Shane Koelmeyer's Blog (217)

“WCI: NSW – Workplace Conduct Investigation”

Warning for employers relying on investigation reports in a termination   

What happens when the relationship of trust necessary between an employer and an employee breaks down? As the employer, who do you trust when you are trying to ensure honesty in the workplace?…

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Added by Shane Koelmeyer on August 31, 2017 at 16:38 — No Comments

The one that got away: Correctional services officer reinstated following inmate escape

In a recent decision of the NSW Industrial Relations Commissions (NSW IRC), a senior corrective services officer (the Employee) was reinstated following his dismissal for involvement in an incident which lead to the escape of a maximum security inmate (Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051).…

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Added by Shane Koelmeyer on August 30, 2017 at 17:48 — No Comments

A diamond (miner) in the rough – Mining employee validly dismissed for incident management breaches

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences. 

The…

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Added by Shane Koelmeyer on August 22, 2017 at 15:11 — No Comments

“Oh Behave! : What is a workplace Code of Conduct?”

At Workplace Law, we work with our clients to help them establish a set of workplace values and a Code of Conduct to set the standards expected from all employees.

Google’s much-publicised decision to dismiss an employee in America who wrote an internal memo to all staff criticising the tech company’s diversity policies has highlighted the necessity…

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Added by Shane Koelmeyer on August 22, 2017 at 14:56 — No Comments

Doctor, Doctor: Full Bench rejects appeal from employee who altered medical certificate

Employers and human resources professionals may often be provided with medical certificates which they are not quite sure about, prompting them to look at the certificate a bit more closely.

In Bluzer v Monash University [2017] FWCFB 4032, the Full Bench of the Fair Work Commission (FWC) considered an appeal against a decision to…

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Added by Shane Koelmeyer on August 22, 2017 at 14:51 — No Comments

Better safe than sorry – Best practice for dealing with poor performance issues

Here at Workplace Law, we regularly assist clients with unfair dismissal claims, which often involve disputes over performance management processes and meetings.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect…

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Added by Shane Koelmeyer on August 11, 2017 at 11:30 — No Comments

“Dear all...” – FWC finds employee’s heated mass email a valid reason for dismissal

Email, in one form or another, has been around for more than 40 years but employers and employees are still coming to grips with how to manage email etiquette in the workplace.

In a recent decision of the Fair Work Commission (FWC) (Mr Andrew Pearce v Viva Energy Refining Pty Ltd [2017] FWC 3817), an employee was validly dismissed for…

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Added by Shane Koelmeyer on August 10, 2017 at 16:22 — No Comments

To everything there is a season: Ski employee was not dismissed

The Fair Work Commission (FWC) has dismissed an application for unfair dismissal in Bosley v Kosciuszko Thredbo Pty Ltd [2017] FWC 3763, upholding the jurisdictional objections of the employer.

Mr Bosley was employed as a fulltime seasonal employee in the ski patrol team and had worked in this capacity for the past 13 ski seasons. His…

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Added by Shane Koelmeyer on August 10, 2017 at 16:10 — No Comments

“Is it a bird? Is it a plane? No it’s a …redundancy”: Managing workplace restructures

An inevitable fact of a growing business is that at some point it will undergo an organizational restructure. These will undoubtedly affect employees across all levels of the company. Employers should be ready to appropriately manage and communicate these changes to employees.

Changes to duties…

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Added by Shane Koelmeyer on July 31, 2017 at 11:30 — No Comments

This is how we do it: Using workplace laws to support HR’s position on staffing decisions

HR professionals inhabit a unique environment with a unique set of challenges  they are expected to balance compliance, business interests and employee interests all at once. The most difficult position a HR professional can find themself in is being asked to carry out a business decision by a superior that conflicts with their obligations to ensure compliance with workplace laws, including the protections…

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Added by Shane Koelmeyer on July 31, 2017 at 11:30 — No Comments

No shoes, no shirt and I still get service – the changing nature of appearance and dress code policies

Most workplaces have an appearance and dress code policy which commonly requires employees to wear a particular uniform or have a certain standard of appearance.

Increasingly, workplaces have dropped or relaxed dress code policies which previously required that professional business attire would be worn at all times in the office.…

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Added by Shane Koelmeyer on July 31, 2017 at 11:00 — No Comments

An induction on deductions from employees’ pay

Student accommodation provider UniLodge faced reports this month that it deducted a total amount of $74,336.00 for “rent” over the period October 2011 to April 2016 from the combined salary of two of its onsite caretakers.

The husband and wife caretakers claimed that they were paid a total of $85,784.40 gross over the same period, despite being…

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Added by Shane Koelmeyer on July 20, 2017 at 16:08 — No Comments

“O Captain! My Captain!” – Not a vindication, but dismissal was harsh: FWC says captain who failed employer’s alcohol test was unfairly dismissed

Setting policies and procedures for the effective management of drugs and alcohol in the workplace is important, particularly for safety critical industries.

The overarching goal of such policies and procedures is to ensure employees do not show up for work in an impaired state and place themselves, other employees or their employer’s business at…

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Added by Shane Koelmeyer on July 20, 2017 at 15:50 — No Comments

“Because I said so …” The causal link between adverse action and workplace rights

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) aim to protect employees from adverse action (including dismissal) because of a proscribed reason. Proscribed reasons include the existence of a workplace right and the exercise (or failure to exercise) a workplace right.

By way of example, an employee has a…

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Added by Shane Koelmeyer on July 20, 2017 at 15:30 — No Comments

“You shall not pass!” Jurisdictional objections in unfair dismissal claims

When an employer receives notice from the Fair Work Commission (FWC) of an unfair dismissal claim, the first question they should ask is – does the FWC have jurisdiction to hear the matter? 

There are numerous circumstances in which the FWC may not have jurisdiction and/or in which an applicant may not be eligible to make a claim to the FWC.…

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Added by Shane Koelmeyer on July 14, 2017 at 14:55 — No Comments

Called out in the Commission: Employee ordered to pay employer’s legal costs

In a rare decision by the Fair Work Commission (FWC), an employee has been ordered to pay her former employer’s legal costs after it held that the employee’s application had no prospects of success, was without basis and was an abuse of process.

Costs under the Fair Work Act 2009 (Cth)…

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Added by Shane Koelmeyer on July 14, 2017 at 12:51 — No Comments

“Let me make one thing perfectly clear …” FWC’s practical approach to notice of termination

Earlier this year, we discussed the importance of providing specific written notice of termination to an employee (see our blog: Two Weeks’ Notice: What are the requirements for notice of termination?) in accordance with section 117 of the Fair Work Act 2009 (Cth) (FW Act).

Section 117(1) of the FW Act states that, an employer must not terminate an employee’s employment unless,…

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Added by Shane Koelmeyer on July 10, 2017 at 14:42 — No Comments

Claiming a pizza the action – FWC lacks jurisdiction to deal with dispute about Delivery Driver of the Year

Reward and recognition programs are a great way to incentivise employees to work that little bit harder. Often these programs take the form of friendly, employer-sponsored competitions between employees where the winner takes home a prize.

These in-house competitions are generally run at the employer’s discretion and it maintains control over the…

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Added by Shane Koelmeyer on July 10, 2017 at 14:26 — No Comments

It’s going viral: E-medical certificates

The colder weather marks the start of the cold and flu season where a cough or sneeze starting from one person quickly spreads throughout the whole office. The season also creates challenges for employers who may have to manage a dwindling workforce where employees (or their family members) may be struck down with an illness and need to take personal (sick) / carers leave.…

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Added by Shane Koelmeyer on July 5, 2017 at 15:56 — No Comments

And the award goes to... FWC finds high income earner covered by modern award

Identifying correct Modern Award coverage and classification can be challenging at the best of times and getting it wrong can have serious consequences. It is well understood that misclassifying employees can impact on rates of pay and result in underpayment claims, but employers sometimes forget that employees who are paid well above modern award base rates of pay can still be covered by a modern award for other purposes,…

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Added by Shane Koelmeyer on July 5, 2017 at 15:30 — No Comments

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