| workplace law
General protections claims brought under the Fair Work Act 2009 – how you can defend these claims? How can you pursue these claims?
Understanding what is a workplace right, what constitutes an adverse action, and how to manage these in your workplace.
LinkedIn Contacts – who owns them? The employer or employee?
The legal question of the ownership of LinkedIn contacts is getting interesting. Two of Australia’s leading legal recruitment companies are preparing for a court battle on this issue.
A Sydney-based legal recruiter, who left a top legal recruitment firm Naiman Clarke a few months ago to join another high-profile legal recruiter, Bill Yair, at Yair & Associates, is the person at the centre of the legal dispute.
The recruitment consultant, a former solicitor, had established over the years a wide network of contacts, and during her three-and-a-half years with Naiman Clarke built a large LinkedIn network. When she left Naiman Clarke, she took some time off, and then started work at Yair & Associates and updated her LinkedIn profile to show her new employer. She then began to post jobs and items of interest to her network.
The recruitment consultant had standard post-employment restraint provisions dealing intellectual property, soliciting of clients and confidentiality in her employment contract with Naiman Clarke. And, her employment contract also contained a clause requiring her to act in the best interests of Naiman Clarke at all times during her employment.
The restraint conditions included a six-month restraint preventing her from soliciting Naiman Clarke clients or using its intellectual property, but LinkedIn or social media were not specifically mentioned.
When Naiman Clarke became aware that the recruitment consultant had posted jobs to her network, and had received a response from a candidate in it, it demanded she cease using her LinkedIn network until her restraint period of six-months was expired. Naiman Clarke then took action in the NSW Local Court seeking damages and enforcement of its restraint provisions.
FWA Statistics on General Protections & Unfair Dismissals Claims
FWA has received more than 550 General Protection applications every quarter this financial year, and Unfair Dismissal claims continue to rise, new Fair Work Australia (FWA) data reveals. FWA received 566 General Protections applications in the March quarter, which is in line with the figures for the previous 6 months. The bulk of these applications were finalised, and FWA issued 134 unsuccessful resolution certificates. With Unfair Dismissals, FWA received 3219 applications in the quarter, higher than average. The vast majority of the Unfair Dismissal claims were settled at, or before, conciliation. At conciliation, FWA continued to deal with the overwhelming majority of the claims before it by telephone, with only 76 conducted in person and one by video conference. The overall settlement rate at conciliation remained high, at 79%. The tribunal arbitrated 64 dismissal claims in the quarter, finding 24 were unfair and 40 fair. It made just 5 reinstatement and 18 compensation orders.
Small Business & FWA
While 609 Unfair Dismissal applications related to a small business employee, importantly, only 2 were rejected because the dismissal was consistent with the Small Business Fair Dismissal Code.
A retailer, who summarily dismissed a regular casual employee by text message on Boxing Day 2010, has been ordered by Fair Work Australia to pay her almost $10,000 compensation.
In Sedina Sokolovic v Modestie Fashion Australia Pty Ltd (ABN: 671444920838) [2011] FWA 3063 (18 May 2011) Commissioner Cambridge said that dismissing the salesperson by SMS deprived her of any opportunity to respond.
It was not reasonable to dismiss an employee, he said, “without a fundamental process involving an opportunity to put a case, face-to-face, to the decision maker. The requirement for such a process is primarily derived from the notions of natural justice.”
Failing to follow such a process “can also infer a lack of courage to face the employee,” Commissioner Cambridge said. A dismissal by text, or without face-to-face communication, created the appearance that the employer lacked the courage of his or her convictions and “immediately” opened the decision to challenge on legal and ethical grounds, he said.
The employer told the tribunal that text message was the “most commonly used form of communication” between her and the assistant.
But Commissioner Cambridge said:“There is of course no comparison that can be made between day to day communication about a variety of work and non-work-related matters, and advice of termination of employment.”
Commissioner Cambridge said a text message was generally an “inappropriate means for notification of dismissal or reason(s) for dismissal“.
The case also considered issues surrounding casual employment, and small businesses and unfair dismissal.
Casual employees and the National Employment Standard (NES)
Only certain NES entitlements apply to casual employees. These are:
In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment are entitled to:
Implied Terms of Contracts – What Are They?
In addition to the express terms of a common law contract of employment, the contract may also include implied terms. Implied terms are contractually enforceable provisions which are taken to be part of the contract of employment.
Terms may be implied by fact, implied by custom, implied by the common law, or implied by statute. These terms do not need to be written into the contract to be enforceable.
The criteria for implying a term in fact include the following:
The test at present is whether the implication of a particular term is necessary for the effective operation of a contract of employment.
Courts have held that employees are under legal duties to be obedient and faithful and must provide care and skill to their employer. The main employee duties are:
1. An employer has the power to give orders to employees and expect them to be obeyed. This is balanced by employers having to act fairly and reasonably.
2. The duty of fidelity includes:
3. Employees are expected to carry out their tasks and achieve a standard of skill and competence that can reasonably be expected of someone with their experience and training, including not to unreasonably cause injury or damage in the course of doing their work.
An employer’s duties involve:
As mentioned earlier, terms in an employment contract can also be implied by custom. There must be evidence that the custom is so well known that everyone making the contract in that situation can reasonably be presumed to have imported that term into the contract of employment. This is due to the fact that much of the daily operations of employment are governed by informal understandings and generally by cooperation between the parties. Employer policies and codes of conduct may be relevant here, for example, an employee may claim redundancy amounts through the incorporation of his/her employer redundancy policy that was introduced to him/her at an induction to the new employment.
NOTE: To ensure that matters are not left to the Courts to decide (or imply) employers should ensure that all important matters are dealt with in the employment contract expressly (i.e. in writing), so to provide certainty in the terms of the relationship. Drafting of employment contracts is a critical process that requires consideration and care.
Some of the side effects in the workplace of bullying and harassment:
Victims:
Workplaces:
– There are more sick days
– Increased staff turnover
– Dysfunctional relationships
– Reduced efficiency and productivity
– Less motivation and enthusiasm to perform work well
– Poor morale, erosion of employee loyalty and commitment;
– Less workplace support,
– Increased costs associated with recruitment and training;
– Increased workers’ compensation claims;
– Increased indirect costs such as management time, engaging mediators or counsellors;
– Adverse publicity and poor public image.
Understanding that Not Everything that Upsets or Annoys or Offends in the Workplace is Bullying
Bullying is a serious complaint that someone makes against another. Which means it is critically important for employees and managers to also understand what is NOT bullying and harassment – as much as it is to know what IS bullying and harassment.
Too often, I see complainant’s lodging multiple complaints against another person in the workplace, often against their manager, that constitute nothing more than ordinary workplace situations, or reasonable management directions to perform work or constructive feedback on the quality of their work – and these complaints of bullying have the effect of trivialising bullying in that workplace.
Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 (30 November 2010).
The Federal Court found in this case that a mining worker (Williams) in Western Australia who was engaged as a “casual”, was not a “genuine casual” employee, and so he was entitled to permanent employment benefits. The Federal Court ruled that the parties to the employment contract could not define the relationship as “casual” and expect that characterisation to prevail, where a court did not regard the relationship to be truly “casual”.
This meant the Company (MacMahon) was liable to pay the employee back pay for unpaid annual leave of just over $8,000. Further, MacMahon’s was fined almost $15,000 for contravention of the Workplace Relations Act (now the Fair Work Act 2009).
Facts:
Williams was employed, as a miner, by MacMahon’s at the Argyle mining site in Western Australia. The letter of employment provided that Williams was appointed as a “casual miner” and was required to work on a “fly-in fly-out” basis according to a roster which saw him work “two weeks on and one week off”. Williams was paid an hourly rate of $40 which was expressed to be all inclusive of overtime, penalty rates, allowances and a casual loading (and in lieu of paid leave entitlements). The employee was required to work 12 hour shifts on a two weeks on/one week off roster, and the letter of employment stated that the relationship could be terminated by one hour’s notice by either party.
Williams’ employment was terminated approximately one (1) year after his appointment, and he was given one (1) hour’s notice as per the letter of employment and did not receive any payment for annual leave on termination. William’s noted that until the termination of his employment, he constantly worked the rostered shift rotation.
The Federal Court, in deciding that Williams’ was not a casual employee, was influenced by the following:
MacMahon’s relied on the termination provision to argue that the contract was expected to have a short, intermittent life. However, after considering the contract overall, the Court decided that the real expectation of the parties was that the contract would only be terminated for cause.
Critical Finding:
The Court found that MacMahon’s was required to pay Williams the annual leave he would have been entitled to as a permanent employee. The Court also prevented MacMahon’s from relying on the contract to offset the casual loading in satisfaction of annual leave entitlements. The Court ruled that the contract term which specified that the hourly rate paid compensated Williams’ for his annual leave had no effect as a person normally cannot contract out of their entitlement to be paid out annual leave during or at the end of their employment.
Further, Justice Barker found that MacMahon’s could not offset the percentage of the hourly rate they had been paying against the claim for annual leave, because the loading built into the hourly rate of $40 was a global percentage calculated to compensate Williams for the absence of a range of benefits, not just the absence of annual leave. More importantly, the principal reason why the argument was rejected was because of the impact of section 173 of the Workplace Relations Act 1996, which provided as follows:
“A term of a workplace agreement or contract has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard.”
Justice Barker considered there was an inconsistency between the contractual term about paying a loading in lieu of giving annual leave during the employment and the statutory right to be paid for any untaken annual leave in money form on termination of the employment under the then Australian Fair Pay and Conditions Standard. He said:
“Section 173 reflects a parliamentary intention that a person cannot, by one means or the other, contract out of their entitlement to be paid out annual leave and other leave entitlements at the end of a employment period, save for the particular provisions allowing for sacrifice of annual leave.”…
This decision was given in the context of the then prevailing provisions of the Workplace Relations Act which have now been superseded by the provisions of the “National Employment Standards” found in Part 2-2 of the Fair Work Act 2009. The equivalent provision to Section 173 of the former Workplace Relations Act in the current Fair Work Act is section 61(1) which provides:
“This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in sub section 55 (5)”.
While the words of section 61(1) of the Fair Work Act are different to those of section 173 of the Workplace Relations Act, it seems that the intention is the same and it is expected that the same approach as applied by Justice Barker to the meaning of section 173 in the Williams’ case will also be applied to section 61(1) of the Fair Work Act.
Impact of Decision:
The impact of this case is that, as an employer, there are dangers in engaging employees as casuals as a matter of course even more so with an offset provision for permanent employment entitlements. It is important to give proper consideration to the actual role the employee will be performing to ensure he/she is engaged (and paid) on the correct basis. Merely describing the relationship as one of casual employment in a letter of offer and/or employment contract may not be determinative of the issue. Courts and tribunals will look behind the “name tag” to the facts of the case to decide whether an employee is really a casual or not.
In this case, the Federal Court considered the following key features of casual employment:
If your employees may be regarded as anything other than casual employees, you may be exposed to back pay claims for annual leave, and potentially claims for redundancy pay (where applicable). Furthermore, under a number of modern awards casual employees have the right to elect to convert to part-time or full-time employment after a qualifying period, and the Company must be aware of this.
What constitutes workplace bullying?
It is important to understand what constitutes bullying, and what does NOT constitute bullying in the workplace. Too often employees mistake performance management, or receiving a direction to perform a task they do not like, as bullying.
One definition of workplace bullying is:
“the repeated less favourable treatment of a person by another or others in the work place which may be considered unreasonable and inappropriate workplace practice.
[Such behaviour…] includes behaviour that intimidates, offends, degrades or humiliates a worker.”
(Quote from Australian Human Rights Commission brochure – “Good Practice, Good Business.”)
The key here is ‘repeated less favourable treatment’.
Bullies often utilise power, skills or position in the workplace, and they target vulnerable people.
Bullying can include the following actions if received on a repeated and unreasonable basis:-