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Category: News

  • Falsified Medical Certificate Justified Dismissal

    Fair Work Australia has upheld Westpac’s dismissal of a customer service employee who tendered a falsified medical certificate.

  • Adverse Action Claim Fails – Employee Just Misbehaving…

    The Federal Magistrates Court has found that Queensland Newspapers summarily dismissed one its printers because of repeated misbehavior, rather than his exercising of workplace rights, as was alleged.

    The printer, Mr. Gofton, had 34 years’ service.  He claimed the Company dismissed him after he sought to access the supplementary personal leave entitlement pursuant to the relevant industrial award, and when his request was refused, Mr. gofton complained about the refusal.  He argued the Company also forced him to attend a meeting with managers after the refusal.

    However, Federal Magistrate Jarrett found he was not entitled to the leave, as he had failed to fulfil the conditions for payment provided in the  award.  His Honour said the printer had failed to provide sufficient certification, and in any case the leave was only available for “illness and non-compensable injury“.

    The printer had sought the 9 days of leave when he returned to work after taking compassionate leave following the death of his mother, as he had exhausted all of his personal/carers’ leave during her illness. The Company’s HR manager, Ms. Hawkes, rejected the application on the basis that personal leave was not intended to replace compassionate leave.

    The court’s ruling meant two bases of Mr. Gofton’s adverse action claim failed, as his lack of entitlement to the leave meant the Company lawfully took adverse action when it refused to pay his leave claim.  Further, the court ruled that the Company had in fact adequately responded to Mr. Gofton’s complaint about the non-payment of the leave, and not failed to adequately respond to his complaint, as alleged by Mr. Gofton.

    His Honour also found that the Company did not require the printer to attend a meeting with its Operations Manager, and it did not summarily dismiss him because he made, or pursued, his supplementary leave claim. His Honour accepted that the “real reason” for the Company’s dismissal of the printer was his “unacceptable behaviour over a period of time and about which he had been warned“.

  • Mediation Tips

    MEDIATION

    Mediation is a process in which a mediator, independent of the disputing parties, facilitates the negotiation between parties, of their own solution to the dispute by assisting them to:

    –         isolate the issues in dispute,

    –         develop options for their resolution, and

    –         reach an agreement which accommodates the interests and needs of all the parties.

    The mediator does not impose a solution upon the parties.

    Tips on how to prepare for mediation:

    –         Many clients will be experiencing mediation for the first time, so educate them about the process and the roles of the mediator and legal representatives,

    –         Encourage clients to participate in joint sessions, and re-assure them that they can call for a break if needed,

    –         Have the client prepare an opening statement in the client’s own words,

    –         Allow the parties time to discuss non-legal issues before they start to talk about agreement,

    –         Tolerate emotion and tolerate discussion that is not rational.

  • Your OH&S Obligations from January 2012

    You may be aware that substantial changes are being made to the current Occupational Health and Safety laws.  The changes are an attempt to create ‘harmonisation’ across individual States and Territories that have historically had their own OH&S legislation.  A uniform approach to the new laws has been agreed to by all States, which will bring about a greater level of certainty and reduced costs to businesses.

    For workers, this will mean the same rights, entitlements and protection across Australia regardless of their place of work.  For businesses that operate across State and Territory borders, it will mean being subject to the same laws in each jurisdiction, creating a more streamlined and less complex OH&S process.

    The model laws include the new Work Health and Safety Act (WHS Act) and the Work Health and Safety Regulations (WHS Regulations).  They will be supported by national Codes of Practice.  All jurisdictions had committed to enacting the model Act by January 2012, however at this stage only ACT, NSW and QLD have passed the legislation.  WA and VIC have requested an extension of time (to 2013), but now is still a great time to review your current OH&S practices and begin aligning them to the new system.

    Some key changes are set out below:

    1. The new notion of a ‘PCBU’

    A PCBU is a “Person Conducting a Business or Undertaking” and will replace the term “employer” in the context of these matters. This is because the WHS Act now extends beyond traditional employer / employee relationships to include new and evolving work arrangements and risks.

    The PCBU is the principal duty holder for a business.

    2. The new definition of “worker”

    A person is a worker if they carry out work in any capacity for a PCBU, including work as:

    • an employee;
    • a contractor or subcontractor;
    • an employee of a contractor or subcontractor;
    • an employee of a labour hire company who has been assigned to work in the business or undertaking;
    • an outworker;
    • an apprentice or trainee;
    • a student gaining work experience; or
    • a volunteer.

    3. An increased “duty to consult”

    A PCBU must consult with workers when:

    • identifying hazards presenting risks;
    • making decisions about eliminating or minimising risks;
    • making decisions about the adequacy of facilities for the welfare of workers;
    • proposing changes that may affect the health or safety of workers; or
    • setting procedures for resolving health and safety issues;

    An intention of the Act is to ensure engagement and leadership in WHS management.  This has led to harsher penalties in relation to officer liability.  An “officer” is a senior executive who makes, or participates in making, decisions that affect the whole or a substantial part of a business or undertaking (Section 9, Corporations Act (Cth)).  Officers will be required to exercise “due diligence” to ensure that their business complies with its safety obligations. This means that officers may be liable for breaches of safety without an incident/accident even occurring, with penalties potentially including fines and imprisonment.

    Some further general tips to help you in preparing for the transition:

    • Consider the impact the new legislation may have on your current policies and procedures (eg. consultation arrangements, training, etc).
    • Undertake a gap analysis of your current health and safety system to determine what changes are required to achieve compliance.
    • Understand the necessary revisions to your current policies and procedures
    • Consider who in your organisation may be considered an “officer” and ensure each has a clear understanding on their responsibilities under the model Act.
    • Develop a more robust consultation process, given the expanded application of the duty to consult. Make sure that you include all relevant workers.
    • Consult with your workers about what is happening and any changes that will need to be made in readiness for the new legislation.
    • Implement changes and train workers in any new policies.
    • Monitor key developments in the jurisdictions where your business operates, and introduce them as required.

  • Work Related Driving and the Safety Issues

    Manage the risks associated with work related driving.

    Employer responsibilities

    Employer’s have a responsibility to identify, assess, control, monitor and review the risks associated with work-related driving, and consult with employees on work related driving occupational health and safety (OHS) issues.  Specific requirements of road traffic laws also have to be met and cover matters such as vehicle roadworthiness, driver licensing and road rules, e.g. speed limits. Where applicable to the organisation, ensure the OHS management system includes:

    • purchasing and maintaining a safe and roadworthy fleet
    • ensuring employees have the relevant appropriate driver licenses
    • scheduling work to account for speed limits and managing fatigue
    • providing information and training on work related driving safety
    • monitoring and supervision of work related driving safety program

    Employee responsibilities

    Employee duties include:

    • holding a current, valid driver’s license
    • abiding by all road rules, e.g. speed limits, not driving under the influence of drugs or alcohol, seat belts, not using mobile phones while driving
    • refraining from driving if impaired by tiredness or medication
    • reporting any incidents required by the employer’s program
    • carrying out any routine vehicle checks required by the employer

    OHS risk management system for work related driving

    Start by developing policy/ies on work related driving. This can include policies on vehicle selection and safe driving.

    In addition, procedures should be developed such as:

    • fatigue management
    • area specific safety requirements e.g. country driving
    • what to do in emergencies
    • regular checking of worker and vehicle credentials e.g. checking the driver’s licence is still in force

    When developing policy and procedures, make sure there is consultation with employees and areas of the organisation which may be able to add insight to the issues.

    Stay up-to-date with the latest safety information on vehicle types.  Have procedures which ensure the right vehicles are purchased for the job, e.g. will you need to transport clients with mobility issues.  Have regular, preventative maintenance procedures in place for your vehicles.  Consider driving risks when scheduling work, trip times, traffic congestion, routes, weather conditions.

    Monitor the safe driving system to ensure it is effective.  Regularly review policy and procedures .  Remind workers to report driving related incidents and collect information on these incidents to ensure effective risk management.

  • Social Media Policy for Your Workplace – Dealing with Facebook, Twitter, Blogs at Work

    A social media policy outlines for employees the guidelines or principles of communicating in the online world.

    A social media policy can be a company’s first line of defense to mitigate risk for both employer and employee.  You may already have a confidentiality agreement but it might not be enough.  Adding a few lines in the employee handbook to clarify that the confidentiality agreement covers employee interactions on social media sites might suffice.  But it is advised to create a separate social media policy to have something specific on file and accessible to employees and that they are aware of the policies existence.

    When drafting a policy, be sure to:

    1.    Remind employees to familiarise themselves with the employment agreement and policies included in the employee handbook.

    2.    State that the policy applies to multi-media, social networking websites, and blogs for both professional and personal use.

    3.    Internet postings should not disclose any information that is confidential or proprietary to the company or to any third party that has disclosed information to the company.

    4.    If an employee comments on any aspect of the company’s business they must clearly identify themselves as an employee and include a disclaimer.  The disclaimer should be something like “the views expressed are mine alone and do not necessarily reflect the views of the company.”

    6.    Internet postings should not include company logos or trademarks unless permission is asked for and granted.

    7.    Internet postings must respect copyright, privacy, fair use, financial disclosure, and other applicable laws.

    8.    Employees should neither claim nor imply that they are speaking on the company’s behalf.

    9.    Corporate blogs, Facebook pages, Twitter accounts, etc., could require approval when the employee is posting about the company and the industry.

    10.    That the company reserves the right to request that certain subjects are avoided, withdraw certain posts, and remove inappropriate comments.

  • Review of the Fair Work Act 2009 (Cth)

    Review of the Fair Work Act 2009 (Cth)

    Speaking in Melbourne in late December, the Government’s new Workplace Relations Minister, Bill Shorten, said the review of the Fair Work Act would be conducted by Reserve Bank board member John Edwards, former Federal Court judge, Michael Moore, and workplace relations academic Professor Ron McCallum, reporting by 31 May 2012.

    The review would examine and report on:

    1. the extent to which the Fair Work legislation was operating as intended including:
      • the creation of a clear & stable framework of rights & obligations which is simple &       straightforward to understand;
      • the emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations & related powers of Fair Work Australia;
      • the promotion of fairness & representation at work;
      • effective procedures to resolve grievances and disputes;
      • genuine unfair dismissal protection;
      • the creation of a new institutional framework & a single & accessible compliance regime; &
      • any differential impacts across regions, industries, occupations & groups of workers including (but not limited to) women, young workers & people from non-English speaking backgrounds; plus

        2. areas where the evidence indicates that the legislation’s operation could be improved consistent with its objectives.

  • Adverse Action Claim Fails

    Adverse Action Claim Fails – Incapacitated Employee

    The Federal Magistrates Court has ruled in late December last year that a federal government department did not take unlawful adverse action against a former employee who was given several opportunities to exercise her workplace right to a re-examination of her retirement on the grounds of incapacity.

  • Fair Work Australia: IT manager sacked for deliberately stopping emails from reaching the mobile phone of the organisation’s IR manager.

    Fair Work Australia: IT manager sacked for deliberately stopping emails from reaching the mobile phone of the organisation’s IR manager.

    Fair Work Australia has upheld the St Vincent de Paul Society’s dismissal of an IT manager who deliberately stopped emails from reaching the mobile phone of the organisation’s IR manager.  The dismissal was on the grounds of misconduct.

    IT Manager Sacked

    Senior Deputy President Hamberger found that the IT Manager, Mr. Williams, had deliberately disabled his employer’s ActiveSync software with the effect of denying the Workplace Relations Manager, Mr. McInerney, access to his email on his mobile devices.  The IT manager disabled the system following an argument with Mr. McInerney about
    the organisation’s motor vehicle policy.  Calamity, an IT security company, investigated the IT Manager’s actions and confirmed that he had disabled the ActiveSync software.

    Senior Deputy President Hamberger said he found Mr. Williams to be an unreliable witness, and he proceeded to accept that the IT Manager had accessed the email accounts of a number of employees, without their permission or knowledge.

    Calamity’s investigation indicated that he had concentrated on the accounts of the
    Workplace Relations Manager, Mr. McInerney, and St Vincent de Paul NSW Chapter Chief Financial Officer, Mr. Miller.

    Senior Deputy President Hamberger found the IT Manager’s conduct had been “completely at odds” with his employer’s reasonable expectation that he act with a high degree of integrity and honesty.  Disabling the ActiveSync and the unauthorised access to email accounts were actions that constituted “clear instances of misconduct“, he said, and this was reinforced by Mr. Williams’ lack of honesty in his response to the allegations.

    Mr. William’s alleged that he had been bullied by the Workplace Relations Manager, however, Senior Deputy President Hamberger found no evidence to support the IT Manager’s allegations, “I indicate for the record that I saw no evidence that that the [IR manager] had been bullied by anyone“.

    Mr Mark Williams v St Vincent de Paul Society [2011] FWA 6457 (27 September 2011)

  • Being Sacked for Facebook Comments

    FWA has upheld the sacking of an employee who posted an aggressive rant
    on his Facebook page about his work from his home computer, outside of work
    hours.  Deputy President Swan rejected the employee’s unfair dismissal claim and said the fact the comments were posted from his home computer and out of work hours, “does not make any difference…the comments were read by work colleagues and it was not long before [the colleague targeted in the comments] was advised of what had occurred. The [employer] has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.”

    Swan DP, in finding the Good Guys employee’s actions constituted serious
    misconduct, said that, “…[it was] difficult to accept that the [employee] was unaware of the consequences of his actions“.

    The Good Guy’s Employee Handbook referred to the need to be courteous and polite to colleagues as well as customers and contained detailed policies, including on sexual harassment and workplace bullying.  However, Swan DP found that even without the Handbook, “common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred”.

    The employee did not name the Good Guys, but posted on his Facebook page that he: “…wonders how the f@#k work can be so f@#king useless and mess up my pay again.  C#*ts are going down tomorrow.”

    The employee argued that his Facebook page was set to the maximum privacy setting and only his select group of 70 friends could see what he had written.  But Swan DP accepted that the group of 70 friends who had access to his Facebook page included some of his co-workers.  So, even though the employee had blocked the Operations Manager’s access that day (who was also a friend on his Facebook page), she had been advised about the
    comments from others at work.

    The employee advised FWA that he was frustrated with the problems in sorting
    out his pay following a move to a commission-based system, but Swan DP said
    there were “other avenues” he could have pursued, including raising it with the Director.   She also noted that a dispute settling procedure was available in the Employee Handbook, and that the employee could have consulted the Fair Work Ombudsman, which he had contacted initially, but chosen not to follow up.