Misconduct in the workplace can be a tricky matter for employers to deal with, which is often made more difficult due to Christmas shut downs and staff annual leave. There are 5 steps that an employer should consider when investigating misconduct and deciding to take disciplinary action to mitigate the risk that an employee (either the person alleged to have engaged in misconduct, or the person on the receiving end of that conduct) will mount legal claims.
HR Advice & Support Archives - MDC Legal
Some employees may see the Christmas period as an opportunity to focus more on festive season activities and less on work. Employees may spend excessive time away from the office, having lunch or Christmas shopping. Other employees may spend excessive time online, shopping for Christmas presents or planning Christmas activities, or excessive time decorating the office. These types of behaviours can be difficult for employers to manage, without appearing Grinch-like and while still ensuring staff morale remains positive over the busy Christmas period.
The lead up to Christmas is often a busy time, with many employers managing extended trading hours or trying to finalise projects or tasks before the holidays. This may result in employees being required to work longer hours or on weekends.
Annual leave over the Christmas period can be difficult to manage. For some employers, the Christmas period may be a period of slow trade. For others, it may be the busiest time of the year, requiring all hands on deck.
As we rapidly approach the end of the year, the office Christmas party can be cause for concern for many employers. There are two key issues that employers should turn their mind to when planning their staff Christmas party.
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.
WorkPac Pty Ltd v Skene  FCAFC 131
The Full Court of the Federal Court of Australia has rejected WorkPac’s argument that the “industrial meaning” of the term “casual employee” has been incorporated into the Fair Work Act 2009 (Cth) (the Act) for the purpose of the National Employment Standards (NES).
Instead, the Court held the essence of the casual employment relationship is the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”.
Whether an employee is a “casual employee” should be determined by looking at indicia of casual employment, the conduct of the parties and the real substance, practical reality and true nature of the relationship.
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. 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”
The winter months often bring an increase in employees’ use of personal leave, primarily due to illness. An employee’s brief and temporary absence, whether due to illness or even injury, supported by adequate medical evidence, can usually be managed by the employer without issue.
However, difficulty and uncertainty arise where an employee takes extended personal leave with medical evidence that has little or no detail on the illness or injury suffered, or which offers no foreseeable return to work date. An employee’s extended absence can pose significant issues for the management and operation of a business. Navigating this situation can become increasingly complex if an employee has taken personal leave in response to a disciplinary or performance management process.
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.
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.
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.
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
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.
In a recent decision of the Federal Circuit Court an external accountant who advised a business on its employee arrangements was held liable under the accessorial provisions of the Fair Work Act. This decision is a red flag to external advisors who are closely involved with HR, payroll and employee entitlements of employer businesses.
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. 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.
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.
How “discretionary” are discretionary bonuses? Recent lessons from Crowe Horwath (Aust) Pty Ltd v Loone  VSC 163
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
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.
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.
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.
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.
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.
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”.