Shane Koelmeyer's Blog (352)

Preferential treatment: FWC finds employee was dismissed due to employer’s racial preference

An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.



In Ayton v You Come Pty Ltd t/a Foodworks Ashmont [2019] FWC 6585, a long term casual employee at a supermarket claimed that she was unfairly dismissed after she received a text message from her employer which stated “I decide…

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Added by Shane Koelmeyer on November 19, 2019 at 13:05 — No Comments

Soft(ware) skills: The importance of effectively understanding and communicating performance issues

Performance management is a challenging process, which can be further complicated when employees are working remotely.



Of course, improvements in technology have eliminated some accessibility issues but the physical distance can mean that what would ordinarily be a quick question for a colleague in the office can turn into a drawn-out series of emails or delays in order to find a time when everyone is free to join a Skype meeting.



Despite the challenges, the obligations on…

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Added by Shane Koelmeyer on November 13, 2019 at 14:45 — No Comments

Quite, please: Commission orders parties to stop yelling in the workplace

The Fair Work Commission (FWC) recently issued interim orders in an application for orders to stop bullying, which required the parties to, amongst other things, treat each other with respect and dignity, and to not yell in an unreasonable manner (see F.G. [2019] FWC 6283).



The stop-bullying application had been lodged by an employee of a retail services business who alleged that he was being bullied by a co-director and owner of the business. The…

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Added by Shane Koelmeyer on November 13, 2019 at 14:20 — No Comments

Questions of capacity: FWC endorsed employer’s approach to management of injured employee

The Fair Work Commission (FWC) has endorsed the approach of a HR team in their management of an injured worker and the subsequent termination of her employment resulting from her incapacity to perform the inherent requirements of her role (Jack v Sigma Healthcare T/A Sigma Healthcare [2019] FWC 6364).



The employee was a storeperson working in a pharmaceuticals warehouse. In October 2017, she was injured in a non-work-related car accident and was totally…

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Added by Shane Koelmeyer on November 13, 2019 at 14:05 — No Comments

Who's with me? Sports agency sues former employees for poaching clients

A recent dispute between one of Australia’s leading sports agencies and two of it’s ex-employees is a reminder to employers about the importance of implementing processes to protect confidential information, including that of their customers and clients.

Ultra Management Sports, an agency that represents many elite rugby league and rugby union players, commenced proceedings in the Federal Court of Australia, claiming that two of it’s player agents amended player/agent contracts…

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Added by Shane Koelmeyer on November 13, 2019 at 14:00 — No Comments

Destructive criticism: Lawyer dismissed for publicly criticising clients

When considering claims of adverse action under the Fair Work Act 2009 (Cth) (the FW Act) a key focus of inquiry is the actual reasons of the decision-maker for engaging in the action.

The Federal Court of Australia recently considered this point in determining whether a major law firm engaged in adverse action in contravention of the FW Act when it dismissed a lawyer who had publicly criticised the law firm’s clients, being two Commonwealth Government…

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Added by Shane Koelmeyer on October 9, 2019 at 10:48 — No Comments

Please, please, please, let me get what I want: Employer’s refusal of flexible working arrangement was not a dismissal

One of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act) is the entitlement for employees in particular circumstances to request a flexible working arrangement with their employer. Such requests can only be refused by employers on reasonable business grounds.

An employer’s refusal of a flexible working arrangement request was recently considered by the Fair Work Commission (the FWC) in Phillips v…

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Added by Shane Koelmeyer on October 9, 2019 at 10:44 — No Comments

One for my baby, and one more for the road: Drive through bottle shop attendant dismissed because of pregnancy

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant (Leutton v Sheralee Hotels Pty Ltd Trading As Imperial Tavern & Ors [2019] FCCA 2471).

The employee was working in the drive through bottle shop of a tavern when she was informed by her doctor that, because of her pregnancy, she should not lift more than 5kg.

Following her visit to her doctor, the employee attended a meeting with the…

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Added by Shane Koelmeyer on October 9, 2019 at 10:00 — No Comments

Workers rode scaffolding to the ground: Employer convicted and fined for WHS breach

A NSW scaffolding business has been convicted and fined after it pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) (SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442).



The Sydney-based scaffolding business pleaded guilty to failing to comply with its primary duty under s19 of the WHS Act, when it exposed workers to a risk of death or serious injury.



The incident that resulted…

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Added by Shane Koelmeyer on September 24, 2019 at 16:30 — No Comments

Only time will tell: Full Court decides meaning of “day” for personal/carer’s leave

The Full Court of the Federal Court of Australia recently handed down a decision (Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 (Mondelez)) that is likely to have significant impacts on the accrual and taking of personal/carer’s leave, not to mention the management of the entitlement by employers.



Personal/carer’s leave…

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Added by Shane Koelmeyer on September 4, 2019 at 13:30 — No Comments

A little less conversational swearing: Casual swearing no excuse for conduct

There is no doubt that swearing in the workplace is unacceptable – the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal. 



Often employees seek to justify their use of coarse language by claiming that there is a culture of swearing in their particular workplace. Earlier this year, in Pridham and Rose v Viterra Operations Pty Ltd T/A Viterra [2019] FWC 1018,…

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Added by Shane Koelmeyer on September 4, 2019 at 12:55 — No Comments

Just Managing: Workplace bullying and reasonable management action

Workplace bullying can be extremely serious and should not be tolerated by employers.



Across Australia, employers are required to provide employees with a safe and healthy work environment, and genuine workplace bullying can put the health and safety of employees at risk. The anti-bullying jurisdiction of the Fair Work Commission (FWC) created by the Fair Work Act 2009 (Cth) (FW Act) is directed towards remedying real cases of workplace…

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Added by Shane Koelmeyer on September 4, 2019 at 12:35 — No Comments

Group Effort: How a region banded together to improve employment standards

No employer operates in a silo – all employers operate in complex systems of interrelated stakeholders including employees, customers, other businesses, and regulators who enforce the laws that apply to the employer and their business.



The actions of employers, therefore, have consequences for those stakeholders. Even decisions that on the surface appear only to concern two parties – the employer and the employee – can have ripple effects on the others.



For example, the…

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Added by Shane Koelmeyer on August 22, 2019 at 12:00 — No Comments

Fool me once, sham on you: FWC refers employer to FWO over sham contracting

The rapid rise of concepts such as the gig economy has seen a significant shift in our understanding of the differences between independent contractors and employees. The distinction between the two is now more complex and can be difficult to discern, but regulatory bodies have made it clear that they will not tolerate the intentional mischaracterisation of employment relationships as a means of depriving genuine employees of their entitlements.



There have been numerous cases in…

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Added by Shane Koelmeyer on August 22, 2019 at 11:30 — No Comments

Brace yourself for consequences: Dentist penalised for non-compliance and personally ordered to rectify underpayments

The Fair Work Ombudsman (FWO) is responsible for ensuring compliance with workplace laws. It does this by investigating and taking enforcement action against suspected breaches of the Fair Work Act 2009 (Cth) (FW Act).



Under the FW Act, one of the enforcement powers of the FWO is to issue a compliance notice requiring the employer to address contraventions of the FW Act. Failing to comply with this compliance notice has serious consequences…

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Added by Shane Koelmeyer on August 22, 2019 at 11:29 — No Comments

The Pelican Brief: FWC reinstates pelican feeder to job ‘as rare as hen’s teeth’

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness (Matthews v San Remo Fisherman’s Co Operative [2019] FWC 4877).



Prior to his dismissal, the employee had been employed by San Remo Fisherman’s Co Operative (the Co-Op) as a pelican…

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Added by Shane Koelmeyer on August 5, 2019 at 17:30 — No Comments

Court Bags a Bully - Worker convicted for bullying behaviour

Work health and safety legislation aims to provide protections for workers and other persons by eliminating or minimising risks to health and safety. In addition to the primary duty of care imposed on businesses, the work health and safety legislation also imposes a duty on workers.



The duty owed by workers is separate to that owed by the business and workers can therefore be individually prosecuted for failing to comply with their duty – as recently occurred in a case in NSW…

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Added by Shane Koelmeyer on August 5, 2019 at 17:30 — No Comments

Being genuine: Unfair dismissal, genuine redundancy and the redistribution of duties

Discussions with employees about restructures and redundancies are difficult and emotions often run high. Unfortunately, these things are a natural part of operating a business and can be the result of a range of factors from the introduction of new technology to the workplace, to a downturn in business.



With emotions running high, explanations about why a redundancy has occurred and what has happened to an employee’s job can sometimes get lost or confused. This is particularly so…

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Added by Shane Koelmeyer on July 22, 2019 at 12:54 — No Comments

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