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Author: PWLadmin

  • Valid Reason for Dismissal but no Procedural Fairness Afforded

    FWA Decision

    The risks for employers in stringing out dismissal processes involving matters of serious misconduct have been demonstrated in Jones v Commissioner for Public Employment [2012] FWA 7069 (17 August 2012) where a Northern Territory Parole Officer failed to disclose during her recruitment that her husband was a parolee.

    Commissioner Steel said there was a ‘valid reason’ for her termination, but found the Officer was unfairly dismissed after not being afforded the necessary procedural fairness.

    The former Probation and Parole Officer was employed by Northern Territory Correctional Services on a 12 month contract from June 14, 2011.  It was anticipated that her employment would continue subject to completing a training course and satisfactory work performance.  However, several months later the Department became aware of her husband’s criminal record and parole status and began an exchange of letters which culminated in her termination in January this year.

    Fair Work Australia Commissioner David Steel found the Officer was ‘unfairly’ dismissed because her employer did not carry out a proper investigation into the matter and required her to maintain her duties while the issue was resolved.

    Background

    In the initial letter of 19 October 2011, the Officer was told her failure to disclose her husband’s criminal history raised concerns about trust and confidence, and that her employment may be terminated. In her response, the Officer maintained the paperwork had contained questions relating to her own circumstances, but not her spouse or family members. The paperwork included a document titled “Criminal History and Integrity Screening” which asked whether she had associated with persons that she knew “had criminal convictions other than in the course of carrying out professional duties?”

    The Officer said she had taken advice on the meaning of “associates” in relation to the question, but was “encouraged by others assisting her to gain employment” that she should interpret the term as normally applying in a business relationship context.

    She said she had been “open and transparent” in the interview process and had provided referees with knowledge of her husband’s status.

    In a second letter, dated 2 November 2011, the Department advised the Officer that it was not satisfied that she had been “open and transparent” and that she had avoided disclosure in completing the form.

    In the written communications, the Officer notified the Department of the increasing toll the accusations were taking on her health and wellbeing and that her confidentiality had been breached by the information about her husband becoming known among her colleagues.

    She received a fourth letter dated, 13 January 2011, saying that her employment was terminated with one (1) weeks’ pay in lieu of notice because of her failure to disclose the information about her husband and her failure to have responded openly and transparently in the subsequent communications.

    Commissioner Steel said there was a ‘valid reason’ for her termination, but found she was unfairly dismissed after not being afforded the necessary procedural fairness.  He said the Department had not carried out an investigation, met with the Officer or held any hearings or discussions with her.  This had meant there was also no opportunity for “representation or support persons that may have assisted the parties”.

    He described the conduct as “disciplinary process by correspondence“.  The Commissioner also took into account that the Officer had not been suspended during this period, rather had been required to continue to fulfil her role “in face of information from the applicant that her work situation was deteriorating and she considered the respondent was not meeting amongst other matters, their duty of care towards her“.

    The Commissioner ruled out reinstatement and awarded her 12 weeks pay.

  • Adverse Action Claim Costs Ruling

    A recent decision chal­lenging the commonly held view that adverse action claims are effectively ‘no costs’ matters under the Fair Work Act 2009 may have significant effect on future claims.

    In Cugura v Frankston City Council (No.2) FMCA 530, Federal Magis­trate O’Sullivan awarded costs to an employer (the Frankston City Council) from an employee who unsuccessfully pursued an adverse action claim.  This costs ruling signifies a departure from the general judicial reluctance to award costs in such matters.

  • Service that Counts for Long Service Leave Purposes

    Long Service Leave

    Generally, all absences count towards the accrual of long service leave in NSW.

    However, certain interruptions are not to be taken into account when calculating the period of long service.

    These are:

    • Parental leave, i.e. maternity leave, paternity leave, adoption leave
    • Absence by agreement of the employer, i.e. leave without pay
    • The period during which the employee was not employed, where the employee is terminated by the employer and re-employed within 2 months
    • The period during which the employee was not employed, where the employee was terminated by the employer due to slackness of trade, and subsequently re-employed at a later date
    • Any absence arising directly or indirectly from an industrial dispute.

    The Long Service Leave Act 1955 (NSW) applies to all award/agreement covered employees and also award/agreement-free employees in NSW, i.e. weekly, part-time and casual employees.

    The Act does not apply to employees covered by a Federal long service leave award; a Federal agreement dealing with (or excluding) long service leave; employees entitled under any award/agreement to long service leave more favourable than the Act; employees entitled to long service leave under any other Act such as employees covered by the Building & Construction Industry Long Service Payments Act, who elect to receive benefits available under that Act instead of the Long Service Leave Act 1955 (NSW), and the Long Service Leave (Metalliferous Mining Industry) Act.

    From 1 January 2010 this situation was preserved by the National Employment Standards, however there are special rules where agreements exclude long service leave or apply a single standard across more than one state and/or territory.

  • What does “domestic or other pressing necessity” mean for long service leave purposes?

    According to the NSW Long Service Leave Act (s 4(2)(a)(iii)), a worker who has completed at least five years of service with an employer and whose services are terminated by the worker on account of illness, incapacity or “domestic or other pressing necessity” may be entitled to pro-rata long service leave entitlement on termination.

    But what could amount to such a necessity?

    A decision of the Chief Industrial Magistrate’s Court is instructive on this point.

    The Case:

    A company was charged by the Department of Industrial Relations with a breach of the relevant section of the Long Service Leave Act for failing to pay pro-rata long service leave entitlements.  An employee had resigned after the employer failed to transfer him from night shift to “usual day time hours”. The employee requested the transfer because the “nightshift created domestic problems” for him and his family.

    In his decision, the Chief Industrial Magistrate relied on a number of cases to support his view that the employee was entitled to a pro-rata entitlement due to “domestic or pressing necessity”.

    What is the Legal Test?

    The test the Courts will apply in attempting to assess the validity of “domestic or other pressing necessity” claims will involve the following questions:

    • Is the reason claimed for termination of employment one which falls within section 4(2)(a) of the Act?
    • Is the reason “genuinely held” by the worker and not simply a rationalisation?
    • Although the reason claimed may not be the only ground which led the worker into deciding to resign, is it the “real or motivating” reason?
    • Is the reason such that a reasonable person in similar circumstances to the worker might feel compelled to terminate their employment?

    Guide for Employers:

    As a general guide for employers, examples of cases where it has been held by the Court that a worker has terminated their services because of a “domestic or pressing necessity” include (but are not limited to) situations where:

    • the worker terminated their service because their wages were insufficient to meet their rising financial commitments;
    • the worker terminated their service because their spouse’s medical condition, coupled with a lengthy journey to and from work and prolonged absences from home, made it impractical to continue in the job;
    • the worker terminated her services because she was pregnant;
    • the worker terminated their service because of the ill health of their son.

    Cases where it has been held that a “domestic or pressing necessity” situation does not apply have included situations where:

    • the worker terminated their service because their domestic circumstances would have been affected by an interstate transfer;
    • the worker resigned because the employer transferred the business;
    • the worker terminated their service in order to get another job that would lead to a full tradesman’s qualification and licence.

    Please note, however, that the judgement for each case will ultimately depend on the individual facts and circumstances of the case.

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  • Federal Court Upholds Adverse Action Finding Against Qantas

    The full Federal Court has rejected a Qantas challenge to a Federal Magistrates Court decision that it coerced and took adverse action against an aircraft engineer who complained about being underpaid while on an overseas posting.

    The full court found that Federal Magistrate Raphael was correct in his findings and rejected the Qantas’ contention that it was denied procedural fairness.

    Federal Magistrate Raphael found the Qantas employee, a licensed aircraft engineer and ALAEA member, was subjected to adverse action after returning to his home base of Brisbane from working a six weeks posting at Japan’s Narita International Airport (Narita).

    The engineer made a claim for time off in lieu and payment for additional hours worked while at Narita.  Qantas rejected the claim and the engineer sought to commence the dispute resolution clause of the Enterprise Agreement.   One day later, Qantas suspended all overseas postings of Brisbane-based engineers.

    The ALAEA took action in response to the suspension and to a subsequent heated phone call between the engineer and a Qantas manager in which the manager allegedly said that future postings would only be granted to engineers who did not make time off in lieu claims.

    The full court found that Federal Magistrate Raphael was correct in his findings and that Qantas had not been denied procedural fairness during, or as a result of correspondence after, the case.  The full court decision is significant in clarifying that altering a person’s position to their prejudice is a ‘broad concept’.  Even though there were no fixed future overseas postings, the decision by Qantas meant there were no ‘possible’ postings at all, which was a detriment to the engineer.

    The case also considered that the phone conversation with the senior manager demonstrated an attempt to intimidate the engineer and make him withdraw a legitimate complaint.

    The full court said Qantas bore the onus “of proving that it did not suspend the overseas posting for a reason which included the reason that [the engineer] had made the claims for payment or invoked the dispute resolution procedure.”  It said that Qantas made “no attempts” during the appeal hearing to demonstrate that Federal Magistrate Raphael’s conclusion was erroneous, “glaringly improbable or contrary to compelling inferences“.

    Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 (4 May 2012)

  • Employers – When Can Monies be Deducted from Employee’s Wages?

    This is a warning to employers to be careful when deducting monies from an employee’s wages, especially in the absence of any specific provision permitting such action under the applicable industrial instrument, federal or state legislation or the contract of employment.

    Generally, in the absence of a specific statutory provision, an employer is prohibited from making any deduction of monies from an employee’s wages without the employee’s specific authorisation.

    The Fair Work Act 2009 (Cth) identifies the circumstances when an employer may be able to make deductions from an employee’s wages. Section 324 of the Act provides that an employer may deduct an amount from an amount payable to an employee if:
    • the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or
    • the deduction is authorised by the employee in accordance with an enterprise agreement; or
    • the deduction is authorised by or under a modern award or a Fair Work Australia order; or
    • the deduction is authorised by or under a law of the Commonwealth, a state or a territory, or an order of a court.

    Further, an authorisation must specify the amount of the deduction, and it may be withdrawn in writing by the employee at any time. Any variation in the amount of the deduction must be authorised in writing by the employee.

  • Pizza Shop on the Gold Coast – Alleged Underpayment of $20,000 – Fair Work Ombudsman Prosecution

    The Office of the Fair Work Ombudsman is prosecuting the operator of a Surfers Paradise pizza shop for allegedly underpaying 27 cooks, kitchen-hands, customer service attendants and delivery drivers almost $20,000.

    It is alleged the 27 Mondo Pizza staff were underpaid $19,093 between December 2009 and October 2010.

    Many of the workers were from non-English speaking backgrounds and were aged from 20 to 37 while working at the pizza shop.  They were allegedly underpaid minimum hourly wages, overtime and weekend penalties, with one employee allegedly underpaid evening work allowances.

    The largest amount owed to an individual employee was allegedly $2,313.

    The FWO is seeking penalties to be imposed against the company and its owner and orders for the company to pay back the alleged underpayments to the employees.

  • The Stated Purpose of a Social Media Policy for your Workpace may be…

    The purpose of this policy is to ensure that the company’s employees understand their obligations when using social media, such as Facebook, twitter, blogs, and are informed of the importance of managing the risks associated with such use that may impact on the reputation of the company and/or the safety of its employees and that may result in a breach of the company’s Conduct of Conduct and, policies, procedures or instructions.

    This policy is for the mutual protection of the company and its employees and is not intended to prevent, discourage or unduly limit employees’ expression of personal opinion or online activities.

  • Workplace Investigations assist with Complaints of Sexual Harassment

    ImageSexual harassment is unwanted and unwelcome behaviour of a sexual nature. State and Federal legislation make it unlawful to sexually harass another person in the workplace.

    Sexual harassment takes place when a person makes an unwelcome advance, or engages in other unwelcome conduct of a sexual nature in relation to another person in circumstances, where a reasonable observer would have anticipated that the person would be offended, humiliated or intimidated.

    Sexual harassment can occur as a result of a single incident or a pattern of behaviour.  It can be committed regardless of whether or not the behaviour concerned was intended to cause offence, humiliation or distress.

    Sexual harassment encompasses a broad range of physical, written or verbal behaviour, which may include, but is not limited to, the following:

    • Unwelcome physical contact or attempted physical contact, e.g. kissing, touching (some of which may constitute assault);
    • Insinuations about an individual’s private life;
    • Requests for dates;
    • Insults or jokes of a sexual nature;
    • Unwelcome sexual advances, suggestions, innuendoes or requests for sexual favours;
    • Offensive printed or photographic material; or
    • Offensive information transmitted electronically, e.g. via email or the internet.

    Unless workplace issues are dealt with quickly, effectively and impartially, the effect upon the organisation may be costly in terms of loss of valuable personnel, time, money and productivity and may adversely affect your organisation’s good reputation.

    An independent, external investigator who investigates complaints of sexual harassment and provides well considered findings and recommendations, based on facts, is invaluable to any workplace.  Do not attempt to investigate internally and risk the investigation process being flawed by partiality and inability to maintain confidentialty.

    The benefits of an external, independent investigator cannot be overlooked in maintianing workplace harmony, allowing minimal disruption, and providing findings that all parties involved are more likely to accept than if the investigation were conduicted internally.

    Please feel free to contact Brooke Pendlebury today to discuss external investigation options.

  • Accrual of Leave Entitlements and Workers Compensation

    The accrual of leave entitlements (such as, personal leave, long service leave, and annual leave), whilst receiving workers compensation payments is a matter which is dealt with by the National Employment Standards (‘NES’) in the Fair Work Act 2009 (Cth) (‘FWAct’).

    Section 130 of the FWAct provides that an employee is not entitled to take, or accrue, any leave entitlements during a compensation period when the employee is absent from work because of personal illness or injury for which the employee is receiving compensation under a relevant State’ compensation law, unless that same compensation law permits the accrual, or taking, of leave.

    Each States’ compensation law treats the issue of taking and/or accruing of leave slightly differently.  In most cases the States’ legislation is silent on how the matter is to be treated. Let’s consider the following States:

    • South Australia – annual leave continues to accrue for the first 12 months of incapacity and for incapacity extending beyond 12 months, that leave is deemed to have been taken and no more accrues.

    • Western Australia – workers compensation legislation does not provide for annual or other forms of leave.  Annual leave and long service leave only accrues for the first 15 days of incapacity, but being on compensation leave does not break a period that counts towards long service leave.

    • Tasmania – workplace standards advise that it is an industrial relations matter and unless an award or agreement stipulates that annual leave or long service ceases to accrue after a certain period of absence it will continue to accrue.

    • Victoria – legislation is silent on the issue of leave accrual and the inference is that entitlements cannot be taken nor do they accrue.

    • New South Wales and Queensland – all entitlements, such as leave continue to accrue as long as the contract of employment exists, irrespective of whether workers compensation is being paid.

    Section 130 of the FWAct only provides that an employee has no entitlement to take or accrue such leave, however, it is possible that an enterprise agreement (EA) may be reached between an employer and employee to allow the taking or accrual of leave entitlements.  In this regard although the entitlement is not permitted by the FWAct, nevertheless, the FWAct does not act as a bar to an agreement providing such an entitlement for an employee.  You should consider whether your agreement provides for the taking or accrual of such leave.

    Finally, in respect of long service leave entitlements, it appears that all of the States’ legislation pertaining to long service leave provides for accrual during a period of absence for injury or sickness.