Shane Koelmeyer's Blog (336)

The Pelican Brief: FWC reinstates pelican feeder to job ‘as rare as hen’s teeth’

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness (Matthews v San Remo Fisherman’s Co Operative [2019] FWC 4877).



Prior to his dismissal, the employee had been employed by San Remo Fisherman’s Co Operative (the Co-Op) as a pelican…

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Added by Shane Koelmeyer on August 5, 2019 at 17:30 — No Comments

Court Bags a Bully - Worker convicted for bullying behaviour

Work health and safety legislation aims to provide protections for workers and other persons by eliminating or minimising risks to health and safety. In addition to the primary duty of care imposed on businesses, the work health and safety legislation also imposes a duty on workers.



The duty owed by workers is separate to that owed by the business and workers can therefore be individually prosecuted for failing to comply with their duty – as recently occurred in a case in NSW…

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Added by Shane Koelmeyer on August 5, 2019 at 17:30 — No Comments

Being genuine: Unfair dismissal, genuine redundancy and the redistribution of duties

Discussions with employees about restructures and redundancies are difficult and emotions often run high. Unfortunately, these things are a natural part of operating a business and can be the result of a range of factors from the introduction of new technology to the workplace, to a downturn in business.



With emotions running high, explanations about why a redundancy has occurred and what has happened to an employee’s job can sometimes get lost or confused. This is particularly so…

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Added by Shane Koelmeyer on July 22, 2019 at 12:54 — No Comments

In the driver’s sheet: The importance of correctly characterising employee conduct

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct. Often these concepts are interrelated and it can be difficult for employers to correctly characterise employee conduct and behaviour when a decision is made to commence a disciplinary process with an employee.



However, if the characterisation of the issue at hand is not made correctly in the disciplinary context, there is a real risk that an employee cannot properly answer…

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Added by Shane Koelmeyer on July 15, 2019 at 15:26 — No Comments

Not ok in any (con)text: Texting, dismissal and the FWC

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion. For those reasons, many managers and employers attempt to avoid conflict or confrontation by delivering the news in a way that doesn’t involve a face to face meeting, such as in email or text message.

In two recent decisions, the Fair Work Commission (FWC) has warned against such an approach and has heavily criticised two separate…

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Added by Shane Koelmeyer on July 15, 2019 at 11:31 — No Comments

Have a seat and take a stand: Why clubs need to regulate fan and member behaviour at sporting events

One of Workplace Law’s lawyers recently attended a sporting event at one of the largest sporting arenas in New South Wales, and had the unfortunate experience of having to listen to nearby spectators make inappropriate (and racially charged) comments about the players on the field. This issue was raised with the hosting club and the venue subsequent to the game, however, as the perpetrators couldn’t be identified, the response was that the matter could not be taken any further.

For…

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Added by Shane Koelmeyer on July 15, 2019 at 10:25 — No Comments

Doing It For The 'Gram - Social media, sporting clubs and athletes

Social media has long been a platform through which athletes can engage with their fans and “build their brand”.



For professional athletes, their status as public figures make them instantly recognisable and immediately associated with their sport and their club. Even a non-professional athlete’s use of social media can impact the club or sport’s relationships with sponsors and the public. Given this linked recognition, posts on social media will inevitably be seen as a reflection…

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Added by Shane Koelmeyer on June 17, 2019 at 15:47 — No Comments

Tripping Out - FWO investigation finds Uber drivers not employees

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.



At present, Uber is facing a class action law suit from taxi and hire car drivers in Australia, as well as an enquiry into the working conditions of on-demand workers by the Victorian Government. Globally, drivers have protested seeking fairness in pay and better safety conditions.



Of all the issues faced by Uber, one of…

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Added by Shane Koelmeyer on June 17, 2019 at 15:40 — No Comments

May The Force Be With You: FWC finds resignation warranted

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour. In some cases, the parties will try and reach an amicable solution to end the employment relationship such as agreeing to allow the employee to resign.



However, employers must be careful when entering into these types of discussions. The way in which an employee’s employment is finalised could have a significant bearing on that employee’s entitlement to…

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Added by Shane Koelmeyer on June 17, 2019 at 15:31 — No Comments

Super (not so) Simple: Court finds independent contractor owed superannuation

Deciding on the terms under which to engage a person to perform services can be a complex task. There are benefits to engaging individuals as independent contractors where there is a particular task, project or specialised kind of work that needs to be performed. But mischaracterising the relationship can have dire consequences for employers.…

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Added by Shane Koelmeyer on June 11, 2019 at 16:50 — No Comments

The Stalking Horse: FWC warns of abuse of stop bullying jurisdiction

It has unfortunately become a common occurrence for employees who are subject to management action (such as the issuing of reasonable and lawful directions or disciplinary processes) to immediately seek redress by filing a claim against their employer (or other employees) alleging things such as adverse action, discrimination or bullying. In these instances, employers often feel obliged to delay or defer any further management action until the employee’s claim is resolved.

In a recent…

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Added by Shane Koelmeyer on June 11, 2019 at 16:46 — No Comments

Take It Back: Employer ordered to withdraw unreasonable safety warning

A recent decision of the Fair Work Commission (FWC) has reminded employers of the importance of taking a measured and consistent approach to enforcing workplace policies and procedures – particularly those relating to work health and safety.

In Cordowiner v Ashton Coal Operations Pty Ltd [2019] FWC 2525, the FWC ordered an employer to withdraw a formal warning that it had issued to an employee following a safety breach, because its supervisors had condoned the conduct to the…

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Added by Shane Koelmeyer on May 20, 2019 at 9:34 — No Comments

The Clash: The FWC on employee disputes and workplace bullying

When employees clash it can sometimes result in claims that one or both are bullying the other. When emotions are running high and differences are unable to be resolved, employees often turn to the anti-bullying jurisdiction of the Fair Work Commission (FWC).

Under the Fair Work Act 2009 (Cth) (FW Act), the FWC can hear a bullying claim and make any orders it considers necessary (other than orders involving monetary compensation) to stop bullying from continuing. Before…

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Added by Shane Koelmeyer on May 20, 2019 at 9:27 — No Comments

Pay Attention: Director ordered to undertake training following due diligence failure

The model Work Health and Safety Act (Model Act) imposes a duty on officers to exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with safety duties.

In SafeWork NSW v Macquarie Milling Co Pty Limited; SafeWork NSW v Samuels [2019] NSWDC 111, a company and its sole director pleaded guilty to, and were convicted of, failing to comply with their duties to a worker, including a failing on the part of the director to…

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Added by Shane Koelmeyer on May 20, 2019 at 9:00 — No Comments

Talk to Me: the importance of consultation in the redundancy process

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Added by Shane Koelmeyer on April 15, 2019 at 12:07 — No Comments

No good in goodbye – employee on stress leave did not abandon employment

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.

How the employer should respond? Particularly where it appears that the employee has abandoned their employment and has brought the employment relationship to an end.

In the recent decision in Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687, the Fair Work…

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Added by Shane Koelmeyer on April 11, 2019 at 10:48 — No Comments

Family Feud: FWC orders managing director to stop bullying HR manager

In response to an application to stop bullying, the Fair Work Commission (FWC) has the power to make any orders it thinks necessary to prevent workplace bullying from continuing. The FWC’s exercise of this discretionary power has resulted in some interesting orders over the years, including requiring employees to greet each other in the mornings or directing that an employee stop exercising at work in the vicinity of another employee.

In a more recent decision, the…

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Added by Shane Koelmeyer on April 11, 2019 at 10:44 — No Comments

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