Shane Koelmeyer's Blog (381)

A-League club facing adverse action claim in Court

It is sometimes forgotten that sporting clubs and organisations are employers who are also subject to workplace laws and regulations in relation to their employees.

In a stark reminder that sporting clubs and organisations are not exempt from the rules, the former team manager of Western United has commenced…

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Added by Shane Koelmeyer on June 22, 2020 at 10:51 — No Comments

No competition: Conflicts of interest in the employment relationship

Many standard employment contracts contain a clause that addresses an employee’s obligations in relation to secondary employment and conflicts of interest. The obligation is generally that an employee will not act in a manner that conflicts with the interests of their employer or their duties as an employee. This contractual obligation is reflective of the common law duty that an employee must not engage in conduct that is incompatible with their duties to…

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Added by Shane Koelmeyer on June 22, 2020 at 10:42 — No Comments

Leave me be: JobKeeper and annual leave requests

In April 2020, temporary amendments were introduced into the Fair Work Act 2009 (Cth) (FW Act) to support the JobKeeper scheme. The provisions permit eligible employers to give certain directions to eligible employees in relation to reducing hours or days of work and/or temporarily changing their usual duties, location of work or days and times of work.

In addition, the JobKeeper provisions…

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Added by Shane Koelmeyer on June 22, 2020 at 10:34 — No Comments

Stand down and out: FWC dismisses challenge to stand down

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Added by Shane Koelmeyer on June 22, 2020 at 10:22 — No Comments

Adverse action claim initiated against professional football club

The Chief Operating Officer of Macarthur and South West United FC (the Club) has launched legal proceedings against the Club, the Club Chair and another director alleging breaches of the general protections provisions under the Fair Work Act 2009 (Cth) (FW Act).

The FW Act provides…

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Added by Shane Koelmeyer on June 22, 2020 at 10:00 — No Comments

Eating out: Full Bench find UberEats delivery driver not an employee

In a significant recent decision, the Full Bench of the Fair Work Commission (FWC) held that an UberEats delivery driver was not an employee, with the majority finding that the delivery driver was in fact an independent contractor (Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698).

The delivery driver made an application to the FWC alleging that…

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Added by Shane Koelmeyer on May 20, 2020 at 12:19 — No Comments

Taking the high ground: FWC upholds dismissal of employee who stored marijuana equipment in the workplace

In deciding whether to take disciplinary action against an employee, it is important for employers to ensure that the employee is given a reasonable opportunity to provide a response or explanation before a final decision is made, particularly when it concerns matters that could result in summary dismissal.

This requirement for procedural fairness can prove to be difficult if an employee, when faced with…

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Added by Shane Koelmeyer on May 20, 2020 at 12:07 — No Comments

Cover me: Dismissed department Head fails in bid to be covered by modern award

The unfair dismissal provisions of the Fair Work Act 2009 (Cth) (FW Act) provide a mechanism by which employees who have been unfairly dismissed can seek a remedy through the Fair Work Commission (FWC). However, not all employees will be protected from unfair dismissal and able to make a claim.…

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Added by Shane Koelmeyer on May 20, 2020 at 12:00 — No Comments

Fake news: Union ordered to pay $3 million for spurious safety claims

The regulation of industrial action in Australia is complex. Whilst there is a need to acknowledge the rights of employees to engage in industrial action, the overall effect of industrial action on an employer’s business operations cannot be understated. Strikes or work stoppages and delays can have serious financial and reputational consequences for a business.…

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Added by Shane Koelmeyer on May 12, 2020 at 15:31 — No Comments

Blame game: Experience of worker no excuse for not complying with work health and safety duty

In R v Sapform Pty Ltd [2020] NSWDC 86, the NSW District Court (the Court) has criticised a formwork company for attempting to blame a worker who died after he was impaled by a metal bar when he fell from a height. The company was convicted and fined $450,000 for a Category 2 offence for the fatality.…

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Added by Shane Koelmeyer on May 12, 2020 at 13:08 — No Comments

Vexed variation: The FWC, COVID-19 and variations to redundancy pay

The Fair Work Commission (FWC) has a vital role to play in the management of the current COVID-19 pandemic as it continues to impact employment relationships across the country.

One aspect of the FWC’s role is the determination of applications by employers to reduce the amount of redundancy pay payable to employees.

In making such…

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Added by Shane Koelmeyer on May 12, 2020 at 12:47 — No Comments

Send me your location? Staying connected while working from home

The coronavirus pandemic has not only upended our social and family lives, for many of us it has also required us to fundamentally change the ways that we work, including working remotely. When once employees could meet up to collaborate on projects, or chat face to face with each other, employees have now been confined to their homes, physically working in isolation.…

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Added by Shane Koelmeyer on April 22, 2020 at 11:46 — No Comments

Order up: FWC refuses to stay dismissal despite stop bullying application

The power of the Fair Work Commission (FWC) to make orders in applications for stop bullying orders is unique. While the ambit of the FWC’s power is broad, in that it can make any orders that it considers appropriate (other than orders providing for monetary compensation), those orders must be directed at preventing or stopping workplace bullying.

A question that has arisen in recent decisions…

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Added by Shane Koelmeyer on April 22, 2020 at 11:39 — No Comments

COVID-19 and modern award variations

In response to the impacts of the COVID-19 pandemic on businesses and employment across Australia, the Fair Work Commission (FWC) has already introduced (and proposes to further introduce) a range of temporary variations to modern awards to provide increased flexibility for employers and employees during this challenging time.…

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Added by Shane Koelmeyer on April 15, 2020 at 15:40 — No Comments

Managing employees with disabilities

Managing underperformance is a difficult process and employers should always bear in mind that personal or other extenuating circumstances may be impacting a particular employee’s performance.

Any decision relating to performance management or disciplinary action should take these circumstances into account, and should not fall foul of the employer’s obligations at law, such as the unfair dismissal or general…

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Added by Shane Koelmeyer on March 20, 2020 at 13:25 — No Comments

Everything else is just a bonus: Employment contracts and discretionary incentive schemes

Bonuses and incentive schemes can be extremely successful in driving individual employee performance and overall business performance. A significant amount of work can go into crafting such a scheme – from market predictions to setting appropriate targets, drafting motivational communications to employees, and, very importantly, careful drafting of scheme documents.…

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Added by Shane Koelmeyer on March 17, 2020 at 15:00 — No Comments

I’ll go first: Employer’s disciplinary process didn’t force resignation

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour. Importantly, it notifies an employee that they are at risk of being dismissed.…

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Added by Shane Koelmeyer on March 17, 2020 at 15:00 — No Comments

Out of service: Server dismissed for inappropriate conduct towards co-workers

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.

Of course, proper training and well considered policies can go a long way to ensuring employees understand what is expected of them but occasionally,…

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Added by Shane Koelmeyer on March 11, 2020 at 10:13 — No Comments

You’re a liability: “all reasonable steps” and vicarious liability

Federal and State anti-discrimination legislation makes it unlawful for employers to discriminate against or harass a person in their employment. The legislation also places liability on employers for the discriminatory conduct of their employees.

This means that if an employee is found to have acted in breach of…

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Added by Shane Koelmeyer on March 11, 2020 at 9:44 — No Comments

Who holds the record? Record keeping basics for human resources

No profession loves hard copies of records more than lawyers – but it is often human resources who have the most to do with record keeping, particularly in relation to retaining employee records.

What are the basic records which should be kept for employees?

There are records which employers are…

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Added by Shane Koelmeyer on March 3, 2020 at 9:49 — No Comments