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National survey on sexual harassment in the workplace paints an ugly picture!
Posted by
Anna Ford
on 17 Oct 2018
The results of the 2018 survey on sexual harassment in the workplace (conducted by the Australian Human Rights Commission and involving over 10,0000 Australian participants) are now in, and they have produced what I would consider to be some seriously concerning statistics!
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Protecting Confidential Information: The Notice Period
Posted by
Dominic Russell
on 29 Jun 2018
The notice period is the most likely time that an employee will attempt to steal confidential information, so businesses need to manage the transition process carefully in order to get the most out of departing employees, while also protecting themselves from risk.
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Protecting Confidential Information: Restraint of Trade Clauses and Workplace Surveillance
Posted by
Dominic Russell
on 22 Jun 2018
Departing employees often pose the greatest risk to the future goodwill of a business, as they have had the opportunity to form relationships with the client base and supplier network and may wish to take advantage of this knowledge.
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Can an employee withdraw their resignation? Do you have to accept an employee's resignation for it to be valid?
Posted by
Anna Ford
on 1 Jun 2018
When an employee notifies his / her employer that they wish to terminate their employment, their employment will automatically terminate when the relevant notice period expires. What happens when an employee wishes to withdraw their resignation?
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Gardening Leave - Weeding out Potentially Hazardous Employees Following a Resignation
Posted by
Dominic Russell
on 22 Mar 2018
When an employee resigns, it is often prudent for their employer to keep the departing employee on their books. During this period, the employer may instruct the employee not to attend their place of work – but to still remain available to perform duties as directed. This is commonly known as ‘gardening leave’.
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Terminating an employee based on their inability to perform the inherent requirements of a job
Posted by
Anna Ford
on 9 Mar 2018
To successfully defend an unfair dismissal claim, an employer must be able to satisfy the Fair Work Commission (FWC) that the dismissal was not harsh, unjust or unreasonable.
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FWC rules Uber not an employer in Australia…Yet.
Posted by
Stephen Booth
on 29 Jan 2018
The tension between traditional employment law frameworks and the gig economy has come to the fore once again after the Fair Work Commission holds that an Uber driver is not an employee.
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HR Manager fined $21,760: Courts and FWO are sending a message
Posted by
Stephen Booth
on 21 Dec 2017
In a recent case, the HR manager of a Chinese restaurant was fined $21,760 for knowingly processing underpayments and helping to falsify records. Under the Fair Work Act, she was liable as an accessory for the company’s failure to pay minimum rates and entitlements over a 16-month period. HR managers and workplace advisers have been warned.
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Counting down the minutes - Is being late a legitimate basis to terminate employment?
Posted by
Anna Ford
on 5 May 2016
Are you dealing with an employee who is repeatedly late to work? Have you considered whether that would constitute a legitimate basis to terminate their employment? In short, the answer is yes! If you follow the correct process...
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If a fixed term contract expires, do all issues go away?
Posted by
Lisa Qiu
on 4 Feb 2016
You might think that any issues that arise with the employee on a fixed term contract will go away once the contract expires. A recent decision of the Federal Circuit Court has confirmed that this is not the case.
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Big Brother in the workplace: Know your rights, and your wrongs
Posted by
Lisa Qiu
on 28 Jan 2016
Recently outrage was sparked at the Daily Telegraph in the UK when employees came to work to find plastic monitoring boxes attached to their desks. Employees discovered that the boxes were produced by OccupEye and could be used to monitor whether individuals were at their desks. The employees had not been advised that these boxes were going to be installed, nor about their purpose.
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Could your company policies be viewed as forming part of your employment contracts?
Posted by
Anna Ford
on 27 Mar 2015
The primary benefit of incorporating certain company rules and procedures into a company policy rather than an employment contract can be the ability of the employer to be able to vary and amend the terms of its policy or policies over time in order to accommodate the forever changing environment of business operations. The terms of an employment contract on the other hand, cannot be varied without the consent of both parties – so it can be a lot trickier to try and implement any change.
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Managing Workplace Behaviour: Swearing AT your manager is not acceptable, even if swearing in the workplace is common practice!
Posted by
Anna Ford
on 29 Aug 2014
If there was ever any doubt, the Fair Work Commission has confirmed a definite distinction between swearing IN the workplace, and swearing AT someone in the workplace (whether it be a manager or another employee).
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Doctor’s certificate… can I get a second opinion?
Posted by
Anna Ford
on 25 Jul 2014
From time to time I find myself discussing issues related to the amount of information (or more accurately, the lack of information) recorded on an employee’s doctor’s certificate, and whether or not my client can ask the relevant employee to attend a doctor of my client’s choosing – two recent Fair Work Commission (FWC) cases have shed some light on this issue.
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Facebook Dismissal
Posted by
Anna Ford
on 14 Jan 2014
The Fair Work Commission recently held that a company’s Facebook message to one of its employees telling her that it would be inappropriate if she was to return to work did in fact amount to the termination of her employment.
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Unsafe Working Conditions
Posted by
Anna Ford
on 25 Nov 2013
A mining company in Central Queensland, Biloela’s Anglo Coal Callide Mine, is currently being sued for $1.26 million after one of its miners tumbled more than 1.5m down a rock face whilst in a dozer, causing permanent injury to the employees spine.
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Managing Workplace Relationships - Part 4
Posted by
Anna Ford
on 8 Nov 2013
Facebook or Face-Crook
All it took was for a Shona Mackin to undertake a quick Facebook search of one of her employees to discover that the employee’s so called ‘injury’ and claim for workers compensation was fraudulent - and it was all downhill from there!
The relevant employee sought workers compensation after he was involved in a motorcycle accident which he claimed happened on the way to his work. Subsequently the employee requested light duties and was working only two hours a day due to the pain he was experiencing in his arm.
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Worker Fired for Accessing Manager’s Email
Posted by
Anna Ford
on 4 Nov 2013
The dismissal of an employee who misused his employer’s computer system has been deemed ‘not harsh or unjust’ and has been held to amount to serious misconduct.
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Managing Workplace Relationships – Part 2
Posted by
Anna Ford
on 11 Oct 2013
Providing a safe work environment – are you addressing your bullying complaints? Following on from my previous blog where I emphasised the importance of employers managing employee relationships, a case has emerged in Queensland in which an employer who turned a blind eye to workplace bullying was found to be negligent of providing a safe work environment. Ms Wolters had been verbally abused and threatened by another employee, Mr Bradley, and as a result suffered severe depression and was unable to return to work.
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Managing Workplace Relationships – Part 1
Posted by
Anna Ford
on 27 Sep 2013
Mediation could save your career…and life. What started as a minor disagreement between Alex Andrasch and another employee almost turned into an ugly scene with Andrasch narrowly escaping getting his ‘head bashed to pieces.’ The other employee was a trained kick boxer and Muay Thai fighter who became enraged when Andrasch questioned his martial arts credentials. Andrasch, also a martial arts fighter, told the employee he had no idea what he was talking about when he heard the employee explaining how to defeat someone who uses Kung Fu - this deeply angered the employee who in response told colleagues that he planned to attack Andrasch once he got him alone.
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Could you be in the firing line of the Fair Work Ombudsman?
Posted by
Anna Ford
on 13 Sep 2013
The Fair Work Ombudsman is in the process of pursuing the owner of an Italian restaurant in Terrigal for failing to pay back nine underpaid employees, including two juniors aged 16 and 19. On top of the total of $12,178.00 owed, the owner could also be facing exposure to penalties, which range from $10,200 per contravention for an individual and $51,000 per contravention for a body corporate.
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Caution: BYO Devices
Posted by
Anna Ford
on 16 Jul 2013
With increasing demands being placed on employee's time and productivity levels in recent years, there is a growing trend for employees to be using their own personal electronic devices (such as smart phones, iPads and so on) as well as other electronic storage devices to enable them to juggle work commitments outside of the office - whether it be whilst working at home, or in between client/customer appointments.
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Returning to work post-baby
Posted by
Anna Ford
on 12 Jun 2013
Having a baby can be an exciting – and demanding – time for parents. The last thing they want to worry about is trying to negotiate suitable return to work arrangements with an employer! However, despite the desire of many first-time parents to plan ahead and confirm arrangements before they go on parental leave, it is usually better not to lock in definite return to work arrangements until after the baby is born. This is because there are often unforeseen events that might occur and make the best of plans fall through. Negotiating suitable return to work arrangements for employees who have had a baby is something many business owners and managers will have to face. As an employer you have a responsibility to make all reasonable adjustments to the workplace to accommodate a pregnancy and the worker's subsequent return.
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It pays to review your PPL options
Posted by
Anna Ford
on 20 May 2013
Many parents will bemoan the axing of the baby bonus from 1 March 2014, as outlined in the recent Federal Budget. About 28,000 families would miss out completely under the change while another 20,000 are expected to instead take Paid Parental Leave (PPL). So how does PPL work?
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Sistine Chapel...Part 2
Posted by
Stephen Booth
on 11 Mar 2013
In my last post, I reported on a visit to the Sistine Chapel, and focused on the ceiling but there is much more to the Chapel than that, since most of the wall space is filled with wonderful 16th century paintings in jewel-bright colours. The most dramatic occupies the whole end wall, Michelangelo’s Last Judgment, painted 1536-41, more than twenty years after he painted the ceiling frescos. This is full of swirling energy and turmoil, with Christ hurling sinners into hell and raising the saved to paradise. It takes some effort to shift from the movement in the overall image to focus on the details - but when you do, one point in the bottom right corner has particular employment law resonance.
In Hell, there is a portly figure with donkey’s ears and a large snake curled around him to cover his nakedness (actually, it is worse, but as this is a respectable professional blog I’ll leave it at that). This is Minos, judge of the underworld, receiving the souls of the damned. As a model, Michelangelo used Biagio de Cesena, the Pope’s Master of Ceremonies at the time, presumably without consent. Michelangelo was always an irascible character, and Biagio was his loudest critic and objected to the many nude figures which Michelangelo included – but had his revenge in perpetuity.
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Safety in the Sistine
Posted by
Stephen Booth
on 18 Feb 2013
As many of my clients know, I am taking a gap year in 2013, travelling the UK and Europe so my posts this year will have a travel theme. I have just finished 2 ½ weeks in Rome, where one of the top priorities of my wife and I was to see the Vatican Museums and the Sistine Chapel. You enter through a small door, onto a marble pavement which extends a couple of metres and then goes down 3 steps to the main floor. And as everyone knows about Michelangelo painting the ceiling, most visitors stop, and look up to stare, as soon as they get through the door, attention pretty much distracted from the steps by the sight of God creating the world, and creating Adam, and the brightly coloured portraits of sibyls and prophets. So, immediate WH&S issue: the risk of someone tumbling down the stairs is pretty high. And if the Work Health & Safety legislation applied, the Vatican would clearly have a duty to all these visitors to a workplace. At first glance, there is nothing in place to address the risk: no barriers, no high-vis markers on the edges of the marble steps, no prominent signs (no-one would look at them anyway!). It seems “all reasonably practicable steps” have not been taken to remove or minimise the risk.
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Heading down the redundancy path
Posted by
Anna Ford
on 6 Feb 2013
I was recently asked to comment on an article for "In the Black" magazine (a CPA publication) on 'what makes a successful redundancy' - and I thought I'd share a snippet of what I said...
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Happy New Year Readers
Posted by
Anna Ford
on 21 Jan 2013
For the next 12 months I will be heading up the Employment Law and Business Migration team here at Coleman Greig, while Stephen Booth takes a sabbatical and ventures around Europe (in my opinion - a well deserved break after 25 years of practice!). If we are lucky we might hear from Stephen throughout the year - maybe even with a description of the picturesque locations he happens to be exploring - but for now it is probably best to review some of the latest developments in the employment law/immigration space over the holiday period!
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Workplace bullying in legal terms
Posted by
Stephen Booth
on 7 Sep 2012
A prominent Melbourne employment lawyer, Josh Bornstein, has suggested that we need to rethink how we deal with workplace bullying in legal terms. He says, surely correctly, that the “Brodie’s law” approach, criminalising bullying as akin to stalking, is more symbolic (and legislative “feel good”) than of real benefit, in the vast majority of cases.
And he argues that we will never make headway against workplace bullying while it is perceived as a safety issue, essentially because an OH&S focus addresses processes and implementation, and in rare cases penalties for a business that handles a bullying issue very badly, but there is generally no private right of action.
But would a much broader right to make a claim about bullying be suitably calibrated to address genuine cases, or would it open floodgates to many cases that are more about general disgruntlement or workplace politics than seriously inappropriate behaviour? As we’ve seen with unfair dismissals, despite the laudable goal to avoid imperatives for employers to pay “go away money”, the simple fact is that wherever there will be costs in money and time to defend claims, money will be paid to make them go away, even in cases of low merit. And defining bullying for the purposes of a right to make a damages claim would be a particularly perilous minefield.
And what that approach ignores is that real cases of bullying generally involve deep-seated cultural issues and behavioural traits of the workplaces, bully and victim. Might we not achieve more by focussing directly on those? Of course, in the short and medium term, that will work in decent workplaces but not reach the toxic ones. And discrimination legislation has certainly permeated everyone’s consciousness because of the risk of claims. A right of action for bullying might do the same, but at what cost?
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EOFY!
Posted by
Stephen Booth
on 3 Jul 2012
Pay rates
All award rates increased 2.9% as of 1 July. So if you pay at or close to award rates, or pay at an annual rate which is not far above award rates but which is intended to include all obligations, then it is a good idea to check the rates you pay against the revised pay rates in the award to make sure you comply, both with base rate and with the total due including overtime etc.
If you need assistance doing this “IR health check”, please give us a call.
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Crashing and burning
Posted by
Stephen Booth
on 7 May 2012
There was a flurry of media attention in 2008 when Vivienne Dye launched claims against Commsec and the Commonwealth Bank, alleging persistent predatory sexual harassment (in some instances alleging conduct amounting to rape) by two named managers. The managers’ reputations were trashed. However, in the long run it is Ms Dye who has crashed and burned, as the Federal Court dismissed all her claims last month, after a case lasting 94 hearing days! The decision includes many details which would seem far fetched if you read them in a novel, including Ms Dye attending a work party wearing a white fur G-string – as you do!
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What were they thinking?
Posted by
Stephen Booth
on 31 Jan 2012
Happy New Year to our blog readers! No resolutions here, but a reflection to begin the year: people can have an amazing lack of insight. Being an employment lawyer (or working in HR) broadens your life experience: you get to see people behaving in ways you wouldn’t believe if you read it in a book. Check out this random sample of recent unfair dismissal try-ons.
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Qantas: where are they up to?
Posted by
Stephen Booth
on 17 Jan 2012
It is in the nature of our media-saturated world that crises occupy all attention for “15 minutes of fame”, and then subside again, so those not directly involved lose the track of the story, till the next crisis.
So what has happened to the Qantas dispute?
Essentially, the wheels set in motion by the Qantas grounding, and the orders of FWA on 31 October, continue to turn, but out of sight. There having been no private resolution within the 21 days allowed, the disputes are now set up for formal arbitration by FWA in March 2012. The general expectation is that, when imposing a deal on the parties, FWA will not override Qantas’ management prerogative to the extent of interfering in decisions about off-shore operations and staffing. Certainly it seems to be Qantas’ calculation that it will get a better deal out of FWA than directly with the unions, and by a route which precludes ongoing industrial action.
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Appeal against 90 minute after school shifts unsuccessful!!!
Posted by
Anna Ford
on 9 Nov 2011
Retailers will very shortly be able to hire high school students on 90 minute casual after-school shifts, after Fair Work Australia rejected the appeal by the Shop Distributive Allied Employer’s Association (refer to previous blog).
FWA wasn’t persuaded that the proposed variation of the three hour minimum engagement period under the General Retail Industry Award was “affected by error”.
The decision, however, doesn’t mean an immediate start to 90 minute shifts because the Award was not formally varied, but the option shouldn’t be too far away!
It is anticipated that 90 minute shifts will only be available where the employee and their parent or guardian agrees, and where employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer, or the unavailability of the employee.
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The theatre of flying by the seat of your pants
Posted by
Stephen Booth
on 3 Nov 2011
Fascinating to watch the developments in the Qantas dispute over the recent weeks. We’ve got out of the habit of watching a dispute on this scale, in a critical industry, with the added frisson of uncertainty over the operation of new legislation. The theatre of a commercial/industrial dispute such as this is something which anyone involved in negotiation or dispute resolution can appreciate. What step to take next, when to take it? How to calibrate it and what message will it send to the other players? How to play your cards close to your chest, while at the same time managing the audience (in this case via intense media interest)?
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Would you be insulted if I offered you a lower paid job?
Posted by
Stephen Booth
on 7 Oct 2011
Beware the consultation and redeployment issues when making employees redundant. For a redundancy to be outside the unfair dismissal regime, it has to be a "genuine redundancy." Whether a redundancy is genuine depends on whether there is consultation as required by an applicable award, and whether any reasonable options for redeployment are offered to the employee.
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Calling the boss a bastard
Posted by
Stephen Booth
on 12 Sep 2011
Surely that's OK, if I do it in my own time from my own computer with the maximum privacy settings and only to a select group of 70? Not when the comments are particularly offensive, and the group includes 11 work colleagues, even when the employee has the sensitivity to block the access of the relevant boss.
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Q: When is a redundancy not a redundancy?
Posted by
Stephen Booth
on 8 Aug 2011
Continuing on last week’s theme that “Redundancy is not a panacea”, I saw a decision last week, made particularly interested by the ATO’s involvement both as employer and taxman, so that the A to the Q above could be “When the ATO says so.” An ATO employee negotiated a voluntary redundancy then asked the ATO to treat it as a “genuine redundancy” to get the tax breaks involved. The ATO refused. She went to the AAT to argue the issue, the ATO opposed it, and she lost.
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Dream or Reality: 90 minute shifts?
Posted by
Anna Ford
on 25 Jul 2011
Retail employers nation-wide are rejoicing over their win, after a long-raging war, to hire casual students for as little as 90 minutes after school. But will the celebrations be short lived? As at 1 July 2011, the existing 3 hour casual minimum engagement period under the General Retail Award 2010 was due to be amended to 90 minutes. As at 1 July, full-time secondary students were to be eligible to enjoy shorter shifts.
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“Life’s a tale told by an idiot, full of sound and fury, signifying nothing” (Macbeth, Act V sc v)
Posted by
Stephen Booth
on 7 Jul 2011
While I don’t want to be quite as nihilistic as that at the prospect of more political “debate” on IR, seeing Tony Abbott, Nick Minchin and Peter Reith manoeuvring last week about Coalition’s IR policy does suggest impending sound and fury, signifying not very much. Ever since the lead up to WorkChoices in 2005 and 2006, the political debate about this has diverged from reality because, once past the Howard Government’s radical step of nationalising the IR system, there has been much more continuity from WorkChoices (Mark II at least) to the Fair Work Act than you would imagine, given the heated rhetoric.
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EOFY already!
Posted by
Stephen Booth
on 27 Jun 2011
Just a few things to bear in mind, and get in order if need be, as 1 July approaches: Paid parental leave, pay increases, modern award transition and unfair dismissal salary cap.
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What do David Jones and the NSW State of Origin team have in common? Lessons on discrimination and harassment
Posted by
on 10 Dec 2010
Within the space of a week, both have been rocked by scandals, “out of the blue” according to media reports, arising from “conduct unbecoming” – abuse based on race in one case, and sexual harassment by a senior employee of a subordinate in the other.