Shane Koelmeyer's Blog (467)

Supreme failure: Court finds HR manager accessorily liable for adverse action claim

The Fair Work Act 2009 (Cth) (FW Act) contains provisions which make it possible for individuals to be found accessorily liable for their involvement in a contravention of a workplace law. In particular, section 550 of the FW Act provides that a person “involved in” a contravention will be taken to have contravened that provision themselves.

It is for this reason that individuals who are most often involved in managing employee relations, such as directors,…

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Added by Shane Koelmeyer on July 6, 2022 at 8:00 — No Comments

No vacancy: making offers of casual conversion

Division 4A of Part 2-2 of the Fair Work Act 2009 (Cth) (FW Act), which came into operation on 27 March 2021, imposes an obligation on employers of casual employees to make offers of conversion to permanent employment in certain circumstances.

Specifically, employers are required to offer casual employees conversion to permanent employment if:

  • the employee has been employed by the employer for a period of twelve months; and
  • during at…
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Added by Shane Koelmeyer on July 6, 2022 at 8:00 — No Comments

No show cause: Employer’s lack of procedural fairness rendered the dismissal of his employee harsh

Under the Fair Work Act 2009 (Cth) (FW Act), whether an employee’s dismissal was procedurally fair is a key factor in determining whether the dismissal was unfair. Procedural fairness requires an employee be given an opportunity to respond to or explain an allegation put to them by their employer. The employer must consider that response or explanation before deciding the disciplinary penalty – eg: a warning, or termination of employment.

In Bostock v…

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Added by Shane Koelmeyer on July 6, 2022 at 8:00 — No Comments

Bad publicity: PCBU ordered to publicise work health and safety conviction

When setting a penalty for breaches of work health and safety (WHS) obligations, the Courts will look at the need for specific deterrence against the offender and also the need for general deterrence for employers and the particular industry.  

In SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163 the NSW District Court utilised its powers to impose an adverse publicity order against a business who was found guilty of failing to comply with…

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Added by Shane Koelmeyer on June 30, 2022 at 9:00 — No Comments

The deregistered accessory: Court confirms small claim proceedings extends to matters involving accessorial liability

Under the Fair Work Act 2009 (Cth) (FW Act), the Federal Circuit and Family Court of Australia (Division 2) (the Court) is able to determine certain underpayment disputes as “small claims proceedings”.

The informal nature of small claims proceedings means that orders made typically only require an employer to rectify underpayments up to the value of $20,000.

However, in a recent interlocutory decision within a small claims proceeding,…

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Added by Shane Koelmeyer on June 30, 2022 at 9:00 — No Comments

A bone to pick: Assessing the “reasonableness” of additional hours

Under the Fair Work Act 2009 (Cth) (the FW Act), employers are prohibited from requesting or requiring full-time employees to work more than 38 hours per week, unless those additional hours are reasonable.

When considering the reasonableness of additional hours, section 62(3) of the FW Act provides a list of factors which are to be taken into account, such as whether there would be a risk to the employee’s health and safety, the employee’s personal…

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Added by Shane Koelmeyer on June 28, 2022 at 13:44 — No Comments

Under examination: Employee dismissed for refusing a medical assessment, not for complaining about it

Medical examinations are often used by employers to assess the fitness and capacity of employees, particularly when the employee is returning to work after a non-work-related injury. Issues may arise when employees refuse to attend medical examinations.

In Sidhu v Aldi Stores (A Limited Partnership) [2022] FedCFamC2G 239, the Federal Circuit and Family Court of Australia (the Court) found that adverse action was not taken against an employee because he…

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Added by Shane Koelmeyer on June 28, 2022 at 13:30 — No Comments

The HomeWork debate: Managing returns to the workplace in the post-COVID-19 environment

In the post COVID-19 environment, one of the most common issues faced by employers is facilitating the return of employees to the office or normal workplace. In particular, many employers have been required to deal with increased reluctance by employees to return to the workplace following lengthy periods of working from home.

One of the things that an employer can (and should) do to minimise disputes about work locations is to make it clear from the outset of the employment…

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Added by Shane Koelmeyer on June 28, 2022 at 13:30 — No Comments

Organic panic: Employer dismisses long standing employee for breaching drug policy

Although circumstances may be unique to each case, generally, workplace policies will provide employers with grounds for termination when a significant breach has occurred.

In Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406, the Fair Work Commission (FWC) upheld the dismissal of a long serving employee who breached the Alcohol and Other Drug Policy (AOD Policy) by testing positive to THC during work hours.

The employee had…

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Added by Shane Koelmeyer on June 27, 2022 at 18:00 — No Comments

Bullying tactics: bullying allegations used as a tactic to direct attention away from an employee’s misconduct

It is not uncommon for employees to raise allegations against Employers in order to divert attention away from, or attempt to excuse their own misconduct.

In Trika v Home@Scope Pty Ltd [2022] FWC 749, the Fair Work Commission (FWC) has defended an Employer’s decision to dismiss an employee after he left his overnight shift early without authorisation.

The Employer managed and operated independent supported living facilities for disabled clients. The…

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Added by Shane Koelmeyer on May 25, 2022 at 10:30 — No Comments

The tough conversation: an employer’s reminder to employee fails to count as a performance warning

There are often misconceptions about how many times an employee must be warned regarding their poor performance before they are able to be dismissed. Although there is no legislative requirement stipulating the number of warnings required, the Fair Work Act 2009 (Cth) (FW Act) provides that an employee must be warned about their unsatisfactory performance before they are dismissed for that reason.   

In McCallum v Everstone Pty Ltd [2022] FWC 782,…

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Added by Shane Koelmeyer on May 25, 2022 at 10:30 — No Comments

Step back: Employer fails to disprove adverse action claim

A recent decision of the Federal Circuit and Family Court of Australia (the Court) has reaffirmed the standard of proof that is required to disprove allegations of unlawful adverse action under the Fair Work Act 2009 (Cth) (FW Act).

Section 361 of the FW Act states, where an allegation of unlawful adverse action is made, it will be presumed that the action was, or is being, taken for the unlawful reason, unless the person proves…

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Added by Shane Koelmeyer on May 18, 2022 at 15:30 — No Comments

Sham slam: Commission applies test confirmed by High Court in distinguishing between employee and contractor

In a recent decision, the Fair Work Commission (FWC) has applied the test recently confirmed by the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (the High Court Decisions), in distinguishing between employees and contractors.

The High Court Decisions confirmed that the distinction must be made by reference to the rights and obligations of the…

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Added by Shane Koelmeyer on May 18, 2022 at 15:30 — No Comments

Down but not out: Full Bench looks at meaning of dismissed for the purposes of the unfair dismissal jurisdiction

The question of whether a demotion will constitute a dismissal under the Fair Work Act 2009 (Cth) (FW Act) was considered by the Full Bench of the Fair Work Commission (Full Bench) NSW Trains v James [2022] FWCFB 55.

The matter was referred to a Full Bench on appeal from the first instance decision of Deputy President Saunders in James v NSW Trains [2021] FWC 4733 (First Instance Decision) who found that the…

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Added by Shane Koelmeyer on May 18, 2022 at 15:30 — No Comments

Canteen Crasher: FWC warns against employer’s “concerning” performance management in stop-bullying application

The stop-bullying provisions of the Fair Work Act 2009 (Cth) (FW Act) provide a mechanism for the Fair Work Commission (FWC) to impose orders upon employers (as well as individual employees) which are aimed at stopping bullying behaviour in the workplace.

In applications for orders to stop bullying, the conduct of an employer will not constitute bullying under section 789D of the FW Act if it can be shown that the particular conduct was…

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Added by Shane Koelmeyer on May 11, 2022 at 8:30 — No Comments

Employer ordered to pay $150,000 in damages for sexual harassment by an employee

In a recent decision of the Victorian Civil and Administrative Tribunal (VCAT), an employer has been ordered to pay $150,000 in general damages to a former employee for failing to take reasonable precautions to prevent her from being sexually harassed in the workplace.

In Oliver v Bassari (Human Rights) [2022] VCAT 329, an employee was found to have contravened section 93 of the Equal Opportunity Act 2010 (Vic) (EO Act) by sexually…

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Added by Shane Koelmeyer on May 11, 2022 at 8:30 — No Comments

Up, up and away: Commission finds employee’s conduct of upward bullying towards manager warranted disciplinary action

Workplace bullying occurs when a person (or a group of people) repeatedly behaves unreasonably towards another worker (or group of workers) and that behaviour creates a risk to the worker’s (or group of workers’) health and safety.

Bullying is commonly seen to occur either between peers or in a “downward” sense, where a person is bullied by another worker who holds a higher position. However, bullying can also occur “upwards”, where a manager or other person in a senior position is…

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Added by Shane Koelmeyer on April 13, 2022 at 14:00 — No Comments

Company car comes at a cost: Company supplied vehicle pushed employee over the high-income threshold

Employees are often provided with benefits by their employer in addition to their normal salaries or wages. It is often when an unfair dismissal application is made that a dispute arises as to the value to be attributed to a benefit for the purposes of calculating whether an employee’s earnings are above the high-income threshold.  

In Johnson v Benex Civil Pty Ltd [2022] FWC 338 the Fair Work Commission (FWC) dismissed an employee’s unfair dismissal…

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Added by Shane Koelmeyer on April 13, 2022 at 14:00 — No Comments

Nothing good comes after Sundowner: Commission finds employee’s out-of-hours conduct at social gathering to be a valid reason for dismissal

The physical return-to-work happening at many workplaces will also see the return of work-related events in an effort to reacquaint employees after a string of lockdowns and stay at home orders.

The Fair Work Commission (FWC) recently set out the standard of appropriate workplace conduct at  work-related events, especially when the employer has allowed for the provision of alcohol or where the event rolls into an unofficial gathering .

In Keron v Westpac…

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Added by Shane Koelmeyer on April 6, 2022 at 16:38 — No Comments

An unwanted footprint: FWC highlights the importance of a social media policy to safeguard employers’ reputations

Employees have a duty to ensure that their out of hours conduct (including social media posts) is not contrary to the obligations they owe to their employer. Further employees should also ensure that out of hours conduct is not in breach of workplace policies or damaging to the reputation of their employer.

In Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288, the Fair Work Commission (FWC) dismissed an employee’s…

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Added by Shane Koelmeyer on April 6, 2022 at 16:37 — No Comments

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