ByLawyers News and Updates

Paid parental leave – Fed

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Employment law – Paid parental leave amendments

The Paid Parental Leave Amendment (Work Test) Act 2019 has made the following changes to the ‘work test’ under the Paid Parental Leave Act 2010:

  1. The insertion of s 33(2A) which provides for the work test period for a pregnant woman in an unsafe job. The period begins 13 months immediately before the woman had to cease work if the cessation was due to the hazards connected with her work posing a risk to the pregnancy; and
  2. The permissible break in the work test period provided for in s 36 has increased from 8 weeks to 12 weeks between two working days.

These amendments commence form 1 January 2020.

The By Lawyers Employment Law commentary has been updated accordingly.

By Lawyers wish everyone a happy and safe festive season.

Employment Law – Domestic violence leave

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From 1 August 2018 all employees under modern awards – full-time, part-time and casual – have an entitlement to 5 days unpaid leave to deal with family or domestic violence issues.

The Fair Work Commission decided in their four-yearly review to add a new model term into all modern awards. The Full Bench concluded that:

…retaining employment is an important pathway out of violent relationships. Conversely, a lack of financial security has an adverse impact on the ability to recover from family and domestic violence. Absent an entitlement to unpaid family and domestic violence leave, employees will be reliant on the goodwill of their employer to obtain the leave necessary to deal with the various issues arising from family and domestic violence while remaining in employment.

The model clause will allow unpaid leave for family or domestic violence reasons which are defined as… violent, threatening or other abusive behaviour by a family member that seeks to coerce or control the employee and that causes them harm or to be fearful.

The unpaid leave may be taken for such reasons as to make safety arrangements for the employee or a family member, to attend court, or to access police services.

Employees are not required to access paid holiday or sick leave first before taking the unpaid domestic violence leave.

The leave is available in full at the start of each 12-month period of the employee’s employment, does not accrue and is available to full-time, part-time and casual employees.

Our Employment Law guide has been updated.

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

Beware the trap of the disgruntled employee – Part 1

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By Brad Petley

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

It’s a familiar situation – an employee who pushes their manager’s buttons.

Challenging and questioning rather than simply getting on with things – ‘like the others do’. Disgruntled employees with unresolved workplace issues can be difficult to manage. Some employers adopt a ‘put up with it or there’s the door’ position. Yet, managing a disgruntled employee is not as easy as that.

Traps abound for the unwary – as today’s article, in Part 1 of our series, shows.

Case 1 – How not to handle a workplace dispute

Luckman v HP Bowral Pty Ltd T/A Highlands Property [2016] FWC 1250 (3 March 2016)

Ms Luckman worked in a permanent part time capacity for a property management company.

Her role involved managing a portfolio of properties, including sales and leasing.

Two disputes arose during Ms Luckman’s employment.

First Dispute

The first dispute arose when Ms Luckman considered that she had a full-time workload although she was working in a part-time capacity, based on the amount of properties she was expected to manage.

The dispute was resolved after Ms Luckman raised issue with her manager.

Second Dispute

The second dispute arose over a management decision that Ms Luckman would be managing two new properties in addition to her normal duties.

Ms Luckman was advised of the decision on 13 August 2015.

Ms Luckman objected to management’s decision on the basis that although she would be burdened with the responsibility for managing the properties, she would be effectively denied the associated sales commissions because each sale would occur during hours when she was not at work.

Later that day, Ms Luckman was invited to a meeting with the employer’s General Manager, Mr Walker.

Meeting – 13 August 2015

During the meeting Mr Walker explained the reasons for the decision and advised that he did not consider the transfer of work to her as unusual or uncommon.

Ms Luckman disagreed with Mr Walker’s explanation and at the conclusion of the meeting made comments along the lines of “I’m done, I’m over it, I’m out of here.”

Email exchange

After returning to her desk, Ms Luckman sent Mr Walker an email which included the following:

“Further to our meeting today as I feel there is nothing more to discuss it would be appreciated if the files could now be handed over so I can continue the management of those properties.”

Mr Walker responded by email which included the following:

“You may feel there is nothing more to discuss, but there is. It’s nothing to lose sleep over but I will make time for us to meet again.”

Dismissal

On 20 August 2015 Ms Luckman was invited to a further meeting with Mr Walker.

At the start of the meeting Mr Walker read out a letter terminating Ms Luckman’s employment.

The letter advised ‘misconduct’ as the reason for Ms Luckman’s dismissal.

Unfair dismissal claim

Ms Luckman challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission.

The verdict

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

Conduct not inappropriate

The FWC considered that the conduct of Ms Luckman in the meeting did not amount to a valid reason for her dismissal.

Although observing that Ms Luckman had been angry and hostile during the meeting of 13 August, the FWC recognised that there had been no use of inappropriate or foul language, or threatening or abusive behaviour, by either party.

The FWC also recognised that Ms Luckman’s email to Mr Walker immediately after their meeting demonstrated that she was ready to follow the instruction about the management of the two properties in question.

In particular the FWC commented:

‘The meeting on 13 August 2015 was a robust discussion where an employee had the courage to voice her disapproval over the way that she perceived that she had been victimised over the last four years.

The mere fact that there was no swearing or threatening language used solidifies the view that Mr Walker’s decision to terminate Ms Luckman’s employment was a monumental over reaction.’

Robust workplace discussions

Importantly for employers, the FWC made the following observation about robust discussions between employers and employees:

‘Robust discussions between employees and employers are a part of the Australian industrial landscape.

The notion of master/servant where an employee was not allowed to question the decision of the employer disappeared with the industrial revolution.’

Ultimately, the FWC handed down a decision of unfair dismissal.

As to the question of whether Ms Luckman could be reinstated, the FWC rejected a claim by the employer that there had been a breakdown of trust in the employment relationship.

Lessons for employers

  • Robust workplace discussions between an employer and employee are an accepted feature of the Australian employment landscape.
  • An employee may raise a workplace issue directly affecting him/her providing it is raised in an appropriate way.
  • Employers are not entitled to deem the mere raising of workplace issue as misconduct or insubordinate behavior.

Employment Law

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Employment Law

JANUARY
  • Commentary added on “Cashing out annual leave”
NOVEMBER 
  • Further Information – Added new links
  • Costs Agreements – Reference to interstate costs laws added and updated interest clause
OCTOBER
  • Costs Agreements
    • SA and WA – Added client and firm fields company execution clause trust account details solicitor’s lien.
    • WA – Added clause on scale fees.
    • NSW/VIC – Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
  • New article – Out-of-hours employee misconduct and social media misuse
SEPTEMBER 
  • New article added – Beware the trap of the disgruntled employee – Part 2
AUGUST 
  • Costs agreements have been added for Tasmania, ACT and Northern Territory.
JUNE 
  • Commentary updated in line with Fair Work Commission’s high income threshold for 2016. The threshold is relevant for the purposes of protection from unfair dismissal, compensation available from an unfair dismissal claim and the applicability of modern awards to certain employees.
APRIL 
  • New article published – Beware of the trap of the disgruntled employee – Part 1
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
  • New commentary on casual employees included.
FEBRUARY
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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