law – Decision                                          

The NSW Supreme Court:

  • held that the director had interfered with the administration of justice when he destroyed evidence by deleting documents on his laptop
  • stated “there is no room for doubt, on the expert evidence, that between 6.33pm and 7.19pm on 7 September 2015 the SDELETE function was run on the Surface Pro [laptop]”
  • believed the director intentionally deleted the documents relevant to the litigation to prevent them for being located
  • found the director in contempt of court and required he pay the company’s indemnity costs

The decision is available for you to read through the hyperlink:

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 (11 August 2017)

 Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this employment law decision
  • seek the assistance of an employment lawyer to understand the impacts of this employment law decision
  • ensure that employment contracts contain well drafted restraint provisions which are appropriate to an employee’s employment
  • damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)
  • raise any employment law questions with an employment lawyer

Employment Law – More Information [...]  READ MORE →

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Employment Law – Bullying Allegations Reasonable Management Action

Employment Law – Background

The Fair Work Commission has thrown out an anti-bullying claim brought by an aged care employee as her employer’s conduct was considered to be reasonable management action in response to her inappropriate conduct.

Employment Law – Facts

In essence:

  • the employee alleged she had been frequently bullied by her manager and supervisor since 2014
  • amongst various bullying allegations, she alleged that her manager screamed on many occasions, chased and ambushed her, spoken about her in highly derogatory terms and refused to grant leave when her daughter was having a medical procedure
  • the employee also claimed her supervisor also bullied through his handling of investigations and allegations made by and about her making her feel “scared”
  • both the supervisor and manager denied the allegations and claimed that the employee had frequently been aggressive to the manager including yelling personal insults and pointing her finger in the manager’s face, following her into her office and blocking the exit
  • the employee also challenged the procedural fairness of her employer’s quick decision in providing a “show cause” letter quickly after she had addressed issues raised in a counselling meeting
  • however, the employer argued that on each incident they had carried out reasonable management action by issuing formal warnings and counselling meetings before issuing the letter

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • dismissed the workers application
  • acknowledged that it “may have been preferable for the employer not to finalise its conclusions in its letter to [her] on 20 January before concluding its views concerning her grievances”
  • nevertheless, concluded that the on the evidence presented the conduct of both the manager and supervisor was “at all times reasonable management action carried out in a reasonable manner”
  • noted that the evidenced pointed to the employee’s own conduct being inappropriate on the occasions she alleged the bullying occurred

The decision is available for you to read through the hyperlink:

Application by E.K [2017] FWC 3907 (21 August 2017)

Employment Law – Tips for Employers [...]  READ MORE →

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NEW! Fair Work Amendment (Protecting Vulnerable Workers) Act

After recent high-profile cases involving alleged underpayments to employees and other criticised employment practices, the Federal Government has introduced new legislation.

NEW! Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

This new piece of legislation introduced key changes to workplace laws, namely:

Key Reforms – 15 September 2017

In summary, the new laws that commenced on this date:

  • increase penalties for serious contraventions of workplace laws
  • make it unlawful to ask for cashback from employees or prospective employees
  • increase penalties for failing to meet record-keeping and pay-slip requirements
  • place the onus on employers to disprove wage claims where:
  • the record-keeping and pay-slip requirements are not met; and
  • the employer does not have a reasonable excuse for not meeting this requirement
  • give greater powers to the Fair Work Ombudsman to gather evidence in investigations
  • introduce new penalties for giving the Fair Work Ombudsman false or misleading information or hindering or obstructing their investigations

Key Reforms – 27 October 2017

In summary, the new laws commencing on this date:

  • make certain franchisors and holding companies liable if:
    • their franchisees or subsidiaries do not meet workplace law requirements; and
    • they knew or should have known and could have prevented it

    The Sting

    An employer that fails in their due diligence, namely:

    • investigating which Modern Awards/enterprise agreements apply at their workplace
    • ensuring minimum rates of pay, loadings, allowances and other payments are paid and on time
    • ensuring pay-slips are issued on time and in conformity with workplace law requirements
    • ensuring employee records are fully and accurately maintained

    faces an increased risk of:

    • investigation and prosecution
    • loss of goodwill/reputation
    • turnover of staff
    • loss of morale amongst remaining staff

    Personal Liability – Directors, Managers and Others

    It is also timely to remember that those involved in any contravention such as directors and managers (including payroll and HR staff) can also be held personally liable and prosecuted. [...]  READ MORE →

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Fair Work Commission: Support Person in Disciplinary Meetings

Employment Law – Background

The Fair Work Commission has ruled that a HR manager should not have allowed a company a manager to be put forward as a ‘support person’ for an employee who was under threat of dismissal.

Employment Law – Facts

In essence:

  • the employee, a retail supervisor at RACV’s Cape Schanck Resort, sought to have the company’s manager present as her ‘support person’ at a disciplinary meeting
  • however, the company opposed this as the selected ‘support person’ worked directly with the employee

Employment Law – Fair Work Commission Decision:

The Fair Work Commission:

  • determined that the resort manager “should not have allowed his name to be put forward as a potential support person” and HR also shouldn’t have allowed it to occur
  • held that the resort manager could “by no means be regarded as someone who would give [the retail supervisor] ‘support’ in any of the capacities implied by that word; whether as an advisor, counsellor or representative”
  • suggested the selection was inappropriate as the resort manager was in “attendance at the [disciplinary] meeting on Friday, 24 March 2017 as the management representative” and “he was the one who signed the letter of dismissal” to the retail supervisor
  • nevertheless held that the company had not unreasonably refused to allow the retail supervisor to have a support person present at the meeting
  • upheld the employee’s dismissal

The decision is available for you to read through the hyperlink:

Leanne Trembath v RACV Cape Schanck Resort [2017] FWC 4727 (13 September 2017)

Employment 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
  • seek advice from an employment lawyer on who may be an appropriate support person if in doubt
  • train HR managers/staff about this Fair Work Commission decision
  • raise any employment law questions with an employment lawyer

Employment Law – More Information

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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Huge Payout for Employment Contract Repudiation

Employment Law – Background

A senior accountant whose employment contract was repudiated by accountancy firm Crowe Horwath has been awarded almost $425,000 in damages by a Victorian court.

Employment Law – Decision:

Justice McDonald of the Victorian Supreme Court:

  • held that that the senior accountant was entitled to 12 months pay and superannuation ($281,667) and a $142,778 bonus for 2015/2016 that he would have received if the firm had not repudiated his employment contract in July 2016
  • rejected the firm’s argument that the accountant’s employment contract would have ended when the firm implemented a restructure which was opposed by the employee in August 2016, and would have prompted a six-month termination payment
  • costs and interests have not yet been decided

The decision is available for you to read through the hyperlink:

Crowe Horwath (Aust) Pty Ltd v Loone (No 3) [2017] VSC 548 (15 September 2017)

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this employment contract case decision
  • seek the assistance of an employment lawyer to understand the impacts of this decision
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • understand what employment laws apply at your workplace including Awards and enterprise agreements
  • review your employment contracts and employment law policies at least once every 12 months to ensure they remain current with workplace practices and all employment laws
  • damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)
  • penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)
  • raise any employment law questions with an employment lawyer

Employment Law – More Information

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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Employment Law – Payroll Manager Jailed for Fraud

Employment Law – Background:

A payroll manager has been jailed for three-years after defrauding her employer of more than $737,000.

Employment Law – Facts:

  • Sally Ann Woodall was employed as the payroll manager of international architecture business Hassell Services Pty Ltd between April 2006 and December 2009, and from August 2010 to April 2016
  • Woodall made payroll payments to ex-employees of Hassell utilising bank accounts in her name
  • During her first period of employment, Woodall entered 72 transactions to obtain $126,879
  • In her second period of employment, Woodall obtained approximately $610,554 over 169 transactions
  • Woodall pleaded guilty to charges of obtaining a financial advantage by deception under s82 of the Crimes Act 1958 (charges 1 and 2), and attempting to obtain a financial advantage by deception for failed transactions under s321M of the Crimes Act 1958 (charge 3)

Employment Law – Decision:

Judge Dean in the Melbourne County Court:

  • sentenced Woodall to a total of three years imprisonment for the 3 charges, to be served concurrently.
  • stated that Woodall’s offending was serious in that “took place over a lengthy period” and involved “sustained dishonestly”, and the fact that she “occupied an important position of trust” and exploited this position to defraud.
  • however in sentencing, the seriousness of Woodall’s offending was balanced against her personal circumstances including domestic violence, drug addiction and abuse. Her expression of remorse and guilty plea was also taken into account.

The decision is available for you to read through the hyperlink:

DPP v Woodall [2017] VCC 1143 (18 August 2017)

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this case decision
  • seek the assistance of an employment lawyer to understand how to address situations of employee misconduct
  • ensure cake is taken when recruiting employees to mitigate against potential risks. This could include conducting mandatory police checks on potential employees.

Employment Law – More Information
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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Employment Law – Adverse Action against Train Driver

Employment Law – Background

The Federal Circuit Court has determined that Australian Western Railroad took adverse action against a train driver when they cancelled his supervisor training after he refused to work a shift as a result of carer’s responsibilities and fatigue.

Employment Law – Facts

In essence:

  • the driver refused to work a “put-back shift” when a 3pm train he was rostered to drive was delayed by more than 3 hours
  • the driver claimed that he would be unable to work his shift because he would be fatigued, which was the result of his carer’s responsibilities. He argued that his absence should be recorded as carers leave
  • he argued that he had been primary caregiver of his children since 2011 due to compilations in his wife’s pregnancy which left her unable to care for the children
  • the driver claimed that he would be incapable of resting and his children would need to be cared for and would be making noise preventing him from resting
  • Six days after he took carer’s leave, the company cancelled the driver’s operations supervisor training

Employment Law Decision

The Federal Circuit Court:

  • concluded that the company breached s340(1)(a)(i) and (i) prohibitions on taking adverse action because of the exercise of a workplace right under/for discriminatory reasons under s351(1) of the Fair Work Act by cancelling training
  • in addition, held that cancelling the training also constituted an alteration of the driver’s position to his prejudice under s342(1) item 1(c)
  • consequently, believed that the delivery manager’s decision to stop supervisor training and not to reinstate it “was informed by the view” that the driver had a “lack of commitment and poor attitude”, and it was this against the background of the driver exercising his workplace right to carer’s leave which formed the basis of the adverse action and discrimination.
  • held that the delivery manager was wrong in labeling the drivers claims he was exercising his workplace right to carer’s leave as disingenuous

The decision is available for you to read through the hyperlink:

Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954 (18 August 2017)

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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Fair Work Commission – Reconsideration of Fixed Term Contract Authority

Fair Work Commission – Background and Facts

The full bench of the Fair Work Commission has taken the rare and serious step of allowing for a reconsideration of a full bench authority on fixed-term contracts. The Fair Work Commission granted the Navitas English Pty Ltd employee leave to appeal a ruling on whether employees on fixed term or “outer-limited” contracts are dismissed when their terms expire.

Fair Work Commission Decision:

The Fair Work Commission:

  • concluded that it was in the public interest to grant the employee’s appeal and reconsider the well-established 2006 decision of Department of Justice v Lunn
  • suggested this was a matter of public interest because Lunn considers old unfair dismissal provisions under the Workplace Relations Act 1996 (Cth), and thus the applicability of the reasoning in Lunn as it applies to the Fair Work Act has not been previously analysed by the Full Bench
  • stated that in their view “the first ground of appeal raises issues of importance and general application in relation to the question of the approach that should be adopted by the Commission in determining whether there has been a termination of employment at the initiative of the employer, particularly in relation to employees who have been employed on a series of fixed term or outer limit contract”

The decision is available for you to read at the following hyperlink:

Mr Saeid Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 4092 (16 August 2017) [...]  READ MORE →