Shane Koelmeyer's Blog (271)

Not on the shop floor: Inappropriate workplace behaviour justified summary dismissal

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held, in Talevski v Chalmers Industries Pty. Ltd. [2018] FWC 1807, that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

The employee had been employed since 1986, most recently in the position of Handyman, with the employer who operated a truck transportation and logistics company.

In November…

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Added by Shane Koelmeyer on May 14, 2018 at 10:25 — No Comments

Show and Tell: Employer ordered to advise employees about FWC’s stop-bullying orders

The purpose of the Fair Work Commission’s (FWC’s) anti-bullying jurisdiction as provided by the Fair Work Act 2009 (Cth) (FW Act) is not to punish bullies or to compensate an individual who has been bullied but to prevent future bullying in the workplace. It is for this reason that the jurisdiction does not allow the FWC to make a monetary order. The FWC does however have a broad jurisdiction to make any other orders it sees appropriate to prevent…

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Added by Shane Koelmeyer on May 7, 2018 at 16:19 — No Comments

Director delusion: FWC finds title of “Director” not sufficient to defeat award coverage

To be protected from unfair dismissal the Fair Work Act 2009 (Cth) (FW Act) requires an employee to:

  • Have completed the minimum period of employment; and
  • Earn less than the high income threshold; or
  • Be covered by a modern award or enterprise agreement.

It has often been the case that “managers” and senior officers of an enterprise will not be covered by a modern award or enterprise agreement, given the executive…

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Added by Shane Koelmeyer on May 7, 2018 at 16:13 — No Comments

Induction Construction: How to level-up your induction process to increase buy-in

Conducting a comprehensive induction for new employees is critical for compliance reasons but should also be viewed as an opportunity to connect new employees to the values and culture of the organisation they are joining.

An induction usually includes some kind of welcome, a walk around the workspace, a copy of the employer’s policies and procedures and a review of the emergency exits and muster points in case of an emergency.

Some inductions also include a workplace health…

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Added by Shane Koelmeyer on May 7, 2018 at 16:05 — No Comments

Show me the money – employee’s failed attempt at extortion resulted in justified dismissal

In a recent decision of the Fair Work Commission (FWC) (Heydon v The Highgate Group Pty Limited [2018] FWC 956), an employee’s summary dismissal was upheld after he tried to extort money from his employer and then deliberately withheld information about work health and safety (WHS) issues, forcing his employer to shut down a site for 1.5 days.

The employee was the Operations Manager for a business that designed, constructed and serviced…

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Added by Shane Koelmeyer on April 23, 2018 at 14:36 — No Comments

Need not apply: Anglo Saxon applicants preferred in online job advertisement

Late last week, a job advertisement from a Sydney Optus store was the subject of media attention for its discriminatory language. The job advertisement placed on Seek for a casual retail consultant at its Neutral Bay store stated that candidates who were “Anglo Saxon” and lived near Neutral Bay were preferred.

The advertisement prompted the question – had this Optus store engaged in discriminatory conduct that is considered unlawful under Australia’s anti-discrimination…

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Added by Shane Koelmeyer on April 23, 2018 at 14:31 — No Comments

You used to call me on my cell phone: Getting your mobile phone policies right

Mobile phones have become somewhat of a permanent extension of the individual in this day and age. It is rare to come across someone who does not have their mobile phone in their hand, pocket, bag or otherwise within reaching distance at all times.

It is concerning, however, when employees seem unable to detach themselves from their mobile phones during work hours. In white-collar industries, employers often face the problem of employees spending too much time at work taking personal…

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Added by Shane Koelmeyer on April 23, 2018 at 14:00 — No Comments

Message delivered: FWC denies delivery driver anti-bullying orders

In applications for orders to stop bullying, the conduct of an employer will not constitute bullying under section 789FD of the Fair Work Act 2009 (Cth) (FW Act) if it can be shown that the particular conduct is “reasonable management action carried out in a reasonable manner”.

In some cases, the alleged bullying behaviour will relate to changes that an employer has made to the usual processes and procedures of the business – which can have adverse…

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Added by Shane Koelmeyer on April 17, 2018 at 11:54 — No Comments

Should I stay or should I go: employee suspended without pay later terminated due to absence from work

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.

In our previous blog, we suggested caution about acting too quickly in these situations and discussed the need for employers to consider the individual circumstances of employees and to seek legal advice before making any decisions about whether the employee should return to work or…

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Added by Shane Koelmeyer on April 17, 2018 at 11:51 — No Comments

Hand it over: FWC finds employee fairly dismissed for refusing to hand over investigation evidence

Launching an investigation in response to a workplace complaint can be a serious business. Investigators are required to speak to witnesses and review any evidence that is available to them. Weighing the evidence provided during an investigation is a crucial step in reaching a valid conclusion about whether an alleged event or incident occurred as it is said to have occurred. 

But what happens when an employee withholds information or evidence that is relevant to an investigation?…

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Added by Shane Koelmeyer on April 17, 2018 at 11:48 — No Comments

Can you back it up? Dismissal unfair where allegations that an employee leaked information were unsupported and employee’s WHS reporting was justified

An employee who was summarily dismissed by her employer for allegedly leaking sensitive business information has been awarded 11 weeks’ compensation in the Fair Work Commission (FWC).

In this case, Bond v Wynbob Pty Ltd [2017] FWC 1337, the employee worked in a carpeting and flooring franchise that was facing a possible take-over by the franchisor.

The manager of the franchise believed that the franchisor’s actions toward claiming ownership over the…

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Added by Shane Koelmeyer on April 17, 2018 at 11:04 — No Comments

Big little lies: Dishonesty in the workplace and the potential ramifications

In order for any employment relationship to function, there needs to a level of mutual trust and confidence between employers and employees. It is often said that this goes to the very “heart” of the employment relationship. Indeed, employees need to trust that their employers will act honestly and not take advantage of them in the same way that employers need to trust that their employees will also act honestly and in the best interests of the business.

It is, unfortunately, not…

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Added by Shane Koelmeyer on April 17, 2018 at 11:00 — No Comments

Pulling up stumps: What the Australian cricket saga can teach us about leadership

Australian sports fans were shocked when three Australian cricketers were caught up in a ball tampering scandal, leading to the downfall of the Australian cricket captain and his deputy.

The public watched while the story unfolded with the Australian cricket captain initially stating that he and the “leadership group” had instructed another player to tamper with the ball. There was much discussion about how the culture of the Australian cricket team had gone sour and how the team had…

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Added by Shane Koelmeyer on April 17, 2018 at 10:56 — No Comments

Was blind but now I see: General Manager wilfully blind to contraventions

In the decisions of the Federal Circuit Court of Australia in Fair Work Ombudsman v Raying Holding Pty Ltd & Anor (No.2) [2017] FCCA 2148 and Fair Work Ombudsman v Raying Holding Pty Ltd & Anor (No.3) [2018] FCCA 668, the General Manager of a labour hire business was fined $43,000 for his involvement in contraventions of the Fair Work Act 2009 (Cth) (FW Act).

The Fair Work Ombudsman (FWO) initiated proceedings in…

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Added by Shane Koelmeyer on April 6, 2018 at 14:10 — No Comments

Coughs and sneezes spread diseases – managing sick leave during the cold and flu season

It’s that time again – cold and flu season. In this blog, we explore some key issues around managing sick leave during this tricky time of the year.



Sick leave



Sick leave as a paid entitlement has not always existed in Australia. It was in 1922 that the first paid sick leave entitlement appeared in an industrial instrument known as the Engineers Award, which stated that “No employee shall be entitled to payment for non-attendance on the ground of…

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Added by Shane Koelmeyer on April 6, 2018 at 14:04 — No Comments

PIPped at the post: Dismissed employee’s illnesses not enough to defer performance management processes

Managing underperformance and engaging in performance management processes can be difficult and stressful for both employees and their managers.

It is not uncommon for employees who are required to participate in a performance management process to raise concerns about the impacts of the process on their health (often relating to anxiety or stress). When these issues are raised, employers find themselves in a difficult position – how to press on with managing underperformance without…

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Added by Shane Koelmeyer on April 6, 2018 at 12:30 — No Comments

A guy, two part-time jobs and an overtime claim: Federal Circuit Court dismisses claim for cumulative overtime

It is increasingly common for workers, particularly those employed on a part-time basis, to hold multiple jobs. Usually the positions will be with different employers and are worked at different days and times.

In Lacson v Australian Postal Corporation [2018] FCCA 511, the Federal Circuit Court of Australia heard an underpayment application by an employee who claimed that the Australian Postal Corporation (Australia Post) did not pay his overtime, rest relief and meal…

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Added by Shane Koelmeyer on March 26, 2018 at 11:25 — No Comments

The dos and do-nuts of business growth and expansion

It is a story told and heard often – a small business starts with a single, great idea or product and experiences great success in a very short amount of time. However, problems arise when the business, wishing to grow its success, decides to create more products, open more offices or stores and hire more staff – without having all of the appropriate systems and processes in place to deal with the additional responsibilities and liabilities that are attached to expansion.

The recent…

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Added by Shane Koelmeyer on March 26, 2018 at 11:20 — No Comments

Turn around: What is proper notice of termination and when does the exception to redundancy pay apply?

The loss of client contracts can be devastating for businesses – it can also be par for the course.

Some employers operate exclusively on a continuous rotation of cycling client contracts won and lost regularly. Of course, this a perfectly reasonable way of conducting a business, but what does it mean for the employees engaged to perform work under those contracts?

What is the status of their employment if a client contract is lost? And what are their entitlements if their…

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Added by Shane Koelmeyer on March 12, 2018 at 14:33 — No Comments

Don’t be so reckless: Work health safety prosecution update

Two recent work health and safety prosecutions highlight to employers the importance of following adopted safety plans and having regard to available guidance material when developing safety documents and the serious consequences for safety offences.

The harmonized work health and safety legislation creates three categories of offences, the most serious of which is a Category 1 offence, which attracts maximum penalties of 

  • $3 million for a…
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Added by Shane Koelmeyer on March 12, 2018 at 14:30 — No Comments

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