Job kept after big night out

Job kept after big night out

The case of Puszka v Ryan Wilks [2019] FWC 1132 shows that after hours behaviour can have consequences for employment, although in this case the Fair Work Commission agreed that the employer’s dismissal of the employee was unfair and ordered the employee’s reinstatement.

The facts of the case were keenly disputed.

The only things agreed were that the employee:

1          Attended an after-hours function at a major client of the employer;

2          Was drunk, vomited and required assistance to get a taxi to take her home; and

3          Was summarily dismissed from her employment for serious misconduct about 2 weeks after her big night out.

The employee admitted being drunk to the point of vomiting and requiring assistance to leave the function but she contested that she had made disparaging remarks about her employer or had propositioned an employee of the major client.

The employer used the employee’s drunkenness, vomiting, and the disparaging remarks and sexual proposition as the basis for alleging serious misconduct to allow for instant dismissal.

Ultimately the Commission did not accept there were substance to the allegations of disparaging remarks or the sexual proposition.

There was evidence that the person said to have been propositioned denied it happened and that the employer knew this.

The employee conceded that her admitted behaviour had the potential to reflect of her employer’s business and she expressed remorse and embarrassment for her behaviour when drunk.

At the same time the Commission found that a single act of drunkenness while calling for some form of discipline from the employer was not a wilful attack of the employment relationship and the decision to dismiss could not stand.

Footnote: the employer lost a bid to stay the operation of the reinstatement order and the matter is on appeal to the full bench of the Fair Work Commission. The consequences of the big night out have not yet run the course.

For advice on the consequences of employees’ after hours behaviour contact our employment relations team on 03 9614 7111.

No one believed them

No one believed them

Imagine learning your baby daughter had died because she had swallowed a button battery, which could have been detected if only medical staff had listened to you.  

This is the tragic and heart-breaking experience of one family.

In early 2015, Bella, a lively and happy 14 month old baby, was taken to Sunshine Hospital four times in 19 days with her parents repeatedly telling doctors they thought she had swallowed something.  Despite her parents’ instinct that Bella was not right, doctors failed to listen to them.  She was sent home with a diagnosis of a urinary tract infection. On the fourth visit to emergency after Bella woke up covered in blood, an X-ray discovered a small lithium button battery lodged inside her.  By then it was too late.

An inquest before Coroner Caitlin English probed the safety of the batteries as well as Bella's care at Sunshine Hospital.

Greg Doran and Caron Easton of Nevett Ford acted for Bella’s family throughout the coronial process.  It was a tough, unrelenting experience, with the findings being delivered on 4 April 2019 to substantial media coverage.

Bewilderingly, the history that Bella may have swallowed something was not even recorded in her medical file.  The hospital in fact denied that Bella’s parents ever gave a history of her swallowing something.

The hospital also tried to create doubt about when Bella had swallowed the battery.

Finally, the hospital sought to silence Bella’s parents about the terrible events by arguing that an inquest hearing was unnecessary.

The work that Bella’s family and Nevett Ford put in ensured that a bright light was shone on Sunshine Hospital and its shortcomings in dealing with small children.

Coroner English found as facts both that Bella’s parents had given a history of her swallowing something and that the button battery was probably swallowed before her first visit to the hospital.

Outside the Coroners Court after the findings, Bella’s mother, Allison, issued a plea to other parents:

"You might think you're just a mum or a dad and not a medical professional.

"But you know your child better than anybody.  Make sure you voice your concerns, make sure you are being heard. Because it might just save your child's life."

Coroner English called for a safety crackdown on products that contain button batteries.

The ACCC estimates 20 children a week present to Australian emergency departments having swallowed or inserted a button battery.

After losing her daughter in such tragic circumstances, Allison is determined no other family should suffer in the same way.  She has launched a Facebook page "Bella's Footprints" to continue to raise awareness about the terrible effect button batteries can have if they are swallowed. 

Greg Doran a is a director of Nevett Ford who has practised in personal injury and associated law for more than 30 years.

Caron Easton is an associate at Nevett Ford practising in both family law and general litigation after a 20 year career as a small business operator.

Forget the Federal election; the only Labor I care about is Labour Hire!

Forget the Federal election; the only Labor I care about is Labour Hire!

Labour hire services agreements will be regulated and enforced in Victoria under the Labour Hire Licensing Act 2018 (Vic) from 30 October 2019.

 The types of Agreements to be regulated include for work to be performed in Victoria and arrangements made within Victoria for work to be performed outside Victoria.

 Labour hire service providers will be required to hold a valid licence in order to provide services in Victoria. The definition encompassing labour hire service providers is broad and all-encompassing and focuses on the arrangements between third party providers and host employers.

 A person will provide labour hire services if they supply one or more individuals to another person to perform work as part of a business of the host. This will apply regardless of whether a contract has been entered into between the Provider and the host, or whether the workers are provided directly or through intermediaries.

 A person will be deemed to be a worker for a provider if there is an arrangement in place between the worker and the provider, under which the provider will supply the worker to one or more persons to provide work and the host will be obliged to pay the worker for their work, either directly or through intermediaries. In addition, a person will be deemed to be a worker for the provider if there is an arrangement in place between the person and the provider, under which the provider recruits the person or places them to perform work with another host, including if they are recruited and/or placed as an independent contractor. The person will be deemed to be a worker regardless of whether they are an employee of the host or a contract has been entered into between the worker and provider.

 There are exceptions where the provider and the host are each part of an entity or a group of entities that carry on business collectively as one recognisable business. 

 To ensure that you and your business are ready for the labour hire changes coming into effect, contact the workplace relations team at Nevett Ford for guidance and assistance every step of the way on

(03) 9614 7111

Unpaid Leave and Continuous Service

Unpaid Leave and Continuous Service

As fires raged across parts of Australia this summer employees took leave from their work to fight them in volunteer fire brigades.

Unless they had an agreement with their employers this leave would have been unpaid.

What does taking unpaid leave mean for the concept of “continuous service” which is the basis for many rights and entitlements otherwise accruing to employees under the Fair Work Act?

For example, for employees to be entitled to parental leave they must have completed at least twelve months continuous service.

For employees to be entitled to the payment of redundancy on the termination of employment they must have completed at least twelve months continuous service.

For employees to be protected from unfair dismissal they must have completed at least six months continuous service or twelve months continuous service if the employer is a small business employer.

Unpaid leave generally means a break in continuous service for the calculation of benefits and entitlements under the Fair Work Act.

The one exception is community service leave, which is meant to cover volunteer firefighters.

If you would like advice about unpaid leave and continuous service and their application to your circumstances, please contact our experienced Workplace Relations team on (03) 9614 7111.

I quit. Now what do I do about this Restraint of Trade?

I quit. Now what do I do about this Restraint of Trade?

If you are employed in professional services, you will most likely have a post-employment restraint clause in your employment contract. So, what is it and what does it mean when the employment relationship ends.

A restraint of trade is a contractual clause that seeks to prevent employees from working for competitors, starting their own competitor businesses or taking customers or co-workers. 

There are five main types of clauses in contracts:

  • Anti-competition to prevent you from creating or joining a competitor;

  • Preventing the use of or disclosure of confidential information obtained in the course of employment e.g. pricing, contact lists;

  • Non-solicitation of suppliers;

  • Non-solicitation of customers or clients; and

  • Non-poaching of employees or contractors to leave the business. 

A restraint of trade will only be held to be enforceable by a Court if it is reasonable to protect the legitimate interests of a business without being contrary to the public interest. There is a thin line between protecting a business’ interests and being anti-competition. Restraints cannot prevent a person from earning a living; if they are too restrictive, they will not be upheld.

When determining whether a restraint is reasonable, Courts will look at:

  • The restraint period; for example, if you have clients on 12 month retainers, 12 months will be usually reasonable;

  • The restraint area; for example, if you only operate in Victoria, it is unreasonable for a restraint to operate throughout all of Australia; and

  • The competitive activity covered.

A restraint will not be enforced if it:

  • Protects your business from competition from employees who are simply good at their job or have a good reputation; or

  • Prevents employees from doing business with friends or family.

There are many factors to consider and more often than not, the enforceability of a restraint will depend on the individual circumstances of a case.

If you’ve been asked to sign a new employment contract containing a restraint clause or you have recently left your employment and worried about what this means for you, call one of the workplace relations lawyers at Nevett Ford for advice on (03) 9614 7111.


Redundancy v Unfair Dismissal

A recent decision of the Fair Work Commission McShane v Port of Newcastle [2019] FWC 177 has restated the principles around redundancy.

Mr McShane argued the Port of Newcastle’s decision to make his position redundant was not genuine and that as a result he had been unfairly dismissed.

Deputy President Saunders stated the test for redundancy was whether the job Mr McShane previously performed had survived the restructure, not whether the duties had survived in some form.

After analysing the facts relating to the Port of Newcastle’s decision, Deputy President Saunders found that no duties Mr McShane previously performed survived at all and that his role had been superseded by a new role for which he was not qualified.

It followed therefore that the decision to make Mr McShane redundant stood and that there had been no dismissal, which he could contest.

For further advice on whether a redundancy is genuine, contact our experienced Workplace Relations team on (03) 9614 7111.

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Two recent decisions of the Fair Work Commission have demonstrated the difficulty employees face if they do not lodge their unfair dismissal applications within the 21 day period.

In the first instance the employee was two years and two months late (Ellikuttige v Moonee Valley Racing Club [2017] FWC 4829) and in the other the employee was 21 days late (Michnik v Silver Chain [2017] FWC 4804).

Both decisions reviewed what “exceptional circumstances” mean in the context where the Fair Work Commission can extend the time in which to lodge an unfair dismissal application.

“Exceptional circumstances” is to be given its ordinary meaning.

For something to be exceptional it need not be unique, unprecedented or very rare but it needs to be something more than is regularly or routinely or normally encountered.

Both dismissed employees relied on stress for seeking an extension of time to lodge their unfair dismissal applications.

However, because stress is a routine reaction when people are dismissed from their employment this was not a factor that the Commission in both cases was prepared to accept could be “exceptional”.

For more information or advice on how to deal with extensions of time contact our workplace relations team.

Workplace Dismissal - Who do you believe?

But I’m telling the truth!

What happens when the parties to a case have varying accounts of what was said and done? Who is to be believed?

In the matter of Ashley Duddington v Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd, a former restaurant manager made an unfair dismissal claim against his former employer.

The parties, who were not legally represented, provided very different versions of the events that took place leading up to the termination.

Without any physical evidence to prove what actually happened, the responsibility fell on Deputy President Bull to establish the truth.

In his judgment, Deputy President Bull noted that he had significant difficulty with the employer’s evidence, which he described as “contradictory and evasive” and noted that clear answers were not provided to some of the questions asked.

As a consequence, Deputy President Bull made the decision to accept the evidence of the employee whenever the evidence of the parties was in conflict.  

The Commission found that the employee was unfairly dismissed without notice or a valid reason and made orders for each party to make submissions about the compensation to be awarded.

The best lesson to learn here is to put everything in writing! The Fair Work Commission is not bound by the rules of evidence, but help yourself and help your case and take notes of everything that is said and done when it comes to performance management and disciplinary matters.

If all else fails, you will need to rely on detailed submissions and oral evidence; this is where an experienced legal representative can help! If you are an employee or an employer in an unfair dismissal or general protections claim, call the Workplace Relations team at Nevett Ford on 9614 7111 to answer all your questions.


Reflections on the diverse and inclusive workplace

The former Sex Discrimination Commissioner Ms Elizabeth Broderick recently commented on diversity and inclusion in the workplace at a conference held by the Australian Human Resources Institute.

Here are some of the things she emphasised:

  1. If employees are to embrace change to make the workplace more diverse and inclusive then their employers need to lead the way.

  2. She urged the creation of safe spaces where employees could share their views in a respectful, empathetic setting that did not lead to recriminations.

  3. Don’t assume opponents of change have bad intentions. But they may see change as involving the loss of something that they have worked hard for and personally invested in.

  4. The diverse and inclusive workplace needs to deal with the perception, if not the fact, of loss of security, stability, belonging and rituals as well as the positive changes meant to encourage diversity and inclusion.

  5. She asked women who had been successful in challenging environments (“jocks in frocks”) whether they thought it was okay if their sisters or daughters had to go through the same experiences they did in order to succeed.

For further advice on strategies to make your workplace diverse and inclusive please contact our team of workplace lawyers at Nevett Ford

But do I HAVE to (make redundancy payments)?

Sing it with me, Bob Dylan: the times they are a changin’.

For one reason or another, your business is undergoing significant operational changes and you need to make some of your workforce redundant.

So, who do you make redundant, how do you do it properly and, most importantly, what do you have to pay them?

  1. Who you make redundant will depend on the reasons for the redundancy, as well as the size of your business and the nature of the restructure.

  2. The proper process and procedure to be followed will depend on the terms of the employment contract and/or applicable modern award or enterprise bargaining agreement. 

  3. Generally, you will not have to pay an employee redundancy pay in the following situations:

  • The employee was employed on a casual or fixed-term contract;

  • The employee has only been employed for less than 12 months; or

  • The employee was an independent contractor.

There are some exceptions to this rule and then some exceptions to those exceptions.

Also, those exceptions are not the only exceptions.

Put simply, redundancy can be incredibly complicated.

Get it right and get the experts to talk you through it.

Penalties of up to $54,000 for corporations and $10,800 apply to directors for breaching their redundancy obligations under the Fair Work Act 2009 (Cth) so it pays to pay up! (Though only when you have to, of course.)

Call the Workplace Relations team at Nevett Ford on (03) 9614 7111 and we’ll make it look easy.

Overworked and Underpaid: The reality behind George Calombaris’ Greek tragedy

In a brilliant piece of spin worthy of an election campaign, George Calombaris openly admitted to underpaying past and present employees over $2.9 million – and has maintained his positive public image.

From the papers to The Project, the popular Masterchef appeared everywhere, apologised for profiting from his workers and continued to accept bookings at his numerous Greek restaurants across Melbourne.

You would be forgiven for thinking that it’s all that easy – underpay, apologise, back to business as usual – but be warned, this is the exception, not the rule. 

Businesses that are found to breach the Fair Work Act 2009 are liable to penalties of up to $54,000 for corporations, per breach. This means that if you underpay 100 employees, you are liable to 100 lots of penalties. Directors also face penalties of upon $10,800 per breach.  

Last year, the Fair Work Ombudsman recovered more than $2.2 million dollars in penalties alone for underpaid employees.

For George Calombaris’ Made Establishment empire, the repayments will be made quickly and easily, as the investors in the business have continued to pledge their financial support for the company.

Other businesses are not so lucky and have had to enter into voluntary administration after being ordered to back-pay their workers.

If you are unsure of how much to pay your employees in order to fulfil your obligations under the relevant employment contract, modern award or enterprise bargaining agreement, talk to someone who knows the answer! Contact the workplace relations team at Nevett Ford for all your employment law questions on (03) 9614 7111.

Not only the hair was short but the pay was too

A chain of Melbourne based hairdressing salons has been obliged to enter into an enforceable undertaking with the Fair Work Ombudsman to avoid prosecution after the agency uncovered widespread underpayment of employees.

In mid-2016 two former employees approached the FWO claiming that they had not been paid accrued annual leave on termination of employment.

One of the employees also alleged that penalty rates had not been paid for work on Sundays and public holidays.

The investigation the FWO conducted found that numerous employees had been underpaid a total of $88,000.00 over an eighteen month period.

The employer behind Best Cuts and Colours and What’s Up Hair agreed, as part of the enforceable undertaking, to write letters of apology to each of its underpaid employees and make a “contrition payment” to Monash Oakleigh Legal Service of $10,000.

Because the employer cooperated in the investigation the FWO thought that the best way of ensuring the underpaid employees received their correct pay was by having the employer enter the enforceable undertaking rather than prosecuting.

This case demonstrates the importance of employers knowing and complying with their obligations under a modern award.

If you are an employer who has had an inquiry from the FWO we have the lawyers who can advise you through the process.

Unfair Dismissals and Penalties

The vast majority of applications for unfair dismissals are discontinued.

Generally, this means that employers and employees have reached agreement so that a formal decision or order of the Fair Work Commission is not required.

Where negotiation does not result in resolution, any order for reinstatement or the payment of compensation made by the Commission can have further consequences for an employer if it is not obeyed.

If you are an employer and ordered to pay $2,200 as compensation for a dismissal found to be unfair, you would be required to pay it even if you needed time to do so and even if you disagreed with the decision.

You would not put yourself in a position where the Fair Work Ombudsman successfully applied to the Federal Circuit Court for $47,000 worth of penalties because your failure to pay $2,200 was a breach of section 405 of the Fair Work Act 2009 (Cth).

This has happened and is a cautionary reminder to employers.

Annualised salary and award covered employees

An employer which offers employees contracts with annualised salaries to compensate for all entitlements to which they are entitled under an applicable award needs to beware.

The applicable award may provide that an employer must state in writing which provisions of the award will be satisfied by the payment of the annualised salary.

If the employment contract does not state what entitlements are covered, an employer may find itself facing a claim for overtime, allowances, penalty rates or annual leave loading.

Nevett Ford can assist in avoiding this problem by conducting “health checks” of employee contracts for award covered employees. 

Dirty talk costs a career

A police officer who was dismissed for serious misconduct for breaches of the New South Wales Police Force Harassment, Discrimination and Bullying Policy and Guidelines has failed in his attempt to have his employment reinstated: Torres v Commissioner of Police.

Serious misconduct was constituted mostly by Mr Torres asking junior colleagues personal and intrusive questions about sexual activity.

Mr Torres had an impressive twenty six years of service including a commendation for bravery.

This, however, was not able to save him.

His explanations that there was a culture of dirty talk where he worked and what he admitted to saying was meant as a joke were not accepted.

Workplaces must be safe for employees. 

Discussions that are sexually explicit and seen as sexually harassing cannot be tolerated.

In this case the employer could point to policy guidelines that made clear the rules and expectations in the workplace.

In our experience many employers do not have appropriate written policies and procedures in place and don’t have proper training to ensure that any policies are implemented.

Employers must educate their employees about how to conduct themselves at work and have clear policies that state what is in and what is out for conversation and behaviour.

Nevett Ford Melbourne lawyers can provide timely and proactive advice to employers on appropriate discipline and dismissal of employees based on misconduct in the workplace.

Doubt about status of casual employment

A recent decision of the Federal Circuit Court has cast doubt on whether casual employment is in fact that: Skene v WorkPac Pty Ltd [2016] FCCA 3035.

Mr Skene was employed as a dump truck operator by WorkPac, a labour hire company, which supplies workers to mines. His contract of employment with WorkPac designated him as a casual employee and he was paid a fixed hourly rate.

During his employment with WorkPac he had two placements at mines in Queensland. The second mine operator removed him from the mine and he did no further work for WorkPac.

After his employment terminated Mr Skene issued proceedings against WorkPac seeking payment of accrued annual leave, other consequential entitlements and pecuniary penalties. 

Judge Jarrett found that, according to his contract of employment with WorkPac, Mr Skene was a casual employee. This, however, did not mean that Mr Skene could not be entitled to annual leave and other entitlements. Although section 86 of the Fair Work Act states that provisions relating to annual leave apply other than to casual employees Mr Skene needed only to establish that his employment was something other than casual to receive entitlements associated with permanent employment.

Judge Jarrett identified six factors that weighed in favour of Mr Skene’s employment being other than casual:

  1. It was regular and predictable under 7 days on and 7 days off rosters set 12 months in advance;

  2. Apart from one short period arranged with the second mine owner, was continuous;

  3. It was facilitated by travel and accommodation provided at no cost to him;

  4. The FIFO arrangement was inconsistent with the notion that Mr Skene could elect the days on which he worked without making the necessary arrangements with the mine owner;

  5. There was an expectation arising under the contract of employment between him and WorkPac that he would be available according to the roster provided to him until the assignment was complete; and

  6. The hours of work were regular and certain as demonstrated by his pay slips.

    As against that Judge Jarrett found three factors that weighed in favour of Mr Skene being a casual employee:

  7. He was paid by the hour and had to submit weekly time sheets;

  8. His employment was terminable on one hour’s notice; and

  9. WorkPac designated his employment as casual and Mr Skene was aware of and accepted that.

Ultimately, Judge Jarrett found that the essence of casual employment, which 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, was missing in the employment relationship between Mr Skene and WorkPac.

As the employment was something other than casual, Mr Skene became entitled to annual leave, which is not a benefit of casual employment.

Although the decision could be said to be limited to its particular circumstances, it might be seen as applying in circumstances where employer and employee believe that casual employment applies but in reality given the certainty of hours and absence of choice as to when an employee works, the employment relationship is in fact other than casual.

Unfair Dismissal – Your worker has been with you for HOW long?

How long does an employee have to be employed before they’re eligible to make an unfair dismissal claim?  The short answer is “that depends on the size of your business.”  If you’re a small business, the employee will have 12 months before they can claim eligibility. If you employ more than twelve employees, they will only have six months. But how is that six months calculated?

In Emma Wells v ABC Blinds & Awnings [2016] FWC 8260 the worker was employed between 4 February 2016 and 4 August 2016. She was originally engaged as a casual employee for the first three months and was later offered a permanent position, which she retained for another three months.

It’s important to note that during her casual employment, the worker worked regularly on a roster based system and took two days of unpaid leave within this period. 

The worker was sacked shortly after arriving at work on 4 August 2016 – exactly six months after her first day of work with the Employer.

The Employer argued that 1) the Applicant’s service as casual employee should not be included when calculating continuous service and 2) if the casual employment were deemed to be included, her continuous service would not add up to six months as she had taken two days off during that time. 

The Fair Work Commission found that the Applicant’s employment was regular and systematic and therefore it could be included as part of her continuous service.

However, in light of the unpaid leave taken during her casual employment, the Applicant was found not to have served the minimum employment period, meaning she was not a person protected from unfair dismissal and her application was dismissed.  

So what are the lessons here?

  1. A worker’s casual employment may be classified as continuous service for the purposes of the unfair dismissal laws depending on the regularity of their work schedule and also their expectations of future employment.

  2. Any unpaid leave taken during casual employment will not break an employee’s continuous service, but it will also not contribute their continuous service with an employer.

If this all sounds too confusing and overwhelming, never fear! Call one of the workplace relations lawyers at Nevett Ford on (03) 9614 7111 for advice and assistance on all of your employment law matters.