Jun 28 2021

Relocating Employees

By Anderson Gray Lawyers | Workplace Rights and Entitlements

Does an employer have the right to relocate its employees, and what does a reasonable relocation look like?

This question would need to be answered on a case-by-case basis, however, there are some key factors that courts have looked at when determining whether the relocation of an employee is considered reasonable or not, including, but not limited to:

whether there is a clause in the contract of employment in relation to relocation;
whether the location of the employees’ role is an implied element of the contract of employment;
the distance between the two locations;
the employees’ family or career responsibilities;
the cost or financial imposition created by the proposed relocation;
the employer’s efforts to accommodate the employee in transitioning; and
disruption to the personal life of the employee and any inconvenience suffered as a result.

Case example: In the 2004 case of Han Jian Liu v NHP Electrical Engineering Products Pty Ltd , NHP proposed to close down their facility in Richmond and relocate all employees employed at this location to a Laverton factory. NHP offered to cover relocation costs and offered flexible working hours for transitioning employees. Han’s employment contract expressly stated that his place of work was in Richmond.

The Australian Industrial Relations Commission found that the requirement for Han to relocate resulted in a repudiation of his employment contract as NHP no longer required his role to be performed in Richmond by anyone.
Due to Han’s family responsibilities, the role offered to him at Laverton was found not to be comparable nor acceptable for him.
The role at Laverton was considered to be a new contract of employment between Han and NHP, which Han was unable to perform because of the additional distance and travel time required and the adverse impact on his family responsibilities, and consequently, was not considered reasonable alternative employment.
It was found that Han’s position, which was at the Richmond facility, was redundant and he was eligible to receive redundancy pay.

Takeaways:

if a contract of employment is silent on the location of work, the Courts will look to see if there was an implied location in the employment contract and/or if the proposed relocation is reasonable. Factors such as those outlined above may be taken into consideration when making this determination;
a proposed relocation of employment location could potentially trigger redundancies.

If you believe that you have been unfairly relocated, or if you would like legal advice on a possible breach of your employment contract, please contact Anderson Gray Lawyers on 1300 851 430.

May 10 2021

Mandatory COVID Vaccinations – Employers Can Try But No Supply

By Anderson Gray Lawyers | Workplace Rights and Entitlements

At the start of the vaccination rollout, resentment and hostility abounded in the public comment pages of news sources at the mention of the possibility of employers making a covid vaccination mandatory for employees. There was some highly publicised debate about the legality of such a move particularly as it remains untested in a court of law. No consensus was reached.

At present, all Covid vaccinations are voluntary, though the Federal Government does have the power to make them mandatory for all persons, employed or not.

Now and into the near future, it would be a foolhardy employer who tried to impose a mandatory vaccination policy on employees as the current limited supply of vaccinations, in conjunction with the Federal Government’s phased rollout plan, quite simply prevents employees from complying with such a requirement.

But, the situation is likely to change, if and when vaccination availability stabilises. At this time, it is probable some employers may take the step of determining employment and employability on the basis of a covid vaccination. The legal basis for taking such action could be made under workplace health and safety laws where both an employer and employee have a duty to ensure they take all reasonable steps to ensure a safe work environment.

It is more than likely that the prevention of transmission of a highly communicable disease to work colleagues or other persons that employees interact with, by way of vaccination, could be considered a reasonable step in providing a safe working environment. It is also more than likely that preventing the contraction of the disease would be considered a reasonable step by an employee to take care of their own health and safety. It may also give employers and employees some basis of protection from any potential negligence claims.

For existing employees, employers could incorporate this requirement by amending their policies or for new employees by inserting it as a requirement in a contract of employment. Of course, there would be no issue for any person who has had the vaccination.

An issue would only arise if an employee or potential employee decided that they did not want to have the vaccination or could not for legitimate reasons have the vaccination. There are already certain industries or sectors that have mandatory vaccinations requirements for employment with exemptions in certain circumstances. It is thought that if a Covid vaccination is mandated for a particular industry or sector, then the existing types of exemptions would be applied, the most common being on certified medical grounds, but only time will tell if this occurs.

Employees who refuse vaccination and are penalised by an employer may have recourse against the employer if the directive to get vaccinated does not fall within a lawful or reasonable directive as well as provision within the various state anti-discrimination acts and the federal human rights act which in summary provide that a person shall not be subjected to medical treatment without their free consent. There may also be some recourse on the grounds of freedom of thought, conscience, religion and belief.

There is no one size fits all legal perspective as to the question of mandatory covid vaccination in employment. It will always come down to the unique facts and circumstances of a particular situation in conjunction with a thorough assessment of the rights and obligations of both the employer and employee.

Hopefully this situation doesn’t arise for you, but we are always here to assist if the need arises.
If you believe you have been unfairly treated at work, discriminated against, harassed or unfairly dismissed you can contact us for a free assessment of your legal situation. We take the time to hear your story and help you work out if you have a legitimate claim. We can then offer a variety of fee options to suit your situation which may include No Win, No Fee or Fixed Fee arrangements.

May 10 2021

Domestic and Family Violence Prevention Month

By Anderson Gray Lawyers | Workplace Rights and Entitlements

Domestic and Family Violence Prevention Month is held each year during the month of May to raise awareness about domestic and family violence.

Domestic violence is a significant issue in Australia that can negatively affect many individuals, families, children and the broader community.

The Australian Bureau of Statics (ABS) 2016 Personal Safety Survey (PSS) indicates that 1 in 6 women (1.6 million) and 1 in 16 men (548,000) have experienced physical or sexual violence by a current or previous partner since the age of 15.

In 2019, one in three homicide offences and sexual assaults recorded by the police were family and domestic related.

These figures are alarmingly high. However, these are just cases that have been reported. Unfortunately, many cases of domestic violence remain unreported due to fear and trauma. This is why it is important for people to be aware of the effects that domestic violence has and to encourage survivors, not victims, of domestic violence to report it.

If you are experiencing family and domestic violence or you know someone that is, then you should contact a domestic violence support service for advice.

Family and Domestic Violence Leave

Domestic violence is not only a community issue but also a workplace issue, which has a real impact on employees and employers.

Under the Fair Work Act 2009 (Cth), all employees (full-time, part-time and casuals) are entitled to 5 days unpaid family and domestic violence leave in a 12 month period.

An employee may take unpaid family and domestic violence leave if:

they are experiencing family and domestic violence;
they need to do something to deal with the impact of the family and domestic violence; and
it is impractical for them to do that thing outside their ordinary hours of work.

Family and domestic violence leave does not accumulate from year to year. Therefore, any unused leave will not roll over to the following year.

An employer and employee may agree for an employee to take more than 5 days of unpaid leave to deal wit the impact of family and domestic violence.

What is family and domestic violence?

Family and domestic violence can occur in many different ways. It can include physical, sexual, emotional, psychological or financial (withholding money) abuse.

However, for the purposes of the Fair Work Act, family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative that:

seeks to coerce or control the employee; or
causes the employee harm or to be fearful.

Close Relative

A close relative of the employee is a person who:

is a member of the employee’s immediate family, being:
- a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
is related to the employee according to Aboriginal or Torres Strait Islander kinship rule.

If you are seeking advice regarding domestic violence leave, contact Anderson Gray Lawyers to assist you with your enquiry.

Oct 29 2020

Changes to JobKeeper: What do Employees Need to Know?

By Anderson Gray Lawyers | Workplace Rights and Entitlements

On 28 September 2020, a number of changes to the JobKeeper scheme came into effect. JobKeeper is a wage supplement that is paid by the Federal Government directly to employers who then have an obligation to pass that supplement onto the employee. Employers need to demonstrate that they have had or anticipate to have a drop in revenue (usually 30%, but that can vary depending on the type of body) to qualify for JobKeeper.

Original JobKeeper

The original JobKeeper scheme was set up hastily in response to forced closures of businesses to deal with the coronavirus pandemic. Employers who qualified for the scheme had a wage supplement of $1,500 per fortnight paid to them per eligible employee. Eligible employees were full-time, part-time and regular and systemic casual employees who had been employed for one (1) year or more, and who were employed at 1 March 2020.

The effect of the JobKeeper scheme, was that businesses that qualified would have eligible employees wage subsidised no matter whether the employee was stood down, on reduced hours or working their normal hours. Importantly, the original JobKeeper had a ‘one-sized fits all’ approach, where every eligible employee’s wage was subsidised to the value of $1,500 per fortnight. This occasionally resulted in employees who had never actually earned $1,500 being paid $1,500 per fortnight as a result of the JobKeeper scheme. Importantly, if employees worked hours that entitled them to be paid more than $1,500 under a contract of employment, modern award, or enterprise agreement, the employer had to pay them the correct rate of pay pursuant to the relevant agreement.

The JobKeeper scheme also enables employers to change the terms and conditions of an employee’s employment in ways that they were not able to before the JobKeeper scheme. For example, employers were able to stand-down employees with more certainty and clarity than they would have but for the JobKeeper scheme. Employers could also direct employers to take leave in certain circumstances and direct employees to perform work that was different from their employment prior to the JobKeeper scheme. These are known as ‘JobKeeper enabling directions’ and most of these will stay in place with the new JobKeeper. It’s important to note that a JobKeeper enabling direction must be ‘reasonable’ and can be challenged in the Fair Work Commission.

JobKeeper 2

The changes to JobKeeper predominately amend the amount of the wage subsidy that will be provided to the employer for eligible employees. There is no longer a “one-sized fits all” approach. Instead, the following rates will apply:

From 29 September 2020 to 3 January 2021:

$1,200 payment per fortnight for all eligible employees whose normal working hours are 20 hours or more per week; and

$750 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

From 4 January 2021 until 28 March 2021, the payment rates will be further decreased to:

$1,000 payment per fortnight for employees whose normal working hours are 20 hours or more per week; and

$650 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

In determining an employee’s ‘normal working hours’ an employer must look at the average hours the employee worked in the four (4) weeks prior to 1 March 2020.

It is important for employees to be aware that this may result in a change in their rates of pay. For example, a full-time employee who is stood down and receiving the only the JobKeeper supplement of $1,500 per fortnight from their employer can now expect to receive $1,200 per fortnight (less any tax). For employees who worked less than 20 hours per week prior to 1 March 2020, they can expect a significant change per fornight; from $1,500 to $750.

Employees should understand that their employer may not continue to receive JobKeeper after 28 September 2020. There are more stringent tests in place for employer’s eligibility. If your employer is no longer receiving JobKeeper, then JobKeeper enabled directions and stand-downs may no longer be lawful and you employer will no longer be receiving a wage subsidy in relation to your employment. Further, employers will no longer be able to direct employees to take annual leave under the new JobKeeper scheme.

Finally, employees should be keep in mind that certain employers, known as ‘legacy employers’ will be able to make JobKeeper enabled directions in relation to stand down and conditions of work, if they meet certain criteria. What this means, is that your employer may not receive the wage subsidy, but may still be able to change your employment in ways it could not lawfully do prior to the JobKeeper scheme.

Need advice on workplace rights and entitlements? Contact Anderson Gray fo rmore infomation.

Oct 20 2020

Personal Wellbeing at Work & Working from Home During a Pandemic

By Anderson Gray Lawyers | Workplace Rights and Entitlements

There is no denying that the COVID-19 pandemic has demanded a more flexible side from all of us. For most employees, this has meant not only a physical change in their working environment, but also a mental and social one. Employees who have remained attending workplaces, although potentially accompanied by a few colleagues, may find themselves in more isolating positions. In addition, and perhaps even more obviously isolated, are employees who are working from home and live alone. Employees working from home face alternate challenges and distractions compared to those in their usual working environment. Some homes may be places where employees are surrounded by extended family, including children or elderly members, or people who may not be the best company to be around.

It is not unusual that as a result of the pandemic, not only work lives but many aspects of employee’s lives have been impacted. This is a time for employees to communicate with their employers about how their circumstances are changing and how they are coping, what they need from their employer and how they can be supported remotely.

Employees should be open and honest about concerns, struggles or positive points that they find have influenced them or their work. This communication will influence employees’ work lives moving forward, including coming out of this pandemic time. Employees should not be disheartened if they are feeling a somewhat off-balance or uncertain as they and their colleagues likely adapt and respond to situations in different ways.

Employee mental health and wellbeing is just as important as physical health. Employees should not hesitate to reach out and ask for help, or just check in and have a chat with each other. Some employees may already be in a situation where they are living with mental illness or may experience an exacerbation of their illness due to changes in their environment or circumstances as a result of the pandemic, and it is important to reflect on these aspects.

Some pointers to keeping conscious of your health and wellbeing as an employee:

Create a new routine for yourself that adjusts to your new working environment;
Get out of the house for fresh air and move your body as often as you can around work, as this is likely greatly lacking, particularly for those working from home;
Separate your work and home spaces, where possible, and ensure you completely switch off from work at the end of your work day

Take away: Just because the workplace may be an employee’s home or look a bit different to how it used to, this does not take away from the employer’s obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have concerns about workplace practices and procedures that could be affecting your wellbeing, contact the Anderson Gray team today.

Oct 08 2020

Physical Safety at Work & Working From Home During a Pandemic

By Anderson Gray Lawyers | Workplace Rights and Entitlements

Work is a huge part of every person’s life. Since early 2020, thousands of employees have been affected by the COVID-19 pandemic. There has been a lot of adaptation, and quickly, across the employment landscape.

Work health and safety obligations and standards existed prior to the pandemic and will remain once it has passed. However, what those obligations and standards look like has had to change. This is due to the fact that, for most of us, the pandemic has changed the way we live and work. Each employee’s experience differs for many reasons, including where they live, their type of work and their personal circumstances. For some, it has meant working remotely, entering into an altered and unfamiliar working environment or managing work and care responsibilities.

At Work
Employees should be aware of what policies and procedures are in place at their workplace and any adaptations made in response to the pandemic, or as a result of government regulations. Employees should be notified by their employers, and if not, they should enquire, as to what measures have been implemented into the workplace in response to the pandemic, in order to be able to remain compliant with the government and their employer’s expectations.

Safe work practices for employees in the workplace include:

Ensuring they are provided with what is necessary to wash their hands;
Ensuring they are provided with hand sanitizer;
Ensuring their work environment allows for social distancing;
Ensuring the physical layout of the workplace or work routine is amended to ensure minimal physical contact;
Ensuring, if necessary, that masks and gloves are available
Ensuring that they have a discussion with their employer regarding travelling to and from work, including whether this means taking public transport, or if alternative options need to be considered i.e. working from home.

Working From Home
For most employees, where the industry permits, working from home has been a reality for the majority of the time since early 2020. Working from home can have both negative and positive consequences on employees and their work. Employees should ensure that, as they are physically and socially distanced from their usual workplace environment and colleagues, that they remain in regular contact with their employer and colleagues. Communication becomes even more paramount in these circumstances.

Some safe work practices for employees working from home include:

Ensuring they set boundaries around routine to have a break between work and home life
Ensuring they have access to resources that may not be readily available at their home, including stationary, headsets, office furniture etc;
Ensuring, if relevant, that they have flexibility around care responsibilities and work tasks and hours

Take away: Employees have a level of responsibility for their physical health and wellbeing as well and should practice good hygiene, social distancing and staying away from others if unwell. However, in the workplace, employers have an obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have a concern about your physical safety at work and would like advice, contact the team at Anderson Gray today.

Sep 07 2020

Not Considering Jobkeeper Meant Redundancy Was Not Genuine

By Anderson Gray Lawyers | Unfair Dismissal

A recent decision of the Fair Work Commission (the Comimssion) has noted an employer’s lack of consideration for accessing the Jobkeeper scheme a contributor to the unfair dismissal of their employee.

Although the Jobkeeper scheme is still relatively new, there have now been a number of cases in the Commission regarding whether an employer is obliged to take Jobkeeper into consideration, including applying for it, prior to terminating an employees employment. As it stands, there is no positive obligation on employers to do so prior to termination of an employees employment.

In the recent case of Browne v MySharedServices an employer terminated an employee’s employment by reason of redundancy directly related to the COVID-19 pandemic.

The Commission considered whether the redundancy was a genuine redundancy in accordance with the relevant criteria pursuant to the Fair Work Act. The Commission found that:

the employer no longer required the employee’s role to be performed by anyone because of changes in the operational requirements of the business;
the employer failed to meet its consultation obligations under the relevant Modern Award to consult with the employee;
therefore, the termination was not a case of genuine redundancy as the consultation requirement was not met by the employer

Next, the Commission considered whether the employee had been unfairly dismissed. The Commission found that the employee was unfairly dismissed, and cited that one of the reasons for this decision was that the Jobkeeper scheme had been announced the week prior to the employee’s termination, and, that the employer’s lack of understanding as to the operation of Jobkeeper was not sufficient for them not to take it into consideration, as its purpose was to minimise job loss and redundancies.

Further, the Commission said that the employee may have offered to take leave, if consultation requirements had been met, until it was known how Jobkeeper would operate and if the employer would be eligible for it.

Take aways:

although this decision does not change the fact that there is no positive obligation on employers to take Jobkeeper into consideration, or apply for it, in an effort to minimise job loss and reduce redundancies, it does highlight, once again, the importance of consultation;
if proper consultation is not carried out with an employee, then this may mean that their dismissal is not a case of genuine redundancy and was harsh, unjust and/or unreasonable and therefore unfair

Need help with unfair dismissal? Contact Anderson Gray Lawyers.

Jun 17 2020

Workplace Consultation–is it Required? Redundancy and Stand Down

By Anderson Gray Lawyers | Unfair Dismissal

When is an employer obligated to consult?

The obligation for an employer to consult with its employees about major workplace change and/or changes to rosters or hours of work, are provided for in all modern awards and enterprise agreements.

Consultation is required where an employer has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have a significant effect on employees.

Significant effects on employees includes:

termination of employment;
major changes in the composition, operation or size of the employer’s workforce or in the skills required;
loss of, or reduction in, job or promotion opportunities;
loss of, or reduction in, job tenure;
alteration of hours of work;
the need for employees to be retrained or transferred to other work or locations; or
job restructuring.

An employer is also obligated to consult in circumstances where they propose to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.

What does consult mean?

Once the employer has made a definite decision to make a major change, then they must:

give notice of the changes to all employees who may be affected by them and their representatives (if any);
discuss with the affected employees and their representatives (if any):

the introduction of the changes;
their likely effect on employees; and
measures to avoid or reduce the adverse effects of the changes on employees; and

commence discussions as soon as practicable after the definite decision has been made.

For the purpose of the consultation discussions, the employer must give, in writing, to the affected employees and their representatives (if any) all relevant information about the changes including their nature, their expected effect on employees, and any other matters likely to affect employees.

During the consultation process the employee is not required to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

The employer is obligated to promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussions during the consultation process.

Redundancy

Section 531 of the Fair Work Act 2009 (Cth) provides that an employer who has decided to dismiss 15 or more employees by way of redundancy, then then that employer is required to notify and consult with each registered employee association (i.e. unions) of which any of the employees are a member of.

The employer is required to provide unions with the notice and an opportunity to consult:

as soon as practicable after making the decision; and

before dismissing an employee in accordance with the decision.

If an employer is obligated to consult about redundancy and fails to do so, then they may be at risk of an unfair dismissal application being made against them. It will not be a case of genuine redundancy if an employer does not comply with its obligation in a modern award or enterprise agreement to consult about redundancy.

Before making the decision to terminate an employee on the grounds of redundancy, an employer is required to genuinely consult with the affected employees. Consultation is not considered to be genuine if the employer simply provides an employee perfunctory advice on what is about to happen. An employee must be provided with an opportunity to influence the decision maker before the dismissal is affected.

Stand down of employees

Section 524(1) of the Fair Work Act 2009 (Cth) provides that an employer may stand down an employee without pay during a period where the employee cannot be usefully employed because of one of the following circumstances:

industrial action (other than industrial action organised or engaged in by the employer);

a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or

a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

An employer may not stand down an employee under section 524(1) of the Fair Work Act if:

an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of one of the above mentioned circumstances.

An enterprise agreement or a contract of employment may outline additional requirements that an employer be obligated to perform before standing down an employee. For example, the employer may be required to provide notice and/or consult with the affected employees.

If such a term exists, then the employer is obligated to consult with the affected employee. So, it is important to review the terms of your enterprise agreement and/or contract employment and identify if there is a stand down provision that applies to you.

Unfortunately, no modern award provides for a stand down.

If you have any questions or require advice in relation to workplace consultation, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

May 27 2020

Is Casual Employment Really Casual Employment?

By Anderson Gray Lawyers | Workplace Rights and Entitlements

A recent decision of the Federal Court has blurred the lines between permanent and casual employment with a casual worker being found to be eligible for entitlements usually reserved for permanent employees.

Around 20 per cent of Australian workers are engaged as casuals. As a result of this casualisation of the workforce many workers are now in a situation where they are working full time hours on singular or multiple contracts of employment without the security or benefits of full time on-going employment.

Casual employees are not generally entitled to paid personal leave, annual leave, or for public holidays when not worked. In consideration for not being eligible for these entitlements casuals are supposed to be paid a higher hourly pay rate than a permanent employee.

However, there have now been two cases Workpac v Skene and Workpac v Rossato which have examined and determined that just because an employer says an employee is a casual in a contract of employment does not mean that the employee is actually a casual. In each of these cases the courts found that the two employees were not casuals.

These cases were in relation to a labour hire company however, the rulings are not limited to labour hire company employees and the principles can be applied to the facts of any casual employment.

In order to consider whether a casual employee is really a casual employee some of the facts which are now necessary to look at are:

how the rate of pay is set out in a contract of employment and whether it specifies a separate casual loading rate;
whether the pay rate is in accordance with relevant casual rates provided by the applicable modern award or enterprise agreement;
the commitment given by the employer to the providing work and whether this work was stable, regular and predicable;
the length of time the employee has been working with the employer;
whether there was regular rostering; and
where there is an ongoing contract or a number of contracts.

If there is no written contract of employment the same principles can still be applied.

The current legislation and the current rulings in the Workpac cases may give some employees, the right to be correctly classified as permanent employees and be paid or back paid statutory leave entitlements, though it is noted that Commonwealth has signalled that it may look at amending the legislation on which the Workpac rulings are based.

Should you think that your casual employment might be permanent employment please contact us for a free case evaluation.

Apr 22 2020

Can I be Sacked for Asking about Jobkeeper?

By Anderson Gray Lawyers | Adverse Action

Have you got some questions about the JobKeeper payment? If asking your employer about it, pay attention to how they react…

Can you be fired for asking your employer about the JobKeeper payment? In short, no.

Recent media reports indicate that some employees have had their employment terminated for asking about the JobKeeper payment.

Can an employer lawfully terminate someone’s employment for asking these kinds of questions? No, and to explain why this is the case, the following is a summarised explanation of what makes this what we call, adverse action, and would likely give rise to a claim against the employer:

Putting questions to your employer about your employment – for example, asking about the JobKeeper payment, asking about your correct rate of pay etc. – would likely be considered an enquiry in relation to your employment.

Making complaints or enquiries in relation to your employment is a workplace right (see section 341(1)(c)(ii)) under the Fair Work Act. What this means is, if you make a complaint or enquiry, and your employer reacts negatively, depending on what that may look like, this could be considered unlawful adverse action.

Adverse action can take many forms, for example, a reduction in hours, discrimination, a change in remuneration, a demotion or even termination of your employment.

What can you do if you believe adverse action has been taken against you? By way of general guidance, take your own notes of dates, times, conversations etc. and, most important, get legal advice specific to your employment.

We have extensive experience in relation to adverse action claims and can provide a free assessment of your matter. If you’re unsure, it’s better to be safe than sorry.

Feb 24 2020

Jeremy Lee v Superior Wood: A decision on collecting sensitive information from employees

By Anderson Gray Lawyers | Unfair Dismissal

This article concerns a fascinating development in Australian employment law around the collection of sensitive information from employees following the decisions of the Fair Work Commission in Jeremy Lee v Superior Wood Pty Ltd.

Background

Superior Wood operated two sawmill sites in Queensland. Mr Lee was employed at Superior Wood as a general factory hand on a casual basis.

In October 2017, Superior Wood announced to employees it would introduce ‘biometric’ (fingerprint) scanners to record employees’ attendance on site. Superior Wood directed its employees to provide their fingerprint so that it could implement the scanners.

Between November 2017 to February 2018, Mr Lee refused to provide his fingerprint and use the scanners on the basis that he did not want to give up his personal information. In essence, Mr Lee viewed his biometric data as his personal property and held the view that he and only he had the right to control that property.

On 12 February 2018, Superior Wood dismissed Mr Lee for refusing to follow its direction to use the scanners.

Decision at first instance

Mr Lee made an application to the Fair Work Commission alleging he had been unfairly dismissed.

At first instance, Commissioner Hunt found that Superior Wood had a valid reason to terminate Mr Lee’s employment, being that Mr Lee refused to follow the direction to use the scanners. After considering a number of other factors, Commissioner Hunt found that the dismissal was not unfair.

The Appeal

Mr Lee appealed that decision and on appeal, the Full Bench of the Fair Work Commission overturned Commissioner Hunt’s decision and found that the dismissal was unfair.

The Full Bench considered whether the direction to use a biometric scanner, and therefore a direction for Mr Lee to provide his biometric data, was a ‘lawful and reasonable’ direction. Failure to follow a lawful and reasonable direction will often be considered a valid reason for dismissal.

Privacy Act 1988 (Cth)

The Full Bench found that Superior Wood had failed to follow its obligations under the Privacy Act when it directed Mr Lee to provide his biometric data.

Importantly, biometric data is ‘sensitive information’ for the purposes of the Privacy Act. The Full Bench found that Superior Wood required Mr Lee’s consent before it collected his sensitive information. Mr Lee was unwilling to provide his consent and therefore did not have the right to collect his sensitive information.

The Full Bench also found that Superior Wood should have provided more information to Mr Lee and other employees of Superior Wood about the collection of their sensitive information.

The Full Bench concluded that the way in which Superior Wood implemented the scanners was unlawful because it was in breach of the Privacy Act. Therefore, the direction to use the scanners was not a ‘lawful’ and reasonable direction. Instead, the direction was unlawful. Accordingly, the failure to follow the direction was not a valid reason for dismissal and the dismissal of Mr Lee was unfair.

Mr Lee was eventually awarded six (6) months compensation for the dismissal, being the statutory cap that the Commission could award him.

Ramifications

The ramifications of the decision are important for employees and employers. Both parties need to consider their obligations and rights under the Privacy Act regarding sensitive information.

Employees should consider when their employer is asking them to provide sensitive information. If the employer is asking the employee to provide sensitive information, then an employee may have the right to refuse that direction if they have not provided consent for the sensitive information to be collected. Employees should consider any policies and contracts they have agreed to, as they may have provided consent when they agreed to those documents.

Employers should be aware that if an employee does not give consent to the collection of sensitive information, then its likely an employer’s direction to provide sensitive information will not be a lawful direction. Employers can rectify this issue by having a policy or contractual term that deals with the collection of sensitive information and asking employees to agree to those terms on commencement of employment.

Aug 29 2019

Are there rules for languages spoken at Australian workplaces?

By Anderson Gray Lawyers | Discrimination

Bonjour, Bongiorno, Guten Tag, Ni Hao, Konnichiwa, Hola, Hello.

You may have understood and/or recognised one or more of those greetings in a number of languages, but if the conversation went any further, would you be able to follow? Say this conversation took place in the workplace, what would that mean for you? How would you feel?

As an employee or worker in Australia, could speaking in a language other than English in the workplace constitute exclusion of other employees? Possibly a form of bullying? Or, could a complaint or direction in relation to speaking or not speaking a particular language in the workplace constitute discrimination?

This is not a topic that has been widely tested in the courts. A case (The Western Australian Mint & Industrial Personnel Company Pty Ltd v Jinda Tuinaphiang and Siriphon Linda Schulze) heard back in 2002 by the Equal Opportunity Tribunal of Western Australia involved two employees whose native language was Thai. The two employees were directed not to speak Thai in the workplace to the exclusion of another employee who did not speak or understand Thai. The two Thai speaking employees made a claim for discrimination based on race as a result of the direction not to speak Thai in the workplace.

The Tribunal found that the two employees excluded another employee through their ‘exclusionary discussion in the Thai language’. The Tribunal further accepted that the only reason that the direction was made was to try and resolve the dispute that had arisen between the two Thai speaking employees and another non-Thai speaking employee; and that the direction therefore came about in an attempt to solve a workplace dispute and disagreement, and was not occasioned to treat the two Thai-speaking employees less favourably. Ultimately, the Tribunal found that there was neither direct nor indirect discrimination, because it was not because of, or “on the ground of”, the race of the complainants or any relevant characteristic that the direction was made.

Further, in Fernandes v State of New South Wales [1999] NSWADT 32, the New South Wales Administrative Decision Tribunal said that ‘the Tribunal regards it as totally acceptable for two employees in the workplace to have a private conversation in a language other than English.’. However, the Tribunal went on to say that if the conversation conducted in a language other than English had occurred as part of a broader group discussion, or in proximity of a third employee who felt that they were being discussed, then the request may have had some justification, indicating that, without otherwise, it would not.

What this means is that discrimination on the ground of race could occur if a person is disallowed to speak their native language in a particular workplace setting. Whether the term, condition or requirement regarding speaking or not speaking a certain language in the workplace is reasonable will depend on the circumstances of each case. To be unreasonable, the requirement must be found to have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, of any human right or fundamental freedom in a field of public life.

For example, in the case of the Western Australian Mint, if the direction to not speak Thai around another co-worker was not for the purposes of solving a workplace dispute and was just a direction that all employees must speak English while at work, then could be considered racial discrimination.

The concept of reasonableness has been considered by the High Court of Australia and it was concluded, by a majority, that ‘reasonable’ referred to what was reasonable in all the circumstances of the case, and involves considering not only the position of the complainants but also the position of the Corporation. If we take this interpretation to the case of the Western Australian Mint, what was reasonable in all of the circumstances, including the fact that the complainants were both able to speak English, and the direction not to speak Thai in the workplace was for the purpose of resolving a workplace dispute and ultimately maintaining a healthy and safe workplace, then the Tribunal’s finding of no-discrimination may make sense.

Evidently, the circumstances of each case, particularly when it comes to discrimination, will weigh on what is considered as reasonable and therefore what would constitute direct or indirect discrimination in the workplace regarding a direction to speak or not speak a certain language.

Take-Aways:

Although it is unlikely that your employment contract or workplace policies will specify a particular language that you need to speak, nor expressly exclude the speaking of another language in the workplace:

Employees should be conscious of their surroundings and/or the circumstances in which they speak another language in the workplace to avoid feelings of exclusion or isolation by other employees;
Employees have a right to speak languages other than English in the workplace;
If directed not to speak in a particular language or to speak in one language only in the workplace, employees should be aware of their rights
This topic is particularly relevant for immigrant workers and workers on visas, or whose first language is not English

Jun 14 2019

Can My Employer Direct Me to Attend an Independent Medical Examination (IME)?

By Anderson Gray Lawyers | Unfair Dismissal

Has your employer directed you to attend a medical examination by a doctor of their choice? You may be questioning whether your employer has the right to require you to attend that independent medical examination (IME).

Every case is different and the answer as to whether you are obligated to attend an IME at the directive of your employer may vary from case to case.

Work Health and Safety laws impose strict obligations on employers to ensure the safety and well-being of its employees, and on employees to ensure their own health and safety at work. For example, in New South Wales, the Work Health and Safety Act 2011 (NSW) imposes duties and obligations upon an employer between sections 19 and 26, and at section 28 for employees.

In order to abide by their obligations, an employer may request an employee to attend a medical examination to confirm their fitness for work. For example, this may occur in the following circumstances:

if an employee is proposing to return work following a workplace injury;
if an employee has been on restricted duties for an extended period of time and is about to return to full duties; or
if an employee has been on an extended period of sick leave.

There are several ways that an employer may require an employee to attend an IME, such as:

a term in an employment contract or enterprise agreement expressly provides an employer with a right to direct its employees to attend an IME in certain circumstances;
an employer may be given an express right to send employees to an IME under legislation that applies to a particular industry or sector that an employee works in. For example:
coal mine workers in Queensland are obligated to comply with instructions given that are related to health and safety, including a direction to attend a medical appointment pursuant with section 39 of the Coal Mining Safety and Health Act 1999 (Qld) and determined by the Full Court of the Federal Court in Grant v BHP Coal Pty Ltd;
Commonwealth public sector employees may be directed by their agency head to attend a medical examination for the purposes of assessing the employee’s fitness for work as prescribed under regulation 3.2 of the Public Service Regulations 1999 (Cth).
an employer asking an employee to attend an IME and that employee agrees; or
an employer issues an employee a lawful and reasonable direction for the employee to attend an IME.

Is an employer’s request for an employee to attend an IME a lawful and reasonable directive?

An employer has a right at common law to issue their employees with a lawful and reasonable directive, which employees are obligated to obey.

The Full Court in Blackadder v Ramsey Butchering Services Pty Ltd found that an employer also has a right to request an employee to attend an IME if there is genuine indication of a need for it and it is reasonable for your employer to make such a request.

Based on the authority of Blackadder, Commissioner Roe of the Fair Work Commission considered in Daniel Cole v PQ Australia Pty Ltd that a number of factors needed to be taken into consideration when determining whether an employer’s request for an employee to attend a medical examination was reasonable. These factors include:

whether there is a genuine indication of the need for the examination, such as:
prolonged absences from work;
absences without explanation; or
evidence of an illness which relates to the employee’s capacity to perform the inherent requirements of their job;
whether the employee provided adequate medical information to the employer to explain absences and demonstrated the employee’s fitness to perform their duties;
whether the industry or workplace works in is particularly dangerous or risky;
whether the employer has legitimate concerns that an employee’s injury or illness will impact on others in the workplace;
whether an employee was advised of the details of the conduct which led to the employer’s concerns that the employee was not fit for duty;
whether the medical practitioner of the employer’s choice has been advised of the issues of the employer’s concerns and were those matters focused on the employee’s inherent requirements to perform the job;
what information the employer proposed to give the medical practitioner about the employee’s actual job requirements;
whether the employee was advised of the matters to be put before the medical practitioner for their assessment; and
whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.

Employer’s do not have an unfettered right to direct its employees to attend an IME. However, employees should be mindful before refusing to attend an IME at the directive of their employer’s, because failing or refusing to abide a lawful and reasonable directive may result in disciplinary action, including termination of their employment.

If you have been directed by your employer to attend an IME, make sure you obtain as much information as possible from your employer, including:

the reasons why your employer is directing you to attend an IME;
the questions your employer intends to ask the medical examiner;
the documents your employer intends to provide the medical examiner; and
the nature of the proposed medical examination, whether it will be a physical or psychological assessment.

If you have any questions or require advice if you are required to attend an IME at the request of your employer, please contact our office on 1300 851 430 to speak with one of our employment lawyers.

May 01 2019

Conflicting medical evidence: Who makes the final call?

By Anderson Gray Lawyers | Unfair Dismissal

Recently, the Full Bench of the Fair Work Commission (‘Full Bench’) in CSL Limited T/A CSL Behring v Chris Papaioannou was asked to determine whether an employer or the Fair Work Commission makes the final call on whether an employee has capacity to perform their role when there is conflicting medical evidence.

Background

Mr Papaioannou was employed by CSL Limited T/A CSL Behring (‘CSL’) from 1 July 2008 until 6 July 2017 as a ‘Plasma Receipt Operator’. On 6 July 2017, CSL terminated Mr Papaionnou’s employment on the basis that he did not have capacity to perform his role due to a medical condition. At the time of termination, CSL had to hand two conflicting medical reports in relation to Mr Papaioannou.

What’s the relevant legislation?

Section 387 of the Fair Work Act 2009 (Cth) (‘the Act’) sets out the criteria that the Fair Work Commission must consider whether a dismissal was unfair. In particular, subsection (a) says:

“the FWC must take into account:

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct” (emphasis added)

In the Commission decision of Lion Dairy & Drinks Milk Ltd v Norman (‘Lion Dairy’) the majority of the Full Bench decided that in the case of conflicting medical evidence concerning an employee’s capacity, it was up to the employer to resolve the conflict. So long as an employer had reasonably relied on the medical evidence before them in determining that an employee no longer had capacity to perform work, the employer would have a ‘valid reason’ for termination.

Lion Dairy was contrary to an earlier decision of the Full Bench in Jetstar Airways Ltd v Neetson-Lemkes (‘Jetstar’). In Jetstar the Full Bench decided that it was the Commission’s role to determine whether at the time of dismissal an employee did not have capacity to perform work based on the relevant medical evidence, not the employers.

Initial Decision

At the first instance in the Papaioannou case, Commissioner Ryan determined that there was a ‘valid reason’ for CSL to terminate Mr Papaioannou’s employment based on his incapacity to perform his role.

Commissioner Ryan based his decision on a medical report that CSL had at the time of the dismissal that argued Mr Papaioannou would not have capacity for work for the foreseeable future. This was despite CSL being in receipt of a different medical report that estimated Mr Papaioannou could return to work within 6 months. In doing so, Commissioner Ryan adopted the reasoning in Lion Dairy.

Despite finding that there was a valid reason for CSL to dismiss Mr Papaioannou based on his incapacity, Commissioner Ryan granted the application for other reasons. CSL appealed the decision of Commissioner Ryan.

Appeal

On appeal, the Full Bench quashed the decision of Commissioner Ryan and remitted the matter for re-hearing. The Full Bench was asked to consider the conflicting authorities on the question of how medical evidence is used in determining whether an employee had the capacity to perform their role.

The Full Bench reviewed the cases interpreting unfair dismissal provisions in both the Fair Work Act 2009 (Cth) and previous iterations. They concluded that the decision in Lion Dairy was wrong and that the correct approach to conflicting medical evidence should be the one adopted in Jetstar. That being, in a case where employers have conflicting medical evidence in respect of an employee’s capacity for work, it is up to the Commission to resolve the difference, not the employer. As a result, Commissioner Ryan erred when adopting the approach in Lion Dairy and the matter should have instead been decided using the reasoning in Jetstar.

Lessons for employees

As a result of the Full Bench ruling, it is not a defence to an unfair dismissal application for an employer to rely on its preferred medical evidence where conflicting evidence exists. Instead, if there is conflicting evidence in relation to an employee’s capacity to perform work, the Fair Work Commission has the role of determining whether an employee had capacity by reviewing the medical evidence.

If you are an employee who has been dismissed because of medical evidence, you should consider talking to an employment lawyer about any potential options you may have, particularly when that evidence is conflicting.

Feb 28 2019

Jeremy Lee was a casual employee who was unfairly dismissed

Casual Conversion Clause

By Anderson Gray Lawyers | Workplace Rights and Entitlements

Are you a long-term casual employee? Do you know you probably have the right to request that your employment be converted to a part-time or full-time basis?

In July 2017, the Full Bench of the Fair Work Commission (‘the Commission’) ruled that regular casual employees who were employed for more than 12 months and met certain criteria had the right to request that their employment be converted to full-time or part-time employment.

The Commission ordered that the new casual conversion clause be inserted into 85 modern awards from 1 October 2018. If you are covered by a modern award, it is likely that the casual conversion clause applies to your employment.

Criteria

In a nutshell, the casual conversion clause gives ‘regular’ casual employees the right to request to their employer that their employment be converted to part-time or full-time. A regular casual employee is defined as:

“…a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.”

The Request

A casual employee’s request for conversion must be in writing and the employer must respond to the request in writing within 21 days. The employer can only refuse the request on ‘reasonable grounds’ and after consulting with the employee.

Reasonable Grounds

As stated, an employer can only refuse a casual employee request for conversion on ‘reasonable grounds.’ The casual conversion clause sets out a number of factors that include reasonable grounds for refusal. These include:

“it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee;

“it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

“it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months;

“it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.”

Are you a regular casual employee?

If you think you are a regular casual employee, it may be worth considering whether you should exercise your right to request conversion to full-time or part-time employment if you are covered by a modern award. If you do make a request and your employer refuses your request, you should consider whether your employer has made its refusal to you in writing, within 21 days, and whether your employer has applied the factors that can be considered as reasonable grounds for refusal. If you feel your employer has not complied with its obligations under the casual conversion clause, you should consider speaking to an employment lawyer.

Nov 15 2018

Sexual Harassment Law in Australian Workplaces

By Anderson Gray Lawyers | Sexual Harassment

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is sexual behavior that is unwanted or unwelcome. The tests for determining what amounts to sexual harassment under the relevant Australian legislation are slightly different, however, broadly sexual harassment can be defined as conduct that:

is of a sexual nature;
is unwelcome or unsolicited; and
the person engaging in the conduct did so with the intention of offending, humiliating or intimidating the person or a reasonable person would anticipate in the circumstances that the person being harassed would be offended, humiliated or intimidated.

Sexual harassment is a type of sex discrimination. In Australia, State and Commonwealth legislation provide that sexual harassment and discrimination on the basis of sex, is unlawful. The following is the list of Commonwealth and State legislation that operate to protect persons from sexual harassment:

Sex Discrimination Act 1984 (Cth);
Anti-Discrimination Act 1991 (Qld);
Equal Opportunity Act 2010 (Vic);
Anti-Discrimination Act 1977 (NSW);
Equal Opportunity Act 1984 (SA);
Anti-Discrimination Act 1992 (NT);
Equal Opportunity Act 1984 (WA);
Anti-Discrimination Act 1998 (Tas); and
Discrimination Act 1991 (ACT).

THE LEGISLATIVE TESTS FOR SEXUAL HARASSMENT

The Commonwealth and Queensland legislative provisions have been considered in this article and are as follows:

Section 28A of the Sex Discrimination Act 1984 (Cth) defines sexual harassment as follows:

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favors, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
- the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
- the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
- any disability of the person harassed;
- any other relevant circumstance.

(2) In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 119 of the Anti-Discrimination Act 1991 (Qld) states that:

“Sexual harassment” happens if a person—

(a) subjects another person to an unsolicited act of physical intimacy; or

(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

(e) with the intention of offending, humiliating or intimidating the other person; or

(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

The Commonwealth and Queensland tests are slightly broader then some States, as the above tests provide for a reasonable person test where a reasonable person would have ‘anticipated the possibility’ that the individual would have been offended, humiliated or intimidated by the harasser’s behavior. However, in (for example) New South Wales, South Australia and Victoria the legislation provides for a slightly narrower test as it includes only the word ‘anticipated’.

IN AUSTRALIA, SEXUAL HARASSMENT:

does not have to be deliberate or repeated to be unlawful, it can be a one-off incident;
can be verbal, physical or visual;
can still be considered sexual harassment whether or not the person who engaged in the conduct intended to give offence; and
can also be of a criminal nature such as sexual assault or indecent exposure. In that instance, criminal laws can apply.

SEXUAL HARASSMENT IN THE WORKPLACE

Sexual harassment can occur anywhere, however, this article focuses on sexual harassment in the workplace.

Sexual harassment at work can be committed by an employer, a colleague, contractor, client or other person who is in a working relationship with the person who has been sexually harassed. This article considers the rights and responsibilities of employers and employees and the options for employees who are sexually harassed at work.

A toxic workplace culture can lead to disharmony in the workplace, job dissatisfaction, higher turnover rates as employees leave and sexual harassment claims. It is important to understand the type of behaviour and circumstances that can constitute sexual harassment in the workplace.

The following are some examples of the type of conduct that can constitute sexual harassment:

EXAMPLES OF SEXUAL HARASSMENT:

gestures that are sexual, staring at a person or whistling;
exposing a person’s genitals;
banter that is insulting and/or demeaning;
displaying pornographic material – posters, photos, website, emails or videos in the workplace;
indecent or explicit comments about your appearance;
touching, groping, pinching or hugging a person, trying to take a colleague’s clothes off – such as unzipping a uniform;
intrusive questions about a person’s private life or body;
unnecessary familiarity, such as deliberately brushing up against a person;
sending sexually explicit text messages, emails or phone calls to a person; and
being subjected to a “boys club” atmosphere where you have to hear sexual comments made to other employees in the workplace.

SEXUAL HARASSMENT CASE STUDIES

The Work Christmas Party

Julie went to the work Christmas Party which was held at a hotel bar in the city. Upon walking into the work function, Julie’s male work colleagues wolf whistled at her and made sexual remarks about her dress and her breasts. Later in the evening, one of Julie’s male colleagues Brian started dancing on the dance floor near Julie. He then proceeded to loosen and lower his pants, then turned around and bent over to show Julie his bare bottom.

Harassment by co-workers

One of Jennifer’s colleagues superimposed Jennifer’s face on a suggestive pornographic picture and then emailed it around the entire office. Following this, several colleagues of Jennifer’s made sexual comments about her appearance and her sexual ability when she went to the lunchroom to have her lunch break.

Harassment by Manager

Steven worked at a music store part-time. After three months of employment, Steven’s Manager Laura started to make inappropriate comments to Steven about his sex life. It was a small music store and Laura was Steven’s main supervisor at work. Steven only met the owner of the business once during his employment. Laura, his Manager, wanted to know if Steven was sexually active. She would read pornographic magazines in front of Steven to see if he was ‘turned on’. A couple of months later, Laura placed her hand on Steven’s backside and kissed Steven directly on the mouth. Following this, Laura would regularly try and keep Steven back at work after closing time and attempt to engage in sexual intercourse with him or make sexual suggestions. Steven needed the money and was unable to resign from his employment, until he secured an alternative job. Upon finding another job, Steven resigned immediately from the music store.

Sexual harassment in the workplace can have a significant and detrimental effect on a workplace and a person’s well-being.

EMPLOYER OBLIGATIONS

An employee has the right to a workplace that is free of discrimination, sexual harassment and vilification. An employer has a duty of care to ensure an employee’s health and well being at work and to take reasonable steps to prevent harassment from occurring.

This can be achieved by an employer:

implementing and enforcing policies on discrimination and harassment;
providing regular training;
setting out a clear complaint process, so employees know what to do if they have an issue.

It is not satisfactory for an employer to discharge their duty of care under the legislation by the employer just having the policies and procedures in place. An employer must actively enforce the policies and provide continuous training on harassment.

VICARIOUS LIABILITY

If an employer does not meet its obligations to provide a harassment free workplace, an employer can be held to be vicariously liable if an employee is sexually harassed at work. This means that the employer can be found accountable for the actions of the person who engaged in the sexually harassing behaviour.

The legislative provisions in relation to an employer’s vicarious liability are as follows:

Section 106 of the Sex Discrimination Act 1984 (Cth) sets out the vicarious liability of an employer.

Vicarious liability etc.

(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II);
or
an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

State legislation also provides that an employer will be found liable if a worker breaches the Act. Section 133 of the Anti-Discrimination Act 1991 (Qld) provides that:

133 Vicarious liability

(1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

However, it is not only an employer who is responsible. An employee also has responsibilities.

EMPLOYEE RESPONSIBILITIES

Employees have a responsibility to ensure that they do not engage in discriminatory, sexually harassing or inappropriate behavior at work. Further, they have a responsibility to comply with their employer’s workplace policies that cover this type of conduct.

In addition, an employee ought not encourage or request a person to engage in this type of conduct as this is also inappropriate behavior.

If an employee engages in sexually harassing behavior, then that employee may:

face disciplinary action by their employer which could include being dismissed from their employment; and/or
have a formal complaint made against them by the person subjected to the alleged harassment.

If a complaint is made to the Australian Human Rights Commission or the Anti-Discrimination Commission in their State or Territory, an employee can be found to be personally liable and face penalties. This may mean that an employee may have to pay damages such as monetary compensation to the person they harassed (or encouraged to be harassed).

Employees in senior positions such as Managers, Supervisors or Executives have a responsibility by virtue of their senior positions to demonstrate acceptable workplace behavior and take steps to prevent harassment in the workplace occurring. Senior employees and Management ought to ensure that they actively promote and support workplace policies and procedures in relation to sexual harassment and take appropriate action in circumstances where a complaint has been lodged.

PREVENTATIVE MEASURES AND STRATEGIES

A workplace can achieve a harassment free zone if everyone is vigilant, mindful of their behavior and does not permit this type of behavior in the workplace or for it to continue to go unchecked.

To that end, there are a number of strategies that can be employed by an organisation to prevent harassment in the workplace. These are as follows:

implement policies and procedures on sexual harassment;
conduct regular meetings in the workplace where the workplace policies and procedures on harassment are discussed. This will assist in making it clear to employees what is harassing behavior, what behavior is expected of them at work and the avenues for an employee to make a complaint if an employee is subjected to harassment;
schedule refresher training to take place on workplace harassment and discrimination. Discuss scenarios with the employees which demonstrate discriminatory or harassing behavior or material to ensure that all employees are aware of what is and isn’t appropriate behavior;
audit the workplace to determine if there is material displayed that may be inappropriate or discriminatory; and
ensure employees are aware that complaints will be taken seriously and employees will face disciplinary action if they engage in inappropriate behavior.

WHAT STEPS CAN BE TAKEN IF AN EMPLOYEE HAS BEEN THE SUBJECT OF SEXUAL HARASSMENT?

As a general rule an employee can make an internal complaint within their organisation or make a formal complaint to an external body such as the Australian Human Rights Commission or Anti-Discrimination Commission in their State or Territory. These options are explored further below.

INTERNAL COMPLAINT

Internal Complaint Steps

There are a number of steps that can be taken internally by an employee who is of the view they are being sexually harassed in the workplace.

Review the workplace’s organisations policies and procedures on sexual harassment (if any). A policy will usually set out what is the meaning of sexual harassment under the applicable legislation and the avenue for making a complaint.
Write down the incident or incidents of when the employee was sexually harassed. It is important to include as much detail as possible of the alleged incidents, such as dates, times and if any witnesses. If the offensive material is in writing or pictures, a prudent step is to print the material out or take a photograph. This will aid an employee in making a complaint and/or to be able to discuss the situation.
It may be appropriate at first instance for the person being harassed to approach the harasser directly and ask them to stop this behavior. This can also be done in writing by the person being harassed. However, it is important that the individual being harassed only approach the harasser directly if they feel this may stop the behavior and not put the person in a position where the employee may be subjected to further inappropriate behavior or retribution.
Approach a Manager/Supervisor (if the employee feels comfortable) or the person who the employee thinks would be the most understanding and in a position to deal properly with the matter. The organisations policy may set out who an employee can go to if the employee feels they are being sexually harassed.
Make a complaint in writing to the employee’s organisation about the harassing behavior.

FORMAL EXTERNAL COMPLAINT

Internal Complaint Steps

If an employee has been sexually harassed at work, there are several avenues available to an employee to make a formal external complaint. There are a number of reasons as to why an employee may wish to make an external complaint, whether it be that the employee has made an internal complaint with their employer and no action has been taken or the employee did make a complaint, but the situation hasn’t been resolved to their satisfaction.

State and Territory Anti-Discrimination Commissions and the Australian Human Rights Commission are the authorities in Australia that can investigate and resolve complaints relating to sexual harassment. The State and Territory Commissions are listed as follows:

ACT Human Rights Commission;
Anti-Discrimination Board of New South Wales
Anti-Discrimination Commission of Queensland
Equal Opportunity Commission Western Australia
Northern Territory Anti-Discrimination Commission
Office of the Anti-Discrimination Commission (Tasmania)
South Australia Equal Opportunity Commission
Victorian Equal Opportunity and Human Rights Commission.

An employee can contact the Australian Human Rights Commission or their State or Territory Commission directly to make a formal complaint.

WHAT MATTERS OUGHT TO BE INCLUDED IN A FORMAL COMPLAINT?

Generally, a complaint must:

be made in writing;
be made by the person (or on behalf of that person) who has been the subject of the alleged harassment;
set out the events or acts of harassment that occurred. It is important to include as much detail as possible, such as dates, times and places, who was involved and what happened. If there were any verbal comments that were made and what these words or statements were;
include why the actions set out in the complaint are unlawful, that is, how did the actions of the harasser contravene the legislation which prohibits this behavior. Refer to humanrights.gov.au and the applicable State and Territory websites such as the www.adcq.qld.gov.au (if you are in Queensland) for more information on the requirements for lodging a complaint;
include any relevant supporting documents with the complaint. For example, any emails that contain sexually harassing content from the person who has harassed the complainant; and
if an employer did not take any measures to prevent the harassment from occurring, this ought to be included within the complaint. Further, if the relevant employer does not have a workplace policy on sexual harassment, or does, but doesn’t abide by it or failed to take any action after becoming aware of the sexual harassment, these are also important matters to address in the complaint. The complaint ought to include how the employer is vicariously liable with reference to the relevant section of the legislation.

TIME LIMITS

There are time limits associated with making a complaint. Generally, the person who has been harassed has between six to 12 months to make a complaint from when the alleged acts or act of sexual harassment occurred.

It is important to check time limits with the applicable Commission or refer to the legislation if a person wishes to make a complaint.

WORKPLACE PROTECTIONS

Under anti-discrimination legislation there are also protections from victimisation. Victimisation is when a person victimises another person because they have made a complaint, intend to make a complaint or have assisted someone else to make a complaint (such as by giving evidence or information).

An individual or corporation who has been found to be victimising a person can be fined or face imprisonment in certain circumstances.

If a person makes a complaint and as a result of them making a complaint, their employer takes adverse action against them, there are also workplace protections under the Fair Work Act 2009 (Cth) that prohibit this behaviour. Adverse action may include an employer demoting the employee who made the complaint, dismissing the employee or reducing their hours as a consequence of them making a complaint in relation to their employment.

If an employee makes a complaint with the Fair Work Commission on the grounds that their employer took adverse action against them, timeframes apply to the making of the complaint.

If as a result of the employee making a complaint their employer dismisses them, they have 21 days after the date the dismissal took effect in which to file a general protections application with the Commission. However, the 21 day time limit does not apply to this type of application if it does not involve a dismissal. If an employee has not been dismissed (but for example demoted) than they have up to six years from the day that the contravention occurred to lodge an application.

CASE LAW

In recent years, the decisions being handed down by Courts and Tribunals in Australia in relation to sexual harassment have shown a change in the amount of damages being awarded to complainants in this area.

Historically, the awards for damages for persons who have been sexually harassed have been quite marginal, with awards for damages ranging between $1000 to $20,000. However, due to changing community expectations, there has been a shift in the judicial system with damages being awarded for sexual harassment in the workplace ranging from $300,000 to $1,300,000 in certain cases.

The following recent cases are examples of where an increased amount of damages have been awarded in Australia by Courts and Tribunals:

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

In the 2014 decision of Richardson v Oracle Corporation Australia Pty Ltd, the Full Court of the Federal Court awarded damages to Ms Richardson against her former employer as a result of the sexual harassment she was subjected to by her colleague. At first instance, Ms Richardson was only awarded $18,000 for her pain and suffering and loss of enjoyment of life. Further, Ms Richardson was not successful in her claim for economic loss. However, Ms Richardson appealed that decision.

The Full Court of the Federal Court held differently to that of the Judge at first instance and stated that the award of damages was “manifestly inadequate” when considering community standards and expectations. Consequently, Ms Richardson was awarded $100,000 by the Full Court for the psychological harm, damage to her reputation and the detrimental effect the sexual harassment had on her relationship with her partner. In addition, the Full Court was of the view that there was a “sufficient causal link” between Ms Richardson’s resignation from her employment with Oracle and the sexual harassment she suffered. Accordingly, the Court also awarded her $30,000 for economic loss.

Matthews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728

In Matthews v Winslow Constructors (Vic) Pty Ltd, the Supreme Court of Victoria awarded an employee $1.3 million in damages after she was subjected to daily sexual harassment and bullying in the workplace. The employee was a laborer for a construction company and had to endure inappropriate conduct for two years. This included being shown pornographic material, having employees grab her and imitate a sexual act on her, being called names such as ‘bimbo’ and ‘useless’ and questioned about her sex life. Her supervisor, who was the site foreman, also engaged in this inappropriate behavior so the employee felt she couldn’t make a complaint to him.

The final straw for the employee was when a fellow colleague then stated that he would ‘follow her home and rape her’. Due to this, the employee resigned from her employment as she was so frightened. As a result of being subjected to this behaviour, the employee suffered a major depressive disorder, a jaw injury from grinding her teeth, chronic PTSD and a loss of past and future earnings due to the significant inappropriate behaviour she was subjected to whilst at work.

Collins v Smith (Human Rights) [2015] VCAT 1992

In the decision of Collins v Smith, Ms Collins worked in a post office and was repeatedly sexually harassed by her employer Mr Smith. Ms Collins was subjected to sexual harassing behavior over a period of approximately five months. Mr Smith requested that Ms Collins have sex with him, made sexual comments and sent text messages of a sexual nature, attempted to kiss Ms Collins and touch her inappropriately. Ms Collins eventually had to resign from her employment as a result of Mr Smith’s behavior. The Tribunal adopted the reasoning of the Full Court in Richardson v Oracle for assessing the damages payable to Ms Collins. Ms Collins was awarded an amount of damages totally $332,280. This comprised of general damages of $180,000 for her chronic post-traumatic stress disorder, major depressive disorder and anxiety disorder she developed as a consequence of the sexual harassment and the detriment effect this conduct her on her marital relationship, aggravated damages of $20,000, past and future loss of earnings and superannuation of $120,000 and out of pocket expenses of $12,280.

STU v JKL (Qld) Pty Ltd [2016] QCAT 505

In the 2016 decision of STU v JKL (Qld) Pty Ltd, the complainant was awarded $313,000 in damages after she was sexually assaulted by a work colleague in her room in accommodation that was provided by her employer. It was held that the incident occurred during the course of the employee’s employment as she was in accommodation the employer had provided her for relocating to Brisbane for the job. As a result of the incident, the employee suffered from depression and post traumatic stress disorder. The employee was awarded general damages for the pain and suffering and also future and past loss of earnings due to the sexual harassment and assault.

References:

Oct 08 2018

Heavy fines for franchisee’s record keeping breaches

By Anderson Gray Lawyers | Workplace Rights and Entitlements

A former Franchisee operator and the company’s owner have been handed down large penalties for a number of record keeping breaches after a Fair Work Ombudsman investigation.

Background

In Fair Work Ombudsman v Aulion Pty Ltd (‘Aulion’) and Peter Dagher were ordered to pay pecuniary penalties of $80,190.00 and $16,038.00, respectively, after Judge Street of the Federal Circuit Court found that they had falsified employee records related to pay and failed to provide payslips on time.

The Fair Work Ombudsman brought the Application in the Federal Circuit Court alleging that Aulion and Mr Dagher had engaged in various breaches of the Fair Work Regulations 2009 that related to the accuracy and keeping of employee records.

The Ombudsman had previously used its powers under the Fair Work Act 2009 to audit Aulion when it issued notices to produce various documents relating to employees pay in 2016. Aulion provided the documents, however, the Ombudsman suspected that the documents it received were not accurate and continued to investigate. After reviewing bank, superannuation and accounting records, the Ombudsman brought action in the Federal Circuit Court against the Aulion and Mr Dagher.

In Court, Aulion admitted that it had misled the Ombudsman and provided false documents and records. Mr Dagher was involved in the contraventions. The Ombudsman Natalie James, said, “False records at this Caltex outlet were so bad we couldn’t properly audit the biz to determine underpayments. Pleased even higher penalties will apply in the future.”

Penalties

Previously, the largest penalty that a court could impose for breaches related to employees wages and entitlements was $10,800. After the recently implemented Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, the maximum is now $108,000. The Ombudsman, Natalie James, said that the penalties were “the highest penalty yet in court action solely for record keeping & payslip breaches.”

The large penalties reflect the impact the amendments will have on Courts ability to penalise employers breaching civil remedy provisions of the Fair Work Act 2009 that relate to record keeping. The amendments mean that multiple and continuous breaches of record keeping provisions give Courts discretion to invoke larger penalties.

Lessons for employers (and employees)

The most important take-away from the case is that employers ensure that they maintain and manage their employee pay records with the utmost care. The Fair Work Ombudsman’s combination of powers in relation to production of documents and the higher penalties that Courts can now order against employers and individuals involved in contraventions means that the risk for employers who aren’t willing to comply with their obligations is significantly higher.

Employees should be encouraged that the Ombudsman and the Commonwealth Parliament seem more and more willing to ensure that their interests are being protected under the Act.

Judge Street is yet to publish reasons for the decision.

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May 30 2018

Office Christmas Party Do’s and Don’ts

By Anderson Gray Lawyers | Unfair Dismissal

Your office Christmas Party is fast approaching, do you know the dos and don’ts?

The annual office Christmas party can be a fun night of frivolity, however, too much frivolity can put your employment in jeopardy.

It is important as an employee to know the expectations of your employer at these functions. Many employers have a policy on how employees ought to behave at work related functions, including Christmas parties.

It is well recognised that these types of functions are sufficiently connected to your workplace and this means that if you engage in any type of behaviour that is inappropriate, such as fighting, sexual harassment or bullying towards other employees then you could be disciplined by your employer and even dismissed from your employment. Just because the work function may be outside of normal working hours and at a different venue to the workplace, does not mean that normal workplace standards of behaviour do not apply.

So here are some helpful tips:

read any workplace policy that your employer has on workplace functions. If your employer does not have a policy, this does not mean you can engage in any behaviour. You still will need to behave in an appropriate manner;
if there is alcohol at the function, ensure that you drink responsibly. Organise safe travel home if you are going to consume alcohol;
be mindful of your behaviour following the end of the Christmas party and any further frivolities you partake in; and
be careful of your behaviour when drinking alcohol, what you may consider to be a friendly overture may be considered harassment or discrimination.

Don’t be like these employees:

an employee was dismissed for publicly urinating over a balcony on to diners below at the workplace Christmas party;
following the end of a workplace Christmas party, an employee engaged in sexual acts in front of other employees, in a hotel room booked by a group of employees. This employee was dismissed; or
a group of employees were fooling around, an employee was sprayed with paint thinner on his torso by another employee which then ignited as a result of a nearby flame causing severe burns to the employee. The employees involved were prosecuted for breaches of workplace, health and safety legislation.

Your workplace Christmas party can be an enjoyable time. Remember these tips and you can have a fun time without placing your employment in jeopardy. Merry Christmas from Anderson Gray!

May 30 2018

Unfair Dismissal and the High-Income Threshold

By Anderson Gray Lawyers | Unfair Dismissal

Have you been unfairly dismissed but you’re above the high-income threshold

A recent Fair Work Commission case found that an employee was still entitled to make an unfair dismissal claim in spite of having a salary above the usual high-income threshold.

The employee’s success was on the basis that her responsibilities fell directly under an appropriate modern award.

The law provides a guide as to who is provided with unfair dismissal protection. Firstly, an employee must have completed the minimum period of employment to generate an unfair dismissal claim. If this requirement is satisfied, an employee must then either earn below the high-income threshold, which at present is $142,000 a year, or be covered by either an enterprise agreement or a modern award, as determined by the principle purpose test.

When she was fired the employee’s position title was Director of Asset Management. She earned a substantial annual average salary of $180,000, despite only starting with the company on an annual income of around $80,000. The employer argued that these earnings put her above the high-income threshold and so she should not receive unfair dismissal protection.

even though your salary may be above the high-income threshold and your employer may claim you are not covered by an Award you should still get expert legal advice

While her annual earnings certainly exceeded the threshold, the key point in this case became whether she was actually covered by a modern award.

The employer asserted that the duties of her position fell under the Real Estate Industry Award 2010 (the Award), and that even though her position title included the word “director” she was actually a Property Management Supervisor rather than a Director.

The Fair Work Commission considered the nature of the employee’s position, and with the application of the principle purpose test, it was determined that the employee’s role did in fact fall within the scope of the Award. The employee was subsequently shielded by the relevant Award and was successful in her unfair dismissal claim.

The key lesson in this case is that even though your salary may be above the high-income threshold and your employer may claim you are not covered by an Award you should still get expert legal advice if you believe you have been the victim of an unfair dismissal.

Apr 26 2018

Family and Domestic Violence Leave to be Recognised in Modern Awards

By Anderson Gray Lawyers | Workplace Rights and Entitlements

Family and Domestic Violence Leave to be Recognition in Modern Awards

Domestic violence is a significant issue in Australia that effects many individuals and has a real impact on employees and employers.

The Fair Work Commission has recognised the detrimental effect of family and domestic violence. In light of this, the Commission is in the process of including unpaid family and domestic violence leave in modern awards as it understands that this is not only a community issue but also a workplace issue. As this affects your workplace rights, Anderson Gray wishes to take this opportunity to update you on the process of this important inclusion to your workplace rights.

The Commission has found that existing leave entitlements may not meet the needs of an employee experiencing family and domestic violence. Further, that a specific response needs to be devised to deal with this issue in the workplace and that there is no existing workplace right for an employee experiencing these issues to be absent from the workplace to find alternative accommodation or attend urgent court proceedings.

At this time, whilst the Commission did not agree with providing paid family and domestic violence leave, the Commission has held that employees should be able to access paid personal/carer’s leave for family and domestic violence reasons.

The Commission along with interested parties are currently developing a model term that covers these issues to be included in modern awards.

Anderson Gray will keep you updated as the Commission moves forward with this important issue. We are lawyers for employees and are here to help you.

If you are experiencing family or domestic violence contact Anderson Gray Lawyers, they are the national sexual assault, domestic family violence counselling service.

Anderson Gray Lawyers

Family and Domestic Violence Leave

What is family and domestic violence?

Close Relative

When is an employer obligated to consult?

What does consult mean?

Redundancy

Stand down of employees

Background

Decision at first instance

The Appeal

Privacy Act 1988 (Cth)

Ramifications

Take-Aways:

WHAT IS SEXUAL HARASSMENT?

THE LEGISLATIVE TESTS FOR SEXUAL HARASSMENT

IN AUSTRALIA, SEXUAL HARASSMENT:

SEXUAL HARASSMENT IN THE WORKPLACE

EXAMPLES OF SEXUAL HARASSMENT:

SEXUAL HARASSMENT CASE STUDIES

EMPLOYER OBLIGATIONS

VICARIOUS LIABILITY

EMPLOYEE RESPONSIBILITIES

PREVENTATIVE MEASURES AND STRATEGIES

WHAT STEPS CAN BE TAKEN IF AN EMPLOYEE HAS BEEN THE SUBJECT OF SEXUAL HARASSMENT?

INTERNAL COMPLAINT

FORMAL EXTERNAL COMPLAINT

WHAT MATTERS OUGHT TO BE INCLUDED IN A FORMAL COMPLAINT?

TIME LIMITS

WORKPLACE PROTECTIONS

CASE LAW

Background

Penalties

Lessons for employers (and employees)

Your office Christmas Party is fast approaching, do you know the dos and don’ts?

Have you been unfairly dismissed but you’re above the high-income threshold

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