Articles Archives - MDC Legal

Say what? Navigating Unlawful Interview Questions

Posted by | Articles, Discrimination & Bullying, HR Advice & Support | No Comments

An interview provides an employer with an opportunity to get to know prospective employees and assess their suitability for employment. Often, there are many questions an employer wants to ask a prospective employee – however care should be taken to avoid questions which can later be relied on by the interviewee to mount legal claims.

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Smoking at work FAQs

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With the sharp increase in restrictions around the sale, promotion and public consumption of cigarettes over the last 15 years, it’s no wonder there’s confusion around smoking in the workplace.

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Travel extends the mind but not limitation periods: Wragg v Queensland Scaffolding Pty Ltd [2018] FWC 4986

Posted by | Articles, Terminations, Unfair Dismissals & Adverse Action, unfair dismissal | No Comments

The Fair Work Commission has refused an application for an extension of time to file an unfair dismissal application, following a detailed examination of a travelling employee’s social media activities and text messages which demonstrated that he was not incapacitated by depression and grief following his dismissal.

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Are you being underpaid? Are you underpaying your staff?

Posted by | Articles, complaince, Contracts, contractual entitlements, HR Advice & Support, modern award | No Comments

Fair Work Ombudsman audit

The Fair Work Ombudsman (FWO) recently conducted an audit of businesses throughout the eastern states of Australia which found that found that 72% of the businesses had breached workplace laws.[1] The audit resulted in the recovery of $471,904 for 616 workers across the 234 businesses audited. The most common breach was an underpayment of hourly rates, followed by non-existent or inadequate employment records.

“72% of businesses had breached workplace laws”

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Domestic violence leave in Australia

Posted by | Articles, Dispute Resolution & Advocacy, HR Advice & Support | No Comments

In the employment law space, there has been growing debate on whether all Australian employees should have a minimum entitlement to take either paid or unpaid domestic violence leave. The debate was reinvigorated in March, when, as part of the four-yearly review of modern awards, the Fair Work Commission introduced 5 days’ unpaid domestic violence leave for all award-covered employees.

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What’s in a name: The effect of a position title on Modern Award coverage

Posted by | Articles, complaince, Contracts, HR Advice & Support, modern award, Terminations, Unfair Dismissals & Adverse Action, Training & Compliance | No Comments

It is a common misconception amongst employers that a senior position title and high income can exclude an employee from being covered by a modern award. Not so. Instead, employers must look to the principle purpose of the position the employee was performing to assess whether it is covered by the classifications of roles covered by the award.

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What are your business’ New Year’s workplace relations resolutions?

Posted by | Articles, Contracts, Discrimination & Bullying, Dispute Resolution & Advocacy, HR Advice & Support, Industrial Relations, Terminations, Unfair Dismissals & Adverse Action | No Comments

HRD Australia recently reported that the success rate of Australian employers in unfair dismissal cases has dropped below 40% for the first time – while these remain the claim of choice for employees, with an unfair dismissal claim lodged every three and a half minutes in Australia.1

We expect hot topics for workplaces will include managing poor performance and bullying and stress claims, avoiding award or NES breach claims (and the risk of huge new penalties) or discrimination claims.

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The Infamous Office Christmas Party: How to Celebrate the Silly Season Safely

Posted by | Articles, Christmas party | No Comments

When organising your office party this year, there are a few things to be mindful of. Your duty of care as an employer extends to the actions of your employees at a work-sponsored event, even if it held off-site or outside of office hours.

Ensuring a safe, fun and professional event requires ensuring responsible behaviour compliant with occupational health and safety standards and avoiding employees experiencing sexual harassment, discrimination, bullying or other inappropriate treatment.

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Performance and Conduct Issues for Employees Raising Mental Illness

Posted by | Articles, HR Advice & Support, Performance Management & Misconduct Investigations | No Comments

Around 45% of Australians aged between 16 and 85 will experience a mental illness in their lifetime, and 1 in 5 Australian adults will experience a mental illness in any given year.[1]  Therefore, it is very likely that from time to time an employer will need to performance manage an employee who is experiencing a mental illness.

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An interesting development in the Fair Work Commission’s Stop Bullying Jurisdiction

Posted by | Articles, Discrimination & Bullying, Terminations, Unfair Dismissals & Adverse Action | No Comments

In perhaps the most interesting development to date since the commencement of the Fair Work Commission’s (FWC) anti-bullying powers, Commissioner Hampton, the Panel Head of the FWC’s anti-bullying jurisdiction, has issued an interim order to restrain an employer from dismissing an employee for alleged misconduct until the tribunal determines the employee’s anti-bullying application.

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Lying and theft justifies termination of flight attendant

Posted by | Articles, Performance Management & Misconduct Investigations, Terminations, Unfair Dismissals & Adverse Action | No Comments

Qantas has succeeded in its appeal to undo the unfair dismissal finding for a flight attendant who stole alcohol and lied during the investigation. The FWC Full bench overturned the ruling of unfair dismissal in Qantas Airways Limited v David Dawson [2017] FWCFB 41, finding that Deputy President Lawrence had failed to take into account the Qantas employee’s dishonesty during the investigation into allegations of theft.

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Pay cut not redundancy

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Can a refusal to accept a pay cut result in a genuine redundancy? employers will need to ensure that before enacting any redundancy, there are genuine operational reasons underpinning the decision beyond mere reduction in salaries.

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The devil is in the detail: Devil Dog Pty Ltd v Cook [2017] WASC 27

Posted by | Articles, Restraints of Trade | No Comments

In the recent decision of Devil Dog Pty Ltd v Cook [2017] WASC 27, the Supreme Court of Western Australia granted an interim injunction to prevent a former employee from competing with his former employer’s business. The decision is a timely reminder on the importance of carefully drafting and considering restraint of trade clauses in commercial agreements.

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Employment lawyer with a briefcase

Choosing the Right Workplace Lawyer in WA

Posted by | Articles, Discrimination & Bullying, HR Advice & Support, Terminations, Unfair Dismissals & Adverse Action | No Comments

Employment law covers a broad range of complex legal issues affected by layers of common law and statute across state and federal jurisdictions. These legal issues begin in business set up or acquisition stage, with transmission of business, recruitment of new employees, establishing suitable contracts, and complying with awards and National Employment Standards – establishing the employment relationship.

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Employer Hotel Fined For Caretaker Sexually Assaulting Young Employee

Posted by | Articles, Discrimination & Bullying, Performance Management & Misconduct Investigations | No Comments

A female hotel employee in Queensland has been awarded $313,000 in damages for sexual harassment and assault she was subjected to in her bed by the hotel caretaker. The case rings a warning to employers that they need to take reasonable steps to prevent employees engaging in or being exposed to such conduct.

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Doing Business in Australia: What You Need to Know

Posted by | Articles, Doing Business in Australia | No Comments

Doing business in another country or jurisdiction can present unexpected difficulties and challenges. For foreign businesses looking to expand into Australia, complying with Australia’s industrial relations system can be particularly difficult.

However, ensuring that you meet your employment obligations and that you have sound employment practices in place is essential to the success of your Australian operations.

When does the Fair Work Act 2009 apply to your business or employees?

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employment lawyer at his desk

SME? How Employment Law Applies to You

Posted by | Articles, Contracts, Discrimination & Bullying, Industrial Relations | No Comments

The relationship between employer and employee is subject to a multitude of Australian state and federal laws and is key to the success of any business. Small and medium enterprises (SMEs) face a number of challenges when managing their employees. Many businesses lack a dedicated human resources department, leaving HR responsibilities to busy owners or senior managers.

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Employing “permanent” casuals: what are the benefits and risks for your business?

Posted by | Articles, Contracts, HR Advice & Support | No Comments

If employees are inappropriately classified as casuals, they may be able to bring claims against their employer for breaches of Modern Awards or the Fair Work Act 2009. They may also be able to claim that their employer has misrepresented their workplace rights. In these circumstances, employees will be entitled to seek compensation as well as penalties of up to $54,000 against the employer for each breach or misrepresentation.

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Cutting Costs Can Cost You More: The Cautionary Tale of Roussety v Castricum Brothers

Posted by | Articles, HR Advice & Support, Training & Compliance | No Comments

In the recent case of Joseph Roussety v Castricum Brothers Pty Ltd the Supreme Court of Victoria was called upon to consider an employee’s negligence claim for overwork causing psychiatric injury. This case serves as a salient reminder that an employer owes a duty to take reasonable care to avoid any foreseeable risk of injury arising from an employee’s circumstances of employment. In particular, it warns of the dangers of cost cutting without having regard to the effect on existing employees.

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MDC Legal Win for Employer Against Large Bonus Claims

Posted by | Articles, Contracts | No Comments

MDC Legal has successfully defended an employer against an employee’s claims for unpaid visa expenses and bonuses exceeding $200,000. The applicant, Mr Bradley, was employed by the respondent, Binder Group Pty Ltd, as their WA Industrial Sales Manager and later as its National Sales Manager from July 2011 to April 2015. After resigning from his employment, Mr Bradley brought proceedings in the Western Australian Industrial Relations Commission (Commission) against Binder Group alleging that he was owed contractual benefits. All of Mr Bradley’s claims were rejected by the Commission.

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Take Care When Making Employees on Parental Leave Redundant

Posted by | Articles, Business Restructures & Redundancies, Contracts, Terminations, Unfair Dismissals & Adverse Action | No Comments

In the recent case of Heraud v Roy Morgan Research Ltd [2016] FCCA 185, the Federal Circuit Court of Australia (FCCA) found that Roy Morgan Research Ltd (RMR) contravened provisions of the Fair Work Act (FW Act) by refusing an employee’s request for flexible working hours and making her redundant while she was on maternity leave.

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