Shane Koelmeyer's Blog (408)

Shots fired – Vaccinations and the workplace

One of the most topical questions for employers during the COVID-19 pandemic has been whether they need to introduce policies that mandate vaccinations and, if so, what can be done to enforce them in the workplace.

As with any other policy or procedure, employers need to assess whether it would be reasonable and lawful to require that their employees comply with a policy that mandates vaccinations. What is reasonable will differ for each employer and even between different positions…


Added by Shane Koelmeyer on May 5, 2021 at 13:30 — No Comments

Knives Out: Employer ordered to pay maximum compensation following “entirely unjust” disciplinary process

The Fair Work Act 2009 (Cth) (FW Act) requires that employers comply with a number of procedural elements in a disciplinary process prior to making a decision about whether an employee’s conduct or behaviour warrants disciplinary action.

One of the most important elements is providing the employee an opportunity to respond to allegations of misconduct before the final decision is made.

In the recent decision of Robertson v Imperial Mushrooms Pty…


Added by Shane Koelmeyer on May 5, 2021 at 13:29 — 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 and particularly in this current COVID-19 climate.

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…


Added by Shane Koelmeyer on April 21, 2021 at 10:30 — No Comments

Doctor Who? FWC issues cautionary warning about medical certificates

Medical certificates and reports from medical practitioners play an important role in the employment relationship.

Employers rely on the opinions of medical practitioners for assurance that employees are medically fit for their role and they are not being required to perform tasks that might put their health and safety at risk.

Such documents are also used to provide legitimate evidence that an employee who takes personal (sick) leave is, in fact, not fit for work because of an…


Added by Shane Koelmeyer on March 17, 2021 at 8:34 — No Comments

Pick up the phone: Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

The COVID-19 pandemic has had an unprecedented effect on Australian businesses.Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

During the pandemic, many employers have been forced to implement redundancies as a means of trying to survive. Reduced employment opportunities have also resulted in greater scrutiny being placed on employers to ensure that the…


Added by Shane Koelmeyer on March 17, 2021 at 8:33 — No Comments

Garbage in, garbage out: Employee fails in bid to have safety-related dismissal found to be unfair

A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable. However,these concepts are distinct and will be considered separately when determining whether a dismissal was unfair.

A recent decision Hamlin v City of Sydney Council[2021] NSWIRComm 1010, the NSW Industrial Relations Commission…


Added by Shane Koelmeyer on March 17, 2021 at 8:32 — No Comments

The rooster and the sunrise: Court finds rescinded job offer was not age discrimination

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).

One of the attributes that is protected by such legislation is a person’s age – meaning that it is unlawful for a person, including an employer or prospective employer, to engage  in any action that would disadvantage…


Added by Shane Koelmeyer on March 2, 2021 at 12:01 — No Comments

Host with the most: Full Bench quashes order to reinstate labour hire employee to host employer

In the unfair dismissal jurisdiction, where it is found by the Fair Work Commission (FWC) that an employee has been unfairly dismissed, the primary remedy under the Fair Work Act 2009 (Cth) (FW Act) is for the employee to be reinstated to the position they held immediately prior to their dismissal or another position on no less favourable terms. Reinstatement can be with or without an order to maintain continuity of employment and to restore lost…


Added by Shane Koelmeyer on March 2, 2021 at 11:57 — No Comments

Celebrity Search: FWC upholds dismissal of an employee who repeatedly and deliberately accessed customer’s confidential information without authorisation

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

While access to customer information may be required by an employee in order to carry out their duties, it is critical that employers have policies in place to protect customer information and ensure that it is not misused or improperly…


Added by Shane Koelmeyer on March 2, 2021 at 11:30 — No Comments

Consult, co-ordinate and co-operate: SafeWork NSW successfully prosecutes a PCBU for failing its consultation obligations with other duty holders

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia. These duties and obligations can at times be forgotten, especially when PCBUs are engaged in complex work arrangements that involve a number of duty holders.

In such cases, PCBUs must be aware of the duties they bear, such as the consultation obligation which requires a…


Added by Shane Koelmeyer on February 24, 2021 at 9:10 — No Comments

Sexual harassment and work health and safety – New guidance material released by Safe Work Australia

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful. Under sex discrimination legislation, such as the Sex Discrimination Act 1984 (Cth), employers are obligated to ensure that workplaces are free from sexual harassment and can be held vicariously liable for the unlawful acts of their employees.

New guidance material has been…


Added by Shane Koelmeyer on February 24, 2021 at 9:00 — No Comments

Less is more: Fair Work Commission critical of investigation process despite the employer’s valid reason for dismissal

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

In Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020] FWC 6721, the Fair Work Commission (FWC) was critical of an employer’s…


Added by Shane Koelmeyer on February 10, 2021 at 15:03 — No Comments

Fine following workplace fatality quadrupled following government intervention

Work health and safety legislation in Australia places significant duties and obligations on persons conducting a business or undertaking (PCBU) to ensure the health and safety of workers. These duties and obligations, and the penalties for non-compliance, are intended to reflect the serious harm that could be suffered by workers at work and to act as deterrents to employer staking shortcuts when it comes to health and safety.

PCBUs must have the correct processes and…


Added by Shane Koelmeyer on February 3, 2021 at 11:01 — No Comments

The daily commute: Fair Work Commission accepts that role with additional travel time was acceptable redeployment employment

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.  This might include redeployment within the employer or its related companies, or finding employment with a third party.

Despite employers’ best efforts to preserve employment, from time-to-time disputes arise when employees would rather have redundancy pay than a new role – or where the new role is not an adequate…


Added by Shane Koelmeyer on January 22, 2021 at 9:00 — No Comments

Put your records on: Court penalises accountant for involvement in employer's failure to keep employee records

The Fair Work Regulations 2009 (Cth) (FW Regulations) impose a number of obligations on employers with respect to the making and keeping of employee records and pay slips.

The FW Regulations set out what records an employer is required to hold and the period for which they must be…


Added by Shane Koelmeyer on November 17, 2020 at 9:18 — No Comments

Construction Zone: FWC upholds objection to constructive dismissal claim

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct. This is referred to as “constructive dismissal”.

This can often be a contentious issue as employees may perceive that…


Added by Shane Koelmeyer on November 17, 2020 at 9:15 — No Comments

It's on you: The onus and presumption in adverse action matters

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason.

One of the features of the general protections provisions under the FW Act is the presumption that…


Added by Shane Koelmeyer on November 17, 2020 at 9:13 — No Comments

In your letter: Termination of employment letters

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.

Termination letters are frequently relied upon by employers and employees alike when a claim for unfair dismissal is made. Given their tendency to arise in legal proceedings, it is important that these documents are correct, provide as much detail as possible and meet the requirements under the Fair Work Act 2009 (Cth) (FW…


Added by Shane Koelmeyer on October 15, 2020 at 10:01 — No Comments

Put it in writing: Notice of termination in the employment contract

When it comes to engaging new employees or promoting existing employees, it is crucial that employers prepare and review contracts of employment to ensure that they accurately reflect the terms which will govern an employee’s employment.

Standard clauses, such as clauses providing notice of termination, can easily be overlooked. This can be a critical error because, in the absence of a contract or certain clauses within a contract, a court will imply those terms. For example,…


Added by Shane Koelmeyer on October 15, 2020 at 9:49 — No Comments

Draw the line: Managing employee conduct and behaviour in the workplace

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

In claims…

Added by Shane Koelmeyer on August 11, 2020 at 17:08 — No Comments

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