By Gemma Little, Associate
What can an employer do if an employee makes vexatious or baseless complaints in the pursuit of some ulterior purpose? These complaints might be made within the business, for example to a supervisor, HR or the Board, or externally, for example by way of a bullying application to the Fair Work Commission.
By Madeleine Brown, Associate
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.
By Nikita Barsby, Special Counsel and Madeleine Brown, Associate
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.
By Nikita Barsby, Special Counsel and Lauren Wright, Lawyer
The Fair Work Ombudsman (FWO) recently conducted an audit of businesses throughout the eastern states of Australia which 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.
By Lauren Hodson, Law Clerk
The gender pay gap in Australia currently sits at a staggering 17.3% in base remuneration (in favour of men), which increases to 22.4% when looking at total remuneration.[1] This equates to approximately $16,183 p/a and $26,527 p/a respectively.
By Lauren Wright, Lawyer
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.
By Mark Cox, Director and Ruth Collins, Lawyer
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.
By Mark Cox, Director and Lauren Wright, Lawyer
LinkedIn is one example of how new technologies and social media “disruptors” are intercepting with the workplace in ways that challenge our traditional notions of employment rights and obligations.
By Nicholas Parkinson, Lawyer
Under the Fair Work Act 2009 and the Fair Work Regulations 2009, Australian employers are required to keep records in relation to each of their employees.
By Nikita Barsby, Special Counsel
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.
By Nikita Barsby, Special Counsel
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.
By MDC Legal
A well drafted employment contract, complemented by a professionally prepared Employee Handbook and Management Guide, provides a solid foundation for a positive employment relationship, and minimises the risk of legal claims.
By Ruth Collins, Lawyer
On 23 February 2017 the Full Bench of the Fair Work Commission (FWC) handed down a significant decision following a review of weekend and public holiday penalty rates across the following six modern awards.
By Conor Fahey, Lawyer
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.
By MDC Legal
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.
By Conor Fahey, Lawyer
Formal written warnings and structured performance improvement plans are not an essential requirement to prove that a dismissal, based on poor performance, is fair.
By MDC Legal
Sticking to what you know when obtaining new employment may backfire when a client-specific restraint that protects an employer’s legitimate interest is likely to be enforceable and valid. It may be appropriate to widen the job search, and seek legal advice on your options.
By MDC Legal
AWOL employees should not get complacent: although it’s the employer that must act positively, employees will need to satisfy the employer that they are absent for a reasonable cause, otherwise they risk their employment being terminated.
By Ruth Collins, Lawyer
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.
By Mark Cox, Director and Joanna Knoth, Senior Associate
In order to survive, many businesses have to restructure their workplace. This often results in reducing surplus assets, addressing inefficiencies, and cutting or removing shifts. The redundancies that result from this process present a significant legal risk to employers.
By Mark Cox, Director & Joanna Knoth, Senior Associate
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.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Our specialist workplace lawyers provide four great examples of what workplace discrimination looks like.
By MDC Legal
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.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Unfair dismissal occurs when an employee’s dismissal from employment is harsh, unjust or unreasonable. Those who are unfairly dismissed may be eligible to receive compensation by making an unfair dismissal claim. In a small number of cases they may get an order for reinstatement to their former job.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Restraints of trade generally involve preventing employees and contractors from competing with a business during and after their employment.
By Nicholas Parkinson, Lawyer
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?
By Conor Fahey, Lawyer
In some cases, it can be difficult to determine if a worker is an employee or an independent contractor, because it is often the case that some of the relevant indicia may point towards an employment relationship, while other indicia may point to an independent contractor relationship.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Sometimes employers want to hire an employee for a short or specific amount of time. This could be for a short-term project or for work that is seasonal in nature. In these cases, it is important to know what kind of employment contract is best for the situation.
By Mark Cox, Director and Joanna Knoth, Senior Associate
What an employee says and does on social media, including outside work time, can have an adverse effect on the business they work for or the colleagues they work with.
By MDC Legal
This decision highlights the dangers for companies and their owners or directors misrepresenting to individuals that they will be engaged as contractors when they in fact are employees.
By Mark Cox, Director and Joanna Knoth, Senior Associate
We talk about four valid reasons to terminate an employee, including misconduct, genuine redundancy, poor performance and incapacity.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Good employment contracts are essential to the success of any business and care is needed to ensure they comply with various applicable industrial laws. The employment contract is an agreement between an employer and an employee that sets out the obligations and rights of each party.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Dealing with an unfair dismissal claim requires an understanding of employment law. Get legal advice from an employment lawyer soon as possible.
By MDC Legal
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.
By Nicholas Parkinson, Lawyer
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.
By Ruth Collins, Lawyer
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.
By Ruth Collins, Lawyer
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.
By MDC Legal
Ms Heraud went on maternity leave in September 2013. She was due to return to her role in a senior position in July 2014. Meanwhile, Roy Morgan had a revenue downturn leading to a restructure of its operations, causing Ms Heraud’s role to be made redundant.
By MDC Legal
Not so long ago, there was a clear line between work and play – between conduct at work and employees’ private lives, with the latter being none of the employer’s business. Now, due to advances in technology (particularly information technology), the expansive reach of social media, and because employees are increasingly working from anywhere, the boundary between work life and private life has blurred.
By Ruth Collins, Lawyer and Jessie Poon, Lawyer
The recent unfair dismissal case of Michael Treen v Adelaide Services Alliance T/A Allwater JV [2016] FWC 2737 (Treen) highlights the need for employers to be consistent in their disciplinary action.
By Nikita Barsby, Special Counsel
In November 2015, Mark Cox and Nikita Barsby presented this topic to lawyers and human resources professionals at Legalwise’s seminar: “Workplace Law – A Brave New World for Employers.”
By Nikita Barsby, Special Counsel
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.
By Nicholas Parkinson, Lawyer
A recent study1 of 97 public and private sector employers in Australia found that 40% of all personal leave was taken on Mondays, which is double any other day. 45% of employers surveyed believed that employees were absent on personal leave because they were “chucking a sickie”.
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