Shane Koelmeyer's Blog (217)

No Vacancy: Employee’s drunken attempt to re-enter workplace warranted dismissal

An employer who relied on their zero-tolerance alcohol policy when dismissing an employee who drunkenly tried to access the workplace out-of-hours has successfully defended the dismissal before the Fair Work Commission (FWC).

In Lewer v Inco Ships T/A Inco Ships Pty Ltd [2017] FWC 6666, the FWC heard that an employee, who worked on a tanking vessel, attempted to re-enter the vessel after dinner and a few drinks so that he could sleep-off the alcohol. When he…

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Added by Shane Koelmeyer on January 10, 2018 at 13:24 — No Comments

Lawful but not reasonable: Employer unreasonably ends Bryon Bay “work from home” arrangement

Employees have an implied duty to obey their employer’s reasonable and lawful directions. Whilst employers cannot direct an employee to engage in conduct which is unlawful, the reasonableness of an employer’s direction will depend on the individual circumstances.

In Parkes v Fat Prophets Pty Ltd [2017] FWC 6121, the Fair Work Commission (FWC) held that an employer’s “unreasonable ultimatum” to an employee that he relocate to Sydney or lose his job was a…

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Added by Shane Koelmeyer on January 10, 2018 at 13:13 — No Comments

Puddle trouble: $275,000 damages bill flows from shallow puddle injury

In a recent decision of the Victorian County Court, a university has been ordered to pay $275,000 in damages to a security control room operator who worked on the university campus (Savage v Monash University and Programmed Maintenance Services Ltd [2017] VCC 1774).

The control room operator was walking from her car to the security control room in steel capped boots when she stepped through a puddle onto the uneven surface below and injured her ankle. The ankle injury…

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Added by Shane Koelmeyer on January 10, 2018 at 12:54 — No Comments

I can show you the world – Misleading and deceptive conduct in recruitment

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process. 

The Australian Consumer Law (ACL) provides that it is illegal for a business to engage in conduct that…

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Added by Shane Koelmeyer on January 10, 2018 at 12:30 — No Comments

In the box to the left – The return of employer uniforms on termination of employment

Ending the employment relationship can sometimes be difficult and often, those responsible for facilitating the termination are so relieved to have it all over that they don’t worry about pursuing the return of seemingly insignificant employer property, like used uniform items.

The return of uniform items at the end of employment, particularly those with company branding, can seem like quibbling over something small. However, the purpose of pursuing the return of such property is not…

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Added by Shane Koelmeyer on January 10, 2018 at 12:25 — No Comments

Send me your location: Use of GPS devices in the workplace

Most workplaces utilise some form of surveillance, the most obvious of which is monitoring the use of email and internet. Surveillance can also extend to the use of GPS tracking in company vehicles or the use of location services in devices, like mobile phones or tablets.

The use of GPS trackers in vehicles and devices is most common in roles where employees work away from a desk, at multiple different locations throughout the day – like couriers or delivery drivers, tradespersons or…

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Added by Shane Koelmeyer on December 12, 2017 at 12:00 — No Comments

You’re invited! (but BYO party): Organising social events for employees

It is almost undisputed that the majority of Australian workers are spending more of their time at the workplace. It is therefore unsurprising that employees and employers are becoming more concerned with the quality of the time that employees spend at work and the relationships they have with their co-workers.

As a result, there has been an increased focus by employers on establishing a positive “workplace culture” through employer-sponsored social events and team-building activities…

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Added by Shane Koelmeyer on December 12, 2017 at 10:56 — No Comments

Social savvy – Our 2017 wrap-up of social media in the workplace

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other.

Throughout 2017 the courts, the tribunals and employers more generally have continued to iron out the wrinkles in how they deal with social media in the workplace.

In this blog, we look back on some of the more interesting social media cases from the year that was 2017.

The employee in…

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Added by Shane Koelmeyer on December 12, 2017 at 10:46 — No Comments

A bird, a bus and a bruised (but not broken) employment relationship: Remedies for unfair dismissal applications

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation.

Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission (FWC) must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.

When considering…

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Added by Shane Koelmeyer on December 12, 2017 at 10:27 — No Comments

Time after time: Re-offending directors and their cleaning company to pay hefty penalties for breaching FW Act

In a recent Federal Circuit Court decision, Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd & Ors [2017] FCCA 2838, Judge Lucev ordered significant penalties against a Perth cleaning company and two of its directors.

The case concerned only three underpaid employees but resulted in more than $510,000 in penalties for contraventions of the Fair Work Act 2009 (Cth) (FW Act).

All three employees were Taiwanese…

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Added by Shane Koelmeyer on December 12, 2017 at 10:15 — No Comments

Captain Underpants: Undies protest not industrial action – so what is?

A national campaign with the slogan #SaveDave, which took the dismissal of a union representative employee all the way to the Fair Work Commission (FWC), has highlighted to employers the importance of recognising what is, and what is not, industrial action.

What is industrial action?

The regulation of industrial action set out in the Fair Work Act 2009 (Cth) (FW Act) is limited, in large part, to…

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Added by Shane Koelmeyer on December 12, 2017 at 9:30 — No Comments

Look what you made me do: Human resources manager ordered to pay $21,760 for her participation in underpayments and falsifying records

In recent years, the Fair Work Ombudsman (FWO) has made it clear that it is prepared to prosecute not only employers, but also individuals and third parties ‘involved in’ contraventions of the Fair Work Act 2009 (Cth) (FW Act).

Most recently, the FWO was successful in its prosecution of a Chinese restaurant as well as its sole director, its human resources manager and its store manager for various breaches of the FW Act, which resulted in 85…

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Added by Shane Koelmeyer on December 12, 2017 at 9:27 — No Comments

It’s all in the mind – Psychological and psychometric testing in the workplace

Recently, the South Australian government announced that two of its employees engaged as carers were found unsuitable to work with children, following the introduction of a new testing and screening process involving psychological testing.

The new tests were introduced following the recommendations of the State’s Child Protection Systems Royal Commission report. As a result, all new applicants for positions as carers in South Australian residential care facilities are now required to…

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Added by Shane Koelmeyer on December 12, 2017 at 9:04 — No Comments

Flexed to the limit: How the Fair Work Act encourages flexibility in the workplace

A recent survey conducted by global workplace solutions group, ManpowerGroup, has revealed that almost 90% of workers are opting for, or at least open to, arrangements that allow for flexibility in lieu of traditional “9 to 5” work arrangements.

The research report, #GigResponsibly – The Rise of NextGen Work, uses the term “NextGen Work” to…

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Added by Shane Koelmeyer on November 7, 2017 at 12:00 — No Comments

Safety not guaranteed – Workplace bullying and work health and safety

The anti-bullying measures in the Fair Work Act 2009 (Cth) were introduced in response to the Government Inquiry report, Workplace Bullying: We Just Want it to Stop, which recognised the problem of bullying in workplaces as both an industrial relations issue, and a risk to the work health and safety of workers.

The SafeWork Australia…

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Added by Shane Koelmeyer on November 7, 2017 at 11:48 — No Comments

Why, I do declare! – Statutory declarations in the employment context

In Australia, we rely on statutory declarations for a range of purposes, from declaring identity details when documents are lost to making statements about particular situations, including in the employment context.

What is a statutory declaration?

In…

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Added by Shane Koelmeyer on November 7, 2017 at 11:31 — No Comments

Say it, don’t spray it: Paint gun operator summarily dismissed for serious misconduct

The Fair Work Regulations 2009 provide a non-exhaustive list of instances that might constitute “serious misconduct” warranting summary dismissal. We have previously discussed these Regulations and what might or might not constitute serious misconduct in our blog, “If I can be serious for a moment – getting serious about serious…

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Added by Shane Koelmeyer on November 6, 2017 at 13:01 — No Comments

Top of the food (supply) chain: Woolworths enters compliance deed to eliminate trolley collector exploitation

Earlier this year, we told the tale of the of the trolley collectors in Once upon a trolley – an ongoing saga involving underpayments, vulnerable workers and the Fair Work Ombudsman’s (FWO’s) scrutiny of labour supply chains. In that blog, we focussed on an enforceable undertaking that involved Coles supermarkets and the…

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Added by Shane Koelmeyer on November 6, 2017 at 12:52 — No Comments

Let me restart: Anti-bullying orders issued to employer and employee to reset the employment relationship

The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (FWC) a broad power to make any order it considers appropriate to prevent a worker from being bullied at work (except an order which requires monetary payment).

In Burbeck v Alice Springs Town Council; Davison; Price;…

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Added by Shane Koelmeyer on November 6, 2017 at 10:58 — No Comments

The student becomes the master: When work experience turns into paid employment

Earlier this year, we wrote about the growing concern of an increasing number of people being engaged in unpaid work that was unlawfully described as work experience, a vocational placement or an internship (see our blog “The Intern”).

When engagements of this kind are legitimate,…

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Added by Shane Koelmeyer on November 2, 2017 at 16:00 — No Comments

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