When a Good Reason Just Isn’t Enough

jmhThe Christmas/New Year period provides employees with an opportunity to celebrate the year that has passed. Employees can ‘forget’ the appropriate conduct required of them, particularly when alcohol is involved and when functions are held offsite and outside normal working hours. As a result, employers may now been dealing with the ramifications of any incidents which occurred during this period.

Recent Decision

An employee was involved in a physical assault (head-butting another employee) at a Christmas function. An investigation into the incident was not finalised until April in the following year, but by this time another allegation of assault had been made against the same employee.

In response to the second incident, the employer concluded that the second alleged assault (which was denied by the employee), together with the head-butting incident at the previous Christmas party, established a pattern of unacceptable misconduct. The employer dismissed the employee for serious misconduct.

When considering the employee’s subsequent unfair dismissal claim, Fair Work Australia found that:

  1. No proper investigation had been undertaken.
  2. The relevant manager displayed manifest bias.
  3. The manager had pre-determined his views before hearing from the employee.
  4. The manager ambushed the employee with the allegations and he unreasonably refused to allow the employee to have a support person of his choice attend the investigative interview.

All of these actions resulted in the employer failing to provide procedural fairness to the employee. Fair Work Australia decided the employee’s termination was unfair and awarded compensation.

Proper investigation is the key

To minimise the effect of any claims for unfair dismissal, you should take steps to properly investigate the incident and provide procedural fairness to employees during the process.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

Click here for more information on Jessica Simmonds.

The Elephant in the Room

The Australian managing Director of Rio Tinto, David Peever says that the Fair Work Act is the elephant in the room when it comes to the productivity debate in Australia.

Heather Ridout, who used to be the head of the Australian Industry Group and is now on the Reseve Bank board said on a recent Q & A programme that the “Fair Work Act gives 120 new rights to unions and nothing to employers”. On the same programme,  Judith Sloan, an economist and commentator suggested that it was ironic that the Act assumes that the right of unions is paramount when it comes to work place contracts but only 13% of the private work sector belong to unions.

Calls by industry leaders for a more flexible, productive and fair work place relations system are becoming more strident.

Perhaps the Government has heard the calls.  There are amendments proposed to the Fair Work Act involving an overhaul of the costs provisions.  Under the proposed changes, Fair Work Australia will have new powers to make cost orders against Applicants who bring “unreasonable claims”.

At the moment, it is most unlikely that, if an applicant fails in Fair Work Australia, he or she will have to pay the employer’s costs.  This is because the employer must make application for costs swiftly and, more importantly, must demonstrate that the applicant’s proceedings were manifestly untenable or brought vexatiously.

It is understood that, under the costs regime proposed, an employer will be able to recover its costs if the applicant’s claim is unreasonable.  This is still not the way things work in other litigation concerning breach of contract or statutory obligation, where costs  follow the event unless the circumstances are exceptional.

The commentators suggest that the proposed changes to the costs regime will provide some relief for small business.  It is hoped that it will enable litigation in Fair Work Australia to be conducted more efficiently and drive early resolution.

Costs aside, the best way for a small business to protect itself from unmeritorious claims is to implement fair and compliant dismissal processes.  The employment team at Everingham Solomons can help with dismissal issues because at Everingham Solomons Helping You is Our Business.

Click here for more information on Mark Johnson.

Redundancy Rights and Risks

jmhIf you are an employer faced with the difficult task of making employees redundant, it is important to know what obligations you have and what steps you ought to take to meet those obligations.

If you are an employee faced with redundancy, it’s important to know your rights and ensure you receive the correct entitlements.

What does redundancy mean?

A redundancy occurs when employment is terminated because the employer decides they no longer want that person’s job to be done by anyone, or because the employer becomes insolvent or bankrupt.

In order for a redundancy to be a ‘genuine redundancy’, it must be shown that:

  1. The job will not be done by anyone else and the position will not be filled by any other person.
  2. The requirements in the applicable modern award, enterprise agreement or industrial instrument to consult with the employee about the redundancy have been followed.

Redundancy pay

Redundancy pay may be up to 16 weeks of ordinary pay and is calculated upon the length of service. There is no legal requirement to pay redundancy pay to employees who have been employed for less than one year. Redundancy pay is paid in addition to any other entitlements, such as outstanding wages and accrued leave entitlements.

Steps to redundancy

Firstly, an employer ought to consider all options and alternatives to redundancy, like redeployment, job sharing and reduced overtime.

Secondly, an employer should meet with the employee who is to be made redundant to explain the situation and give him or her opportunity to ask questions.

Thirdly, written notice of the redundancy ought to be given to the employee.

Whether you are an employer or employee, Everingham Solomons will be more than happy to assist you with any employment queries because Helping You is Our Business.

Click here for more information on Jessica Simmonds.

Contractor or Employee?

RHGIf you are beginning a new job, you should ensure that your relationship with the business hiring you is clearly defined.

If you work for a business under a contract of employment in return for regular pay, you will generally be classified as an “employee”. Employees are provided with the safety net of minimum terms and conditions of employment under the National Employment Standard (NES), which include annual & personal leave, parental leave, a right to request flexible working arrangements, a standard working week of 38 hours, public holiday entitlements and notice of termination.

Independent contractors, on the other hand, are generally not entitled to the benefits under the NES. “Contractors” are usually engaged under a contract to perform a specific task or are contracted for a specific period. A contractor will normally supply & use their own equipment, and will have control over the hours they work.

Whilst most agreements will state whether the relationship is that of “employer/employee” or “principal/contractor”, some employers may attempt to conceal the true nature of the arrangement in an attempt to avoid paying superannuation and leave entitlements.

The following factors are taken into consideration in determining whether a person falls into the “employee” or “contractor” category:

  • the degree of control the “employer” exercises over the place of work, hours of work and the manner in which work is performed.
  • whether the worker is at liberty to advertise their services to others.
  • deduction of income tax from remuneration paid to the worker.
  • whether the worker provides significant tools or equipment.
  • method of remuneration – periodic wage/salary vs. payment on completion of specific tasks.
  • provision of paid holiday or sick leave.
  • whether the worker spends a significant proportion of his/her remuneration on business expenses.

If you are currently operating as a “contractor” however think that you should be entitled to the benefits of an “employee” classification, contact the employment law team at Everingham Solomons where Helping You is Our Business.

Click here for more information on Rebecca Greenland.