ByLawyers News and Updates

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

101 Employment Answers – commentary added

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By Lawyers Reference Manual – 101 Employment Answers has been enhanced with the addition of commentary regarding Unfair dismissal – period of continuous employment and Casual Employment.

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee: see s 384(1).

Under s 384(2), a ‘period of service’ as a casual employee does not count towards the employee’s period of employment unless:

  • the casual employee was employed on a regular and systematic basis; and
  • the casual employee had a reasonable expectation of continuing employment on a regular and systematic basis.

The Full Bench decision of the Fair Work Commission in Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 (particularly paragraphs 10 to 13) provides guidance as to the approach to take for calculating a ‘period of service’ as a casual employee.

EMPLOYMENT – Tuition reimbursement on termination

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Employers typically deduct from termination monies when an employee terminates after receiving recent employer-funded tuition. Deductions from monies owed is regulated by the Fair Work Act and employers should tread carefully.

Under the Act, employers are required to pay their employees all amounts owing to them in relation to the performance of their work in full. This includes wages, bonuses, loadings, allowances, overtime and leave payments. …

The Act allows for some deductions to be made by employers, but only in four limited circumstances, one being where the deduction is authorised by the employee in writing, and it is principally for the employee’s benefit …

In some cases, deductions for employer paid training courses can be lawful authorised deductions. It will depend on the circumstances of the case but as a general statement, deductions for training course fees are more likely to be considered lawful if the severance of the employee concerned occurs within a short time following the payment of the fee, for example, 6 months or 12 months. Each situation will turn on its facts.

The Standard Individual Employment Agreement and the Executive Employment Agreement precedents have been updated with a clause relating to Refund of tuition expenses by the employee.

 

 

EMPLOYMENT – Reference manual – 101 Employment Answers – Additions

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The By Lawyers Reference Manual – 101 Employment Answers has been updated.

New entries:

Notice and employment ended by abandonment

The question of when an employee can be said to have “abandoned” their employment can be a complex one. The recent Full Bench decision of the Fair Work Commission in Abandonment of Employment [2018] FWCFB 139 [21]–[22], provides excellent guidance.

Unfair dismissal – high income threshold

The high income threshold limits an employee’s eligibility for protection from unfair dismissal … currently $142,000. If an employee is not covered by a modern award, or an enterprise agreement does not apply to them, in order to be able to access the unfair dismissal jurisdiction, the employee must have an annual rate of earnings of less than the high income threshold.

Termination of an employee on a 186 visa

There is no condition on a 186 visa requiring either the employee or employer to maintain employment for the 2 year post visa approval employment period.

Employment Law – 101 Employment Answers – New reference manual

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We are excited to announce that we have significantly enhanced our Employment Law publication by the addition of a new reference manual – 101 Employment Answers.

Sourced from our Mentor service 101 Employment Answers is an extremely useful collection of questions and answers on all aspects of employment law, from various states, on various topics, dealing with the status, rights and obligations of employers, employees and contractors.

101 Employment Answers can be accessed directly from the Employment Law guide within LEAP or from the Employment Law page on the By Lawyers website.

Update: Sharp increase to Fair Work Act penalty amounts from 1 July 2017

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By Brad Petley

Principal of Acumen Lawyers and the By Lawyers employment law specialist

The June and July period has heralded a number of important changes to workplace laws. Included in those changes is a 1 July increase to the value of a Commonwealth penalty unit. The flow on effect is that maximum fines for breaches of the Fair Work Act have risen sharply. In this update, we explain why understanding the consequence of this change is so important for employers.

What is the increase?

From 1 July 2017, penalty units under federal laws, including the Fair Work Act 2009 (Cth) increased from $180 to $210.

What is a penalty unit?

For federal legislation, the value of a penalty unit is determined by the Crimes Act 1914 (Cth).

Civil (monetary) penalties under federal legislation are calculated using ‘penalty units’ rather than expressing the penalty as a dollar amount.

How does it relate to workplace law?

Most of the Fair Work Act provisions which impose obligations (e.g. on employers) are also designated as civil remedy provisions.

Civil (monetary) penalties in the Fair Work Act are expressed as multiples of a penalty unit (not a dollar value).

For example, civil penalties attach to the following:

  • Breaching the National Employment Standards;
  • Breaching a modern award;
  • Breaching an enterprise agreement;
  • Engaging in prohibited adverse action (general protections);
  • Breaching right of entry requirements;
  • Breaching a stop bullying order;
  • Breaching orders relating to unlawful industrial action.

A court may make a pecuniary (monetary) penalty order against a person (including a corporation) if that person has breached a civil remedy provision.

Why should employers be concerned about the increase?

Put simply, fines are bad for business, especially big ones.

From 1 July, the maximum penalty (for a single breach) is $63,000 for a corporation (increased from $54,000), and $12,600 for an individual (increased from $10,800).

A civil penalty order could have a crippling effect on an organisation, particularly if there are multiple breaches of the Fair Work Act.

The reality of many workplaces is that policies and processes (if not reviewed) can become out of date.

Some managers may become blasé about their obligations. New managers may escape the induction process.

Out of date or substandard workplace policies can lead managers into error.

Even where policies are up-to-date, there needs to be a continuous program of ensuring that managers are aware of their responsibilities.

What should employers do?

Employers should do two things immediately:

  1. Review their policies and procedures to ensure they are compliant with the Fair Work Act.
  2. Organise refresher training for managers about workplace policies and procedures to reduce the risk of inadvertent breaches of the Fair Work Act.

A process of regular ‘review and refresh’ is an effective risk minimisation strategy.

Out-of-hours employee misconduct and social media misuse

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Author Brad Petley, Principal of Acumen Lawyers, and the By Lawyers employment law specialist.

Social media use by employees has brought many headaches for employers.

Plenty of sobering warnings have been written by the experts.

A social media issue affecting your workplace can happen in an instant – as today’s hypothetical shows.

An employee heckles a golfing superstar then takes to social media

This article is actually based on an incident reported earlier this year when a golf spectator at the Valspar Championship in Florida heckled well known PGA Tour professional Ian Poulter: See Ian Poulter Heckler from Valspar Fired from Job at Florida Southern – Golf.com (17 March 2016).

After the heckling, the spectator took to twitter, boasting:

“…Ian Poulter is making the walk from 12 to 13. I yell ‘you will NOT make the Ryder Cup team!’ Followed by a ‘YOU WILL HIT IT IN THE WATER!’ Ian turns to a rules official and asks that my friend and I be removed from the premises. We talk to the cops, rules official and they ask us to wait until Ian moves on to the next hole and we could return to the Hooters tent. Ian hit his tee shot on the the (sic) par 3 into the water, thins (sic) we got kicked out, and we’re still boozing! I’m swimming circles in Ian Poutler’s (sic) brain and might (probably) kept him off the Ryder Cup Team..LETS GO!”

Unfortunately for the spectator, he got more than he bargained for when his tweet came to the attention of Poulter.

Poulter tweeted back and at the same time tagging the twitter accounts of the spectator’s employer:

“I’m sure @FSC_Athletics & @FscSports are really proud of your professionalism. I wish you the very best Ian”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Events then took an unfortunate turn for the heckling tweeter as within days his employer (in response to media enquiries) issued this blunt statement:

“He’s no longer employed at the institution.”

So, let’s apply the circumstances of the heckling spectator story as a hypothetical under Australian workplace laws – could you take disciplinary action?

What if it happened in Australia?

The starting point is to bear in mind that the hypothetical employee’s conduct occurred outside of working hours so it may be genuine private activity (no matter how distasteful) with no connection to the employment.

In certain circumstances an employee’s out of work activities (including social media activity) may breach an implied or explicit term of their employment contract thus permitting disciplinary action.

As to the out-of-hours conduct that would justify dismissal, the courts have said:

  • An employee may be validly dismissed because of out of hours conduct – BUT that conduct must be such that:
  • it is likely to cause serious damage to the employment relationship; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.
  • In the absence of such considerations an employer has no right to control or regulate an employee’s out of hours conduct.

See Rose v Telstra Corporation Limited Print Q9292 [1998] AIRC 1592 (4 December 1998)

Could disciplinary action be taken against our hypothetical employee?

It is fair to say that the employee’s conduct raises serious issues about his continuing employment.

However, today’s hypothetical cannot cover all of the issues and arguments that could be put forward in an unfair dismissal case.

Cases will always turn on their individual facts.

What are some of the key facts and issues?

Remember – in our hypothetical the adverse publicity risk is high and the employee is identified on social media as an employee of your organisation.

The out-of-hours behaviour is given wide public exposure by the heckled golfer (who has more than 2 million followers) in his twitter retort and making your organisation’s identity clear by tagging its twitter account name.

There’s the issue of the impact on your organisation’s interests by the employee’s conduct.

You would need to consider the following factors:

    • What is the potential impact of adverse publicity?
    • Could the employee’s actions harm relationships between your organisation and its clients, suppliers or sponsors?
    • Could commercial arrangements with those parties be cancelled as a result?
    • Could there be an impact on the organisation’s ability to source new customers, clients or sponsors?

By engaging publicly in disruptive, hooligan-like behaviour at an international sporting event, our hypothetical employee would certainly raise questions as to whether his actions had damaged the relationship of trust and confidence.

The courts have recognised when it comes to the relationship of employer/ employee:

  1. trust and confidence is a necessary ingredient and
  2. there must be sufficient trust to make the employment relationship viable and productive: See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. A common question explored by our industrial relations tribunals in unfair dismissal cases about misconduct is about whether the relationship trust and confidence was irreparably damaged by the employee’s actions.

Relevant to trust concerns would be the employee’s boastful statements on social media about his antisocial behaviour.

The impact would become more grave if the employee held a senior position of greater trust such as a management or supervisory role.

Takeaway points

    • In certain circumstances an employee’s out-of-work conduct can justify disciplinary action (including dismissal).
    • The courts have issued guidance principles for when such behaviour would justify dismissal.
    • Even if there is a valid reason to dismiss, don’t forget the impact of unfair dismissal laws; fairness principles may impact to make a dismissal harsh, unjust or unreasonable.
    • A social media policy is recommended for all workplaces to aid the prevention of misconduct involving social media.
    • If in doubt as to your rights to discipline an employee, seek advice before acting

Beware the trap of the disgruntled employee – Part 2

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By Brad Petley

Principal of Acumen Lawyers, and the By Lawyers employment law specialist.

A takeover of an established business can be fraught with anxiety for a new employer and the remaining employees.

The previous trusted employer-employee relationship is gone.

New relationships take time to build.

Changes to pre-existing arrangements may not go over well with the remaining employees.

A disgruntled employee who takes to Facebook requires a careful response – as today’s article shows.

Case 2 – How not to handle a disgruntled worker

Vosper v Solibrooke Pty Ltd [2016] FWC 1168 (1 March 2016)

The employee in question, Ms Vosper, was employed by a cake making business from 24 October 2012 in a permanent part-time capacity.

Ms Vosper’s employment spanned the sale of the business on 3 July 2015 until it ended with her dismissal in September 2015.

The Beginnings of a Workplace Dispute

Late on 21 September 2015, at the completion of her workday, Ms Vosper was issued with one week’s notice of termination from her part-time employment.

Ms Vosper was told that her part-time role was “not in line with the business staffing needs”.

In the same meeting (21 September), Ms Vosper was offered new employment but as a casual and on a lower base pay rate (excluding casual loading).

Ms Vosper advised the employer that she did not wish to accept the offer of casual employment.

Facebook message 1– a storm brews

On the morning of the next day (22 September) Ms Vosper sent a Facebook message to her sister (Ms King) – the prior owner of the business.

Ms Vosper advised of termination of her permanent employment and the corresponding offer of a casual position.

During the ensuing Facebook communication exchange, the former owner, Ms King, expressed her displeasure at what had occurred.

Facebook message 2– a not so happy goodbye

On the same day (22 September) Ms Vosper published a private Facebook message as follows:

“I just wanted to let you know that I am finishing up at Angie’s at the end of the week. Time to move on with a new focus. Thanks for all the hard work you have given Karen and I.”

In reply to a “what happened” response Ms Vosper said:

“Angie and Lloyd did my 3 months review and explained that they no longer want to have the part time position and gave me a weeks notice. They offer me casual however I have decided to move on.”

Facebook message 3 – the former owner weighs in

On the same day (22 September) Ms King (the former owner), sent the following message to another employee of the business:

“Hey do you mind if I ask if everything is ok at work!?? Robyn isn’t being treated very well at all. And I was just hoping you were doing ok!”

Dismissal

The employer did not take kindly to the release of information.

Late that night (22 September), the employer sent a dismissal letter by email to Ms Vosper.

The letter advised Ms Vosper that she was dismissed without notice as of 21 September 2015.

In part, the letter stated:

“… you have left us with no alternative but to terminate your employment with immediate effective due to you breaching our request for Confidentiality less than 24 hours after specifically discussing this with you during your review yesterday evening. …”

“… we made it clear that any discussion with anyone about anything to do with the business that could be seen as derogatory, in particular your sister with whom we were experiencing difficulties at present with but we were doing everything we can to not involve with you.”

Unfair dismissal claim

The dismissed employee challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission (FWC).

The verdict

The FWC ultimately found the dismissal to have been unjust and unreasonable and thus – unfair.

During the hearing of the matter, the employer put forward a number of arguments to justify the dismissal including:

  • alleging redundancy of the employee’s position
  • performance concerns
  • misconduct arising out of an alleged breach of confidential information
No Redundancy

The FWC rejected the employer’s assertion that Ms Vosper was made redundant.

The FWC found that restructuring changes were not so substantial as to render Ms Vosper’s position no longer being required to be performed by anyone.

No unsatisfactory performance

The employer raised performance concerns during the hearing including alleged lateness, and inadequacy of cake making and decorating skills.

In finding that there was no basis for finding the dismissal was due to performance, the FWC recognised that:

  • the alleged lateness incident was not raised with the employee
  • no warning had been issued about poor performance
  • the employee was not provided with any opportunity to improve in response to cake making concerns
  • the employer’s offer of further training only occurred at the time of the dismissal
What about the Facebook communications?

The FWC summarised the employee’s communications to others (via her Facebook page) as follows:

  • Ms Vosper had been dismissed from her employment because the new owners had told her that they no longer want to have the part-time position and she was being forced to casual employment.
  • She had rejected casual employment and had decided to move on.
  • She had been given her one week’s notice.

The FWC was scathing of the employer’s arguments that the Facebook communications were derogatory and breached confidentiality.

“There is nothing derogatory in these statements. There is no confidential business information in these statements. No reasonable person could believe that this information was either derogatory or confidential business information. An employee has a right to complain about their employment rights and their treatment at work. We do not live in a society where employees are prohibited from discussing their employment status or their treatment at work with others.” [underlining added]

The FWC commented disapprovingly that the employer did not discuss its concerns with the employee about perceived derogatory remarks or an inappropriate release of confidential business information.

The FWC considered that there did not appear to have been any reasonable basis for the employer’s concern of a breach of confidentiality.

Even if there were a reasonable basis for concern, the FWC commented that it was doubtful that the concerning conduct would have amounted to serious misconduct.

Lessons for employers

  • An employee’s airing of workplace dirty laundry may not necessarily involve a release of confidential information
  • An employee is entitled to complain about their employment rights and workplace treatment
  • Employers should have a clear process for the raising of a workplace grievance and the resolution of complaints
  • An employee is entitled to be disgruntled – providing it does not manifest in misconduct or unsatisfactory performance
  • Think before acting

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