In March 2015, two former directors of ABN AMRO Australia Holdings Limited (“AAAH”) successfully argued that severance and other beneficial bonus entitlements owed to them under AAAH policies, which had not been paid to them on termination, ought to have been paid by their former employer.
Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”) the Fair Work Commission (“Commission”) has the power to make a “stop bulling order” when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”.
Despite being welcomed for providing greater legislative protection to workers against inappropriate workplace behaviour, the anti-bullying jurisdiction which commenced on 1 January 2014 has had much lower rates of utilisation that expected. The Commission has however delivered some key decisions which provide some clarification around its scope to address and remedy workplace bullying.
In the last few weeks we have appeared in numerous unfair dismissal matters. The level of activity in this jurisdiction is not unusual given that in the period between October to December 2015 the Fair Work Commission (“Commission”) received a total of 3636 unfair dismissal applications. Why is this jurisdiction so popular? It may be due to the fact that 49% of all conciliations settle by way of a monetary payment to the employee within the range of $2,000 to $4,000, and 79% for a payment of less than $8,000. As is often the case, such payments are made because an employer wishes to make the problem “go away”, which can be extremely dissatisfying in circumstances where an employee has followed the appropriate termination procedures and best practices.
One of the most frequent questions I get as an employment lawyer is “restraints of trade are not really enforceable are they?” The legal position is that restraints of trade clauses in employment contracts are void, unless reasonable, and operate to protect a legitimate business interest. Historically this was interpreted very narrowly, and most restraint clauses were not enforced by the Courts. However, that is not the case today. My advice to people who now ask me that questions is, be very, very careful if you are subject to a restraint of trade clause and you wish to breach it.
Many of my clients tell me that they just want to terminate the employment of a troublesome employee and they do not want the hassle of a long drawn out process they believe is required to ensure the employee cannot bring an unfair dismissal claim. I often hear the refrain that it is “impossible to terminate employees in Australia”.
Now I do understand the business imperatives that require quick action in circumstances where an employee is consistently underperforming or is just not a suitable employee. The simplest answer to this issues is to ensure that all employees are properly managed from the day they are hired. Actually, it should start before commencement, as choosing the right employee carefully goes a long way in preventing the issue from arising at all. If employers did this properly, I promise I would be out of business.
Adcock v Blackmores Limited & Ors [2016] FCCA 265
Background
This case concerned an application by Mr Adcock, the former Commercial Manager (Asia) of Blackmores Limited (“Blackmores”) a publicly listed company which produces and sells a range of natural healthcare products, who sought compensation in excess of $140,000 on the basis that his employer dismissed him by refusing to recognise that his position was redundant and had repudiated his contract of employment by failing to pay him redundancy entitlements under an enterprise agreement. In addition, Mr Adcock claimed that Blackmores’ HR personnel knowingly or otherwise reckless misled him as to his workplace rights, namely that he was entitled to redundancy pay.
Change management and downsizing has the potential to present a melting pot of legal issues for employers, and there are many practical traps for organisations to consider in planning and executing redundancies especially in a tough economic environment.
The legal definition of redundancy in Australia can be readily found in the Fair Work Act 2009 (Cth) (“the Act”). In order to give rise to a genuine redundancy and entitlement to severance pay under the Act, the test to be satisfied is whether the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour. Redundancy is not an excuse for terminating an employee for poor performance.
Without even realising it, we now accept that what would otherwise be a private conversation may in fact be recorded. Many of the day to day exchanges we have in society may be recorded for the benefit of record keeping, or simply for training, coaching and customer services purposes.
With the advent of smartphones and other like technologies, recording devices are no longer restricted to being specialised pieces of equipment. They are literally at our fingertips. However, this does not mean that it is necessarily lawful to record a conversation without the knowledge and consent of one or more parties to the conversation.
Surveillance and monitoring devices are becoming increasingly popular in and around the workplace, but what is the law in regards to recording employees at work. Apart from having a digital receipt of what goes on in the workplace, there are several good reasons why employers invest in surveillance systems. However, there is legislation in place which limits the ability to monitor workers and, perhaps more importantly, to rely on surveillance in circumstances where an employee is suspected of some unlawful or improper conduct.
Background
This case concerned the applicant, Maureen Butterworth, who worked at Independence Australia Services (“IAS”) in the position of Customer Service Officer. IAS is a not-for-profit organisation providing communicated-based services to people with disabilities.
The Victorian Supreme Court (“Court”) has handed down a landmark decision awarding a female employee, Kate Matthews, who had worked in the construction industry for Winslow Constructors Pty Ltd (“Winslow”) a payment of $1.3 million for abuse, bullying and unwelcome sexual conduct suffered by her over a two-year period while she worked for the company as a roadside labourer.
The distinction between an employment relationship and that of independent contractor is often vexed. However, the failure to properly characterize the relationship may lead to significant adverse consequences, including prosecution under the Fair Work Act 2009 (Cth) for sham contracting. In this article we focus on the risks associated with prosecution for sham contracting. However, it should be noted that in addition, employers who improperly classify employees as independent contractors may also be liable for underpayment of wages claims, leave claims, payroll tax and other ATO liabilities, superannuation payments; and civil penalties. Not to mention that misclassified employees will also have all the rights of employment including to unfair dismissal remedies, redundancy entitlements and the like.