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.
As the year draws to a close, many employers will be celebrating the end of 2015 with their employees, and other work colleagues. Work functions such as Christmas parties are a great opportunity to have fun with colleagues, but as is still too often the case, work Christmas parties can be a source of considerable distress and can cause significant loss and damage to the business and its employees. This is especially the case when inappropriate workplace behaviour put employers at risk of sexual harassment, bullying, discrimination and unfair dismissal claims.
I have often been asked whether an employer can terminate an employee’s employment for serious misconduct, if the employee has either resigned and is working out their notice, or they have been given notice of termination, and are working out the notice.
Employers often wish to have their employees make an express contractual promise not to engage in competitive activities or to use the company’s confidential information after the termination of their employment. Most often, employers do so by requiring their employees to sign employment contracts which contain restraint of trade and confidentiality clauses.
The Commission needed to determine firstly whether the conduct under examination was in fact behavior that was repeated unreasonable behavior. The Commission stated that what is required is “repeated unreasonable behavior by the individual or individuals towards the Applicant worker”. The Commission recognized that there is no specific number of incidents required for the behavior to represent “repeated”, provided there is more than one occurrence and nor does the same specific behavior need to be repeated.