Shane Koelmeyer's Blog (437)

Mask up: Commission finds mask mandate to be a lawful and reasonable direction

Employees have a duty to comply with lawful and reasonable directions from their employer. In the current COVID-19 context, a key concern for employers is whether it is lawful and reasonable to issue directions related to safety matters arising from the pandemic.

In measuring the reasonableness of a direction, the Fair Work Commission (FWC) has demonstrated its regard to the particular circumstances of the case in the recent decision of Watson v National Jet…

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Added by Shane Koelmeyer on December 22, 2021 at 7:39 — No Comments

Talk before you walk: Lack of consultation rendered mandatory vaccination requirement unreasonable

Consultation with employees always plays an important part when introducing changes in the workplace. Under work health and safety (WHS) legislation, employers have a duty to consult with their workers as far as reasonably practicable in relation to health and safety matters.

In Construction, Forestry, Maritime, Mining and Energy Union & Anor v Mt Arthur Coal Pty Ltd T/A Mt Arthur [2021] FWCFB 6059, the Full Bench of the Fair Work Commission…

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Added by Shane Koelmeyer on December 22, 2021 at 7:35 — No Comments

An offer you can refuse: Offers of alternative employment in redundancy cases

In most cases of redundancy, employers have an obligation to consult with affected employees about the proposed redundancy and consider whether or not anything can be done to mitigate or minimise the impact on the employee, such as redeployment or obtaining other acceptable employment for the employee. 

The terms “redeployment” and “obtain other acceptable employment” are often used interchangeably but derive from different sources within the Fair Work Act 2009 (FW…

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Added by Shane Koelmeyer on December 9, 2021 at 9:25 — No Comments

Time goes by so slowly: FWC finds that employee’s employment ended at end of fixed term and was not dismissed

Access to the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act) is on the basis that the employee is “dismissed” from the employment. A jurisdictional objectional can be raised if the employee has not been actually dismissed by the employer.

Subsection 386(2)(a) of the FW Act provides that an employee who was employed for a specified period of time, specified task or for the duration of a specified season and where that employment was…

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Added by Shane Koelmeyer on December 9, 2021 at 9:25 — No Comments

Compliance is a must: Employer and director ordered to pay penalties for failure to comply with compliance notice

The Fair Work Ombudsman (FWO) regularly engages in enforcement action for contraventions of the Fair Work Act 2009 (Cth) (FW Act). Such enforcement action includes issuing infringement and compliance notices, entering into enforceable undertakings or commencing litigation against companies and others involved in contraventions.

In the Fair Work Ombudsman and Registered Organisations Commission Entity Annual Report 2020-21 (the…

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Added by Shane Koelmeyer on November 17, 2021 at 17:13 — No Comments

No way, know how: What is the difference between confidential information and “know-how”?

During the course of the employment relationship, employees will inevitably gain knowledge or be exposed to information about the employer’s business that is considered confidential to its operations and which the employer does not want to be put out into the public domain.

It is for this reason that many employment contracts, particular for senior employees who have more exposure to such information, will contain clauses that aim to protect the employer’s confidential information and…

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Added by Shane Koelmeyer on November 17, 2021 at 17:13 — No Comments

Under suspicion: Commission finds employer’s suspicion of an employee’s misconduct was not a valid reason for dismissal

If considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing. It may be first necessary to conduct an investigation in order to ascertain whether an allegation of misconduct can be substantiated before commencing disciplinary action.  

Termination of an employee’s employment on the mere suspicion of misconduct rather than any actual misconduct is likely to…

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Added by Shane Koelmeyer on November 17, 2021 at 17:12 — No Comments

Let’s get flexible: Employer acted “entirely reasonably” when terminating employee who worked flexible hours

It is not uncommon for employers and employees to agree to flexible working hours, particularly in circumstances where the employee has family or other caring responsibilities. Such arrangements are best recorded in writing, setting out clear expectations of the employee.

In Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994, the Fair Work Commission (FWC) was recently required to consider an unfair dismissal application of an employee who was dismissed…

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Added by Shane Koelmeyer on November 3, 2021 at 10:11 — No Comments

You’ve got mail! Commission finds termination letter sent to inactive email address was not notification of dismissal

Given the serious nature of matters such as dismissals, employers should, as far as reasonably practicable, communicate such matters in person to ensure that there is no confusion about when the employee was made aware of any issues with their employment.

Understandably this may not always be possible, particularly in the COVID-19 context. Employers should therefore regularly ensure that alternative contact details for employees are up-to-date. Failure to do so can lead to…

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Added by Shane Koelmeyer on November 3, 2021 at 10:08 — No Comments

Age is just a number: Labour hire company and placement company penalised for discriminating against prospective employee

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) are wide-ranging in the sense that they provide protections to, and prohibit adverse action by, persons and entities beyond an employee and an employer.

The provisions also relate to conduct by or directed at prospective employees and employers, existing or prospective independent contractors as well as industrial associations and officers or members of industrial…

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Added by Shane Koelmeyer on November 3, 2021 at 9:58 — No Comments

Red light, green light: Dismissals for temporary illnesses under the FW Act

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury. Specifically, section 352 of the FW Act prohibits employers from dismissing an employee within the first three months of any absence from work due to an illness or injury.

The purpose of this protection is to recognise the inevitability that an employee might require time off…

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Added by Shane Koelmeyer on October 20, 2021 at 11:00 — No Comments

Words flying high: Commission critical of employer’s entirely email-based disciplinary process

Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.

It is important that when conducting a disciplinary process, employers ensure that they make a proportionate and genuine attempt to communicate with the employee on their alleged conduct.

In the recent decision of Mr Roger Woods v LifeFlight Australia…

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Added by Shane Koelmeyer on October 20, 2021 at 10:30 — No Comments

Not a “one and done” thing: The importance of WHS refresher training

It is an expected and necessary part of work health and safety (WHS) plans that all new workers receive relevant WHS training. A recent decision in the NSW District Court (the Court) has highlighted the need for employers to also re-induct or provide refresher training to workers when they are transferred to a different department or location.

In SafeWork NSW v Crawfords Freightlines Pty Ltd [2021] NSWDC 442, Crawfords Freightlines Pty Ltd…

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Added by Shane Koelmeyer on September 23, 2021 at 12:51 — No Comments

Procedurally disastrous: Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to the investigation. This is to ensure that the employee is afforded proper procedural fairness.

The purpose of an investigation into allegations of misconduct is to determine whether or not the misconduct has actually taken place and can be put to the employee as part of a disciplinary process. During the…

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Added by Shane Koelmeyer on September 23, 2021 at 12:43 — No Comments

News update: Casual terms award review 2021

In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).

As part of the amendments, the Fair Work Commission (the FWC) was required to undertake a review of casual terms in modern awards and their interaction with the casual employee amendments…

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Added by Shane Koelmeyer on September 15, 2021 at 15:30 — No Comments

News update: Changes to the Fair Work Act and Sex Discrimination Act to commence shortly

On 2 September 2021, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).

The Bill implements a number of recommendations made by the Australian Human Rights Commission (AHRC) following a national inquiry into sexual harassment in Australian workplaces. The Bill will amend the Fair Work Act 2009 (Cth) (FW Act) as well as the Sex Discrimination Act…

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Added by Shane Koelmeyer on September 15, 2021 at 15:30 — No Comments

Full force denied: Commission rejects constructive dismissal claim after finding performance review process did not force employee to resign

For an employee to access the unfair dismissal jurisdiction, they must be “dismissed” from their employment by the employer. In some instances, a resignation can be a “dismissal”, when an employee is forced to resign due to the employer’s conduct. This is referred to as a “constructive dismissal”. 

In the recent decision of Burgess v Optus Administration Pty Ltd T/A Optus [2021] FWC 4459, the Fair Work…

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Added by Shane Koelmeyer on September 9, 2021 at 17:46 — No Comments

A slippery slope: WHS rights and adverse action

Under the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), employers are prohibited from taking adverse action against an employee (such as dismissing them from employment) because they have a workplace right or because they have exercised or chosen not to exercise that right.

Workplace rights can be any of the following:

  • a benefit, role or responsibility which is provided under a workplace law or instrument;
  • the…
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Added by Shane Koelmeyer on August 16, 2021 at 12:51 — No Comments

Privileged: FWC rejects Applicants’ claim to access investigation documents

The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) (FW Act) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the FWC (such as all documents or records relating to a dismissal process).

These types of orders will often require…

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Added by Shane Koelmeyer on August 16, 2021 at 12:30 — No Comments

Hit the brakes: Commission finds on-the-job feedback sufficient in warning employee about poor performance

In the unfair dismissal jurisdiction, the Fair Work Commission (FWC) is required to consider a number of factors under the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.

One such factor is, if the dismissal is related to unsatisfactory performance of an employee, whether or not that employee was warned about their unsatisfactory performance before the dismissal.

In the recent…

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Added by Shane Koelmeyer on August 5, 2021 at 11:45 — No Comments

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