Shane Koelmeyer's Blog (287)

It’s all about me: Employer reasonable in not accommodating employee’s variation of hours request

One of the logistical challenges often faced by employers is the management of rosters and employee working hours. There are a number of factors to take into consideration when it comes to this, such as an employee’s availability, changing circumstances and the particular needs of the business.

It can be difficult for employers to balance these interests but a recent decision of the Fair Work Commission (FWC) has shown support for employers who make reasonable…

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Added by Shane Koelmeyer on September 21, 2018 at 15:42 — No Comments

It wasn’t me: Fair Work Commissioner considers Facebook posts as evidence in an unfair dismissal matter

Employees active on social media (such as Facebook) fail to consider who might be able to see their personal online posts at any given time. The consequences can be significant – particularly in an employment context.

It is becoming increasingly common for employers to review their employees’ social media presence at various stages of the employment relationship, particularly when claims are made against the employer by an employee or former employee.  So, what happens when an…

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Added by Shane Koelmeyer on September 21, 2018 at 15:40 — No Comments

Notice me! Notice of termination and the common law

It is often said that the essence of the employment relationship is the work/wages bargain – where an employer directs an employee to complete certain work in exchange for wages.  However, the reality of the employment relationship is much more complex.

To manage these complexities, most employers attempt to cement the terms of the employment relationship in a single, written document – the employment contract.

Of course, the employment contract reflects the fundamental…

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Added by Shane Koelmeyer on September 21, 2018 at 15:36 — No Comments

No shirt, no service: Fair Work Commission orders the suspension of protected industrial action involving a uniform ban

Under the Fair Work Act 2009 (Cth) (FW Act), employees are entitled to take protected industrial action in circumstances where they are bargaining for a new enterprise agreement.

The action can take many forms – from striking and “go slows”, to changes in the clothes that employees wear.

In circumstances where that statement, impact or disruption has the potential to pose a threat to the life, health, safety or welfare of others, the Fair Work…

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Added by Shane Koelmeyer on September 14, 2018 at 12:35 — No Comments

WHS and Sport: College accepts responsibility for death of football player from heatstroke

With the summer sports season approaching, the tragic death of a 19 year old college football player in the USA serves as a reminder to sporting organisations at all levels about the duty of care owed to their players.

In May 2018, the first year college football player with the University of Maryland collapsed during a team training exercise which required players to perform sprint tests. The player suffered a seizure and was later admitted into hospital suffering from heatstroke and…

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Added by Shane Koelmeyer on September 14, 2018 at 12:32 — No Comments

Paw patrol: Employer considerations for pet-friendly workplaces

There has been an increasing trend in recent years for employers to implement pet-friendly workplaces in an effort to boost employee morale and productivity. The basis of the concept is that pets are widely understood to have the effect of improving an individual’s mood and reducing levels of stress and anxiety – sentiments that are invaluable in a workplace (particularly high-intensity work environments).

Pet-friendly workplaces can take various forms such as allowing employees to…

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Added by Shane Koelmeyer on September 14, 2018 at 12:24 — No Comments

A Moving Experience: What to expect and what to consider when relocating

In Part 1 of this blog, we looked at a number of commonly overlooked, but important, consideration for employers in the relocation process.

In this Part 2, we turn to the types of employment issues employers can expect to face during the process.

Relocation redundancy

The possibility of relocation redundancy generally arises if an employee’s contract of employment links their position directly to a location. If the work in that location no…

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Added by Shane Koelmeyer on September 14, 2018 at 12:13 — No Comments

PCBU fined $375,000 following death of turf stacker

In yet another decision resulting from a tragic workplace safety incident, an employer has been fined $375,000 after one of its workers was fatally crushed by a turf harvester being driven by a co-worker.

In SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191, the Court heard that, at the time of the incident, Turfco had in place a ‘hop-off’ system used by its workers that was contrary to its own operator’s manual.

Turfco is engaged in the growing, harvesting and…

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Added by Shane Koelmeyer on August 17, 2018 at 16:28 — No Comments

Deficient work practices resulted in ladder fall death

In SafeWork NSW v Li [2018] NSWDC 189 the NSW District Court convicted a person conducting a business or undertaking (PCBU) of failing to comply with a health and safety duty after a worker died following a fall from a ladder as a result of a poor system of work.

Mr Li, who traded as Apple Electronic Security, operated a business that involved installing security systems. In June 2016, Mr Li was engaged by a smash repair business to install seven security…

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Added by Shane Koelmeyer on August 17, 2018 at 16:25 — No Comments

A moving experience – what to expect and what to consider when relocating Part 1

Down-sizing, upgrading, outgrowing and restructuring – change in the life-cycle of a business is inevitable and changes in size and operational needs often demand a relocation.

Relocating a business is a huge logistical challenge in itself and as a result, it’s not uncommon for the employment and HR aspects of a relocation to become secondary considerations.

In this two-part blog, we outline some of those key considerations and touch on a few issues that HR, managers and…

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Added by Shane Koelmeyer on August 17, 2018 at 16:21 — No Comments

Are you ready (willing and able) for it? When employees are unable to perform their contractual duties

One of the fundamental principles of the employment relationship is the work-wages bargain – an employer pays an employee wages in exchange for work performed. The work-wages bargain assumes that employees are ready, willing and able to perform the work requested of them by the employer. This assumption is challenged when an employee is unable to perform the required work because of some limitation such as the loss (or suspension) of an essential qualification such as a driver’s…

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Added by Shane Koelmeyer on August 13, 2018 at 10:47 — No Comments

Flight of fancy – flight attendant’s claim that excessive drinking was not his fault rejected by FWC in unfair dismissal case

In Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436 the Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

The flight attendant was scheduled to operate a seven-day flight pattern of Brisbane-Los Angeles-New York-Los Angeles-Brisbane.

After arriving in New York, the flight attendant visited a bar with another employee. The…

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Added by Shane Koelmeyer on August 13, 2018 at 10:46 — No Comments

Cecchin in on your employees: Managing mental health in the workplace

The recent decision by one of the National Rugby League’s (NRL’s) leading referees to retire at the end of the 2018 season has (again) prompted discussion about the obligations of employers when managing mental health in the workplace.

For some time now, Matt Cecchin has bravely spoken publicly about the extreme pressures of his job and their effect on his mental health. To summarise, in 2017, Cecchin revealed that he had almost feigned an injury because he felt too…

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Added by Shane Koelmeyer on August 13, 2018 at 10:40 — No Comments

The fine cut: Small Business Employers and Anti-Discrimination Legislation

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.

Small businesses are also subject to anti-discrimination legislation which prohibits direct and indirect discrimination on the basis of a protected attribute. Australia’s federal anti-discrimination legislation prevents discrimination on the basis…

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Added by Shane Koelmeyer on August 6, 2018 at 9:43 — No Comments

And a Step to the Right – Coles loses appeal of $1 million claim for safety step injury

The ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages after she injured her right hip in a fall after stepping sideways down from a safety step (Coles Supermarkets Australia Pty Ltd v Harris [2018] ACTCA 25).

The employee claimed that she was not trained in the proper use of the safety step and was not told by Coles that she should step backwards down from…

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Added by Shane Koelmeyer on August 6, 2018 at 9:41 — No Comments

Size doesn’t matter – Dismissed employee compensated despite vulgar language

A small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation, despite the Fair Work Commission (FWC) finding the dismissed employee had used language “so grossly vulgar” that it would have been sufficient grounds for his summary dismissal.

In Trialonas v Steric Solutions Pty Ltd [2018] FWC 3996, the FWC was required to consider the summary dismissal of a yard hand who had been employed with Steric…

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Added by Shane Koelmeyer on August 6, 2018 at 9:39 — No Comments

The truth Hertz: Vehicle services attendant dismissed for lying on his CV

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes. Whilst it is good practice for employers to double-check a job candidate’s qualifications and experience prior to making an offer of employment, the reality is that information provided in a curriculum vitae or an interview will be relied upon by an employer when considering who to recruit.

For employers, the consequences…

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Added by Shane Koelmeyer on July 16, 2018 at 9:16 — No Comments

Checking it twice: the importance of pre-employment and reference checking in recruitment

The applications have closed, the interviews are conducted and you think you have your ideal candidate– but HR tells you that you cannot make an offer until pre-employment and reference checking is conducted.

For some, pre-employment and reference checking may be considered a needless step which creates additional administrative burden – particularly when an employer has their candidate ready and able to start. However, conducting pre-employment and reference checks may turn out to be…

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Added by Shane Koelmeyer on July 16, 2018 at 9:15 — No Comments

You say it best when you say nothing at all – The risks of providing unfavourable or false references

Providing references to prospective new employers about employees can be a tricky business. There are range of important considerations for those delivering references to take into account and often conflicting interests can creep into the equation.

Common concerns include:

  • The risks of providing an unfavourable reference;
  • The risks of giving an exaggeratedly favourable reference;
  • How much information to give away;
  • The impulses of managers to…
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Added by Shane Koelmeyer on July 16, 2018 at 9:12 — No Comments

Yes, yes, no: FWC rejects employee’s bid to reopen unfair dismissal claim after parties fail to sign terms

One of the first steps that the Fair Work Commission (FWC) takes when dealing with unfair dismissal claims is to require the parties to participate in a conciliation.

The purpose of a conciliation is to help the parties resolve the matter without the need go to a full hearing before a FWC member. In its most recent quarterly report on unfair dismissal applications, the FWC reported that about 59% of unfair dismissal claims were settled at…

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Added by Shane Koelmeyer on July 9, 2018 at 10:19 — No Comments

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