Shane Koelmeyer's Blog (426)

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…


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…


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…


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…


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…


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…

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…


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…


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

Direction needed: Court finds multiple breaches of general protections provisions

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.

The First Respondent operated a business providing online directory services. The First Respondent was supported in its business by the Second Respondent and…


Added by Shane Koelmeyer on August 5, 2021 at 11:42 — No Comments

Diamonds are not a girl’s best friend: Employee dismissed for exercising workplace right to take leave

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.

In Tapping v Empress Diamonds Pty Ltd ATF Empress…


Added by Shane Koelmeyer on August 5, 2021 at 11:00 — No Comments

Cigarettes and cough lollies: Employee dismissed for failing BAC tests

In a recent unfair dismissal decision, the Fair Work Commission (FWC) has supported an employer’s decision to dismiss an employee for breaching its drug and alcohol policy despite the employer failing to strictly enforce the policy.

In Rushton v Giacci Bro Pty Ltd [2021] FWC 3634, the FWC heard that the employee was employed by Giacci Bro Pty Ltd (the Employer) as a truck driver but, at the time of his dismissal, he had been performing light…


Added by Shane Koelmeyer on July 26, 2021 at 16:00 — No Comments

Off the clock: Fair Work Commission finds out-of-hours drink driving offence was not a valid reason for dismissal

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.

The Fair Work Commission (FWC) recently made an important out-of-hours conduct ruling in the case Bobrenitsky v Sydney Trains [2021] FWC 3792 where it ordered the reinstatement…


Added by Shane Koelmeyer on July 26, 2021 at 13:48 — No Comments

Time’s up: Fair Work Commission rejects extension of time application after finding that the date of dismissal was made reasonably clear to the employee

Recently, Workplace Law successfully supported one of our clients in opposing an extension of time.

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission (FWC). The statutory limit starts from the date the dismissal takes effect.

If an application is lodged outside of the statutory time limit, then the employee must seek an extension of…


Added by Shane Koelmeyer on July 15, 2021 at 16:17 — No Comments

You’re bacon me crazy: Fair Work Commission finds dismissal was disproportionate to the gravity of an employee’s heat of the moment remark

In the unfair dismissal jurisdiction, the primary remedy is reinstatement. This means the employer is ordered to return the employee to their employment in the position they held immediately prior to their dismissal or another position on no less favourable terms.

The Fair Work Commission (FWC) will have regard to a number of circumstances when considering whether to reinstate an employee, such as whether there has been a loss of trust and confidence in the…


Added by Shane Koelmeyer on July 2, 2021 at 10:59 — No Comments

Pedal to the metal: Fair Work Commission orders the reinstatement of an employee who was unfairly dismissed following a second investigation into the same incident

In unfair dismissal matters, reinstatement is the primary remedy and the Fair Work Commission (FWC) may not make an order for compensation unless it is satisfied that reinstatement is inappropriate.

When considering whether reinstatement is appropriate, the FWC will have regard to a number of factors.

In the recent decision of Brelin v Sydney Trains [2021] FWC 1314, the FWC ordered the reinstatement of an employee due to a “grossly unfair”…


Added by Shane Koelmeyer on July 2, 2021 at 10:13 — No Comments

Caffeine hit: Fair Work Commission upholds dismissal of an employee who misused a company coffee account

Financial misconduct committed by an employee can fundamentally damage the trust and confidence in an employment relationship. Unfortunately, financial misconduct is a common issue for Australian businesses and if it is not dealt with promptly and effectively, there is an opportunity for further misadventure.  

The Fair Work Commission (FWC) considered the gravity of financial misconduct in the recent decision of [name withheld] v Credit Union…


Added by Shane Koelmeyer on June 23, 2021 at 15:00 — No Comments

Halt before you post: Casual employee unfairly dismissed for Facebook recommendation

Social media and employee’s conduct online has without doubt added a layer to the employer and employee relationship. While employees may think that their online activities done outside of work hours may be private, their conduct online may become relevant to their employment, for example, where it may disparage their employer, other employees or clients.

In Besanko v R.B. Aquatics Pty Ltd T/A Swimmers [2021] FWC 1952, a 19-year-old casual swim instructor was summarily…


Added by Shane Koelmeyer on May 27, 2021 at 13:10 — No Comments

Not so ‘funny’ meme: FWC finds sexually explicit Facebook post warranted dismissal, despite the employer’s ‘rather unusual’ workplace culture

The workplace culture of an organisation should reflect the values that the business upholds and expects of its employees. It is becoming increasingly challenging for employers and employees to understand where a line is drawn between a relaxed and open workplace culture and a workplace culture that tolerates inappropriate behaviour.

This holds especially true in an age where social media use imposes significant risks to the employer’s business and its employees.

In the recent…


Added by Shane Koelmeyer on May 27, 2021 at 12:28 — No Comments

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

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