Shane Koelmeyer's Blog (367)

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…

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.…

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.…


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,…

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…

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…


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

How was I supposed to know? Employers’ consultation obligations when implementing major workplace change

When an employer is required to make changes to the workplace which are likely to have significant effects on employees, the employer must ensure that it meets any consultation obligations which might apply under various laws and industrial instruments prior to implementing any redundancies that might arise.

For example, all modern awards and enterprise agreements will contain comprehensive requirements for…


Added by Shane Koelmeyer on March 3, 2020 at 9:46 — No Comments

The high life: Unfair dismissal and calculating the high income threshold

In the reporting year 2018/2019, the Fair Work Commission (FWC) received 13,928 unfair dismissal applications. Undoubtedly, unfair dismissal applications are amongst the most common received by the FWC.

The success or otherwise of an unfair dismissal application depends on many factors but one of the most basic considerations is whether or not the employee making the application is entitled to…


Added by Shane Koelmeyer on March 3, 2020 at 9:33 — No Comments

Culture catch-all: “Cultural fit” and recruitment

Employers place a significant emphasis on workplace culture, and rightly so – a workplace that holds itself and its employees to a high standard – set against an identified set of values – is likely to garner support and respect from employees, clients and the public.

Employers with a strong sense of culture seek employees who are likeminded, so questions of workplace culture and cultural fit inevitably arise…

Added by Shane Koelmeyer on February 19, 2020 at 11:25 — No Comments

Head in the cloud: FWC finds evolving technology not a significant role change for IT employee

Organisational change is a constant for business – whether it involves wider cultural change within a company, the introduction of new technology or systems of work, or even a restructure or downsizing of the workforce. These changes are necessary as businesses must respond and adapt to external changes so that they stay relevant and competitive in the marketplace.…


Added by Shane Koelmeyer on February 19, 2020 at 11:19 — No Comments

Keeping you regular: Regular and systematic casual employment

Employers often supplement their workforce by utilising casual employees to perform work in addition to that performed by permanent employees. While such engagements might start out as irregular (or, truly casual), it is not uncommon for casual employment to become regular and systematic, and for a casual employee to develop an expectation of continued employment.

Risks then arise when those regular casual…

Added by Shane Koelmeyer on January 31, 2020 at 15:21 — No Comments

All together now: HR consultant and supervisor found accessorily liable for breach of FW Act

An external HR consultant and a supervisor have been found accessorily liable for contraventions of the Fair Work Act 2009 (Cth) (FW Act) after they were involved in the dismissal of an employee who raised a potential award non-compliance issue (Myers v Arenco Holdings Pty Ltd & Ors [2019] FCCA 3077).

The employee was a yoga instructor at a studio where her duties included…


Added by Shane Koelmeyer on January 31, 2020 at 15:17 — No Comments

Coronavirus: A Guideline for Employers

In recent times there has been widespread publicity about the outbreak of a respiratory illness caused by a coronavirus, which has spread from the Hubei province in China and has since been identified in other countries, including Australia.

On 30 January 2020, the World Health Organization declared the novel coronavirus outbreak a “public health emergency of international concern.” …


Added by Shane Koelmeyer on January 31, 2020 at 15:00 — No Comments

What did you say? Employee dismissed for offensive remarks in the workplace

It goes without saying that employees should treat each other with respect and courtesy in the workplace. 

In a recent decision, the Fair Work Commission (FWC) was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal - Chileshe v EnergyAustralia Pty Ltd [2019] FWC 7622.

The employee in this case was…


Added by Shane Koelmeyer on January 24, 2020 at 16:06 — No Comments

A good deed goes a long way: FWC rejects claim deed was made under duress

As we have discussed in previous blogs, it is not uncommon for an employer and employee to enter into a deed of release or settlement when ending the employment relationship. A deed provides assurances to both parties that the employment relationship is at an end and they can both move forward.

A major reason that deeds are so effective is that they operate as a bar to any proceedings that a party may wish to commence at a later point in…


Added by Shane Koelmeyer on January 24, 2020 at 15:27 — No Comments

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…


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…


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…


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…


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…


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

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