Shane Koelmeyer's Blog (287)

Out on the full: AFL club charged with work health and safety breaches

Last week, WorkSafe Victoria charged the Essendon Football Club (the Club) with breaches of the Victorian Occupational Health and Safety Act 2004 (Vic) (the OHS Act) following the safety regulator’s investigation into the Club’s controversial supplements program.

In early…

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Added by Shane Koelmeyer on November 17, 2015 at 15:30 — No Comments

Service station underpayments signals court's approach to accessorial liability of managers and directors

Fair Work Ombudsman v Liquid Fuel Pty Ltd & Ors [2015] FCCA 2694

The Federal Circuit Court of Australia (the Court) recently found a director and two managers of a company which operated a Victorian BP Service station personally liable for the underpayment of wages and breaches of the Fair Work Act 2009 (Cth) (FW Act).



FACTS

The Fair Work Ombudsman (FWO) commenced proceedings against Liquid Fuel Pty Ltd (the…

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Added by Shane Koelmeyer on November 5, 2015 at 12:00 — No Comments

“Rock, paper, scissors: injury, illness or disability?”

In July 2015 the Federal Circuit Court of Australia (the Court) delivered its judgment in Huntly v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (Huntly’s case).

The Court found that Corrective Services NSW unlawfully discriminated against Huntly and failed to make reasonable adjustments after she was diagnosed with Crohn’s Disease. As a result, the Court ordered that Corrective Services NSW pay Huntly, a former employee, more than $180,000…

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Added by Shane Koelmeyer on October 30, 2015 at 9:30 — No Comments

“It’s all about the process: What to consider in the Disciplinary Process”

As highlighted previously in our “Todd Carney” blog series: “The importance of procedural fairness – “it’s all about the process” and “Off the clock – employer interest in employee’s out of work conduct”, the main argument raised by Carney in his sacking from the Cronulla Sharks was that he was denied procedural fairness prior to his termination.

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc) to…

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Added by Shane Koelmeyer on October 27, 2015 at 10:00 — 1 Comment

Time to Say Goodbye - Employee’s Failing to Give Notice

You may have seen on the internet some daring employees who choose to provide their employer’s notice of their resignation by interpretative dance, song and even cake! Whilst there are many ways that an employee can notify their employer of notice – what happens in circumstances where an employee does not provide proper notice of their resignation?

This is certainly a frustrating situation for many employers as they are left in the lurch by employees who simply walk out without regard…

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Added by Shane Koelmeyer on October 22, 2015 at 15:00 — No Comments

(Anti)Social Media: Former SBS employee to have his day in court

We previously blogged about employees using social media with caution in our article A Cautionary Tale About Employees & Twitter.

We originally reported that Mr McIntyre had intended to proceed with a general protections claim under the Fair Work Act 2009 (Cth) (the Act), however, he has succeeded in changing his claim to an unlawful termination claim (under section 773 of the Act).

In order for a person to successfully argue that they were discriminated against and…

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Added by Shane Koelmeyer on October 14, 2015 at 15:14 — No Comments

Off the clock – employer interest in employee’s out of work conduct

As highlighted last week in our blog “The importance of procedural fairness – “it’s all about the process” former Cronulla Sharks (the Club) player Todd Carney and his legal advisors indicated that legal action would be initiated against the Club.

Carney has claimed that the Club did not afford him with procedural fairness when it terminated his contract for his off-field indiscretion.

Employers are often uncertain as to how to deal with the out of work hours conduct of…

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Added by Shane Koelmeyer on October 14, 2015 at 15:00 — No Comments

The importance of procedural fairness – “it’s all about the process”

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks (the Club) serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

After the image of Carney surfaced on the internet in June 2014, the Club swiftly elected to terminate his contract. Carney and his manager maintained that they were only notified of the Club’s decision after the announcement was already…

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Added by Shane Koelmeyer on October 6, 2015 at 11:08 — No Comments

If I can be serious for a moment - getting serious about serious misconduct

There is often confusion about what conduct constitutes ‘serious misconduct’ when engaging in disciplinary action or considering summary dismissal as the reason for termination of employment.

On occasion, the concepts of ‘inappropriate and unacceptable behaviour’ and ‘serious misconduct’ are muddled when a decision is made to terminate an employee’s employment.

Employers risk claims of unfair dismissal where an employee’s employment is terminated due to ‘serious misconduct’…

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Added by Shane Koelmeyer on September 21, 2015 at 18:30 — 1 Comment

Sick Leave and the Modern Workplace

The “workplace warrior”

Past generations grew up with the mentality of turning up for work no matter how sick they were feeling. Sick leave was not actively taken unless absolutely necessary and even then with great reluctance. There are many people who still have this attitude in the modern workplace and are often described as ‘workplace warriors’.



The ‘sickie’

To try…

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Added by Shane Koelmeyer on September 10, 2015 at 10:00 — No Comments

Everything old is new again: accident pay provisions and modern awards

What is accident pay?

Historically, accident pay was considered to be a form of “make up pay” for the difference between the amount of workers compensation paid by the insurer and the employee’s award rate or actual rate of pay (i.e. any over award payments).

Accident pay became payable to an employee whilst they were on workers compensation for up to 26 weeks. This entitlement prior to 1 January 2010 was only derived from a federal award, state award or…

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Added by Shane Koelmeyer on September 2, 2015 at 15:30 — No Comments

Where there is smoke, is there fire? Drug and alcohol testing in the workplace

An increasing number of workplaces have introduced drug and alcohol policies which include random drug testing. These introductions are not always warmly welcomed.

In the recent Fair Work Commission decision of Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075, the Full Bench held that it was not unjust or unreasonable for Port Kembla Coal Terminal Limited (the Employer) to introduce…

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Added by Shane Koelmeyer on September 2, 2015 at 15:30 — No Comments

Workplace Conversations & Resilience - Don't be Afraid

Modern day employers are increasingly required to adapt to the sensitivities of their employees – particularly when needing to raise performance issues.

Managers and key decision makers need to learn how to have those difficult conversations with employees – a key part of being a good manager. These conversations should take place in a way that does not demean or intimidate the employee as well as protecting the Company’s position when it comes to being able to defend claims for…

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Added by Shane Koelmeyer on August 26, 2015 at 19:00 — No Comments

"WAGs", "HABs" and team culture

The appearance of the wives, girlfriends and families of members of Australian cricket team on the current Ashes tour of England are not only fodder for celebrity gossip magazines and websites, they also attract the attention and criticism of cricket commentators.

After Australia lost the Ashes, the presence of the partners and families were labelled as a distraction to the players. The separate lives of the players off the field during a tour has been criticised as having an adverse…

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Added by Shane Koelmeyer on August 18, 2015 at 11:00 — No Comments

Short Changed?

Since the introduction of the modern award system in 2010 many employers have found it difficult to understand the complex requirements. In fact, the Fair Work Ombudsman (FWO) reported that for the 2013-2014 financial year it recovered more than $23 million for 15,483 workers.

However, it is not just small businesses who are finding understanding the modern award system difficult. In June 2015, the FWO found that 123 former sports bar and Hungry Jacks employees at Newcastle Airport were…

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Added by Shane Koelmeyer on August 12, 2015 at 12:30 — No Comments

Workers' compensation claims – What employers can do to assist insurers

Employers often express their concern about being excluded and not involved in the decision making process when it comes to workers compensation claims that they consider to be ‘highly questionable’.

All Australian workers compensation legislation provides strict timeframes for insurers in relation to disputing or accepting liability for a workers compensation claim.

So, where there are concerns about whether a claim is genuine it is important that employers assist their…

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Added by Shane Koelmeyer on August 10, 2015 at 11:00 — No Comments

“Boo” or “Boo-Urns” – Australia’s racial discrimination laws – does intention matter?

There was much conversation last week regarding the certain sections of AFL crowds booing and jeering former Australian of the Year, Adam Goodes. As most people know Adam is a Sydney Swans AFL player, a proud indigenous man and a prominent advocate on behalf of the Australian indigenous community.

The behaviour has certainly opened up significant debate about whether such behaviour is bullying fuelled by racism or if fans were heckling the player for other reasons, such as his…

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Added by Shane Koelmeyer on August 3, 2015 at 13:02 — No Comments

What to do about employees charged with criminal offences

Employers are often faced with the challenging task of how to approach the situation where an employee falls foul of the law as a result of conduct in their personal life.

Consider the following recent examples involving professional footballers:

In February this year, a former rugby league, Australian rules and now rugby union player was charged with the use and supply of cocaine. The player was immediately stood down from his club, the Queensland Reds, and after entering a…

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Added by Shane Koelmeyer on July 28, 2015 at 16:18 — No Comments

[No] ticket to drive – a lesson for employers

In the recent case of Mr Christopher K v Linfox Australia Pty Ltd [2015] FWC 3967 the Fair Work Commission confirmed that there will be a valid reason for the termination of an employee’s employment where they are unable to perform the inherent requirements of their position.

In this matter, Mr K was employed as a full-time truck driver for Linfox at its Newcastle site. Earlier this year, whilst driving his own vehicle, Mr K was charged…

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Added by Shane Koelmeyer on July 22, 2015 at 19:28 — No Comments

Inherent Requirements and Psychological Conditions

As our readers are aware, we have previously blogged about including psychological testing as part of a pre-employment medical.  Building on that theme we now comment on a recent FWC decision involving an employer’s ability to have existing employees undergo a psychological medical examination.

In January 2014, Mr Z raised concerns about the behaviour of his…

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Added by Shane Koelmeyer on July 20, 2015 at 13:18 — No Comments

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