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unfair dismissal lawyers sydney Archives - Anderson Gray

dos and donts of a office party

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

By | 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.

unfair dismissal compensation

Conflicting medical evidence: Who makes the final call?

By | 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.

Casual Conversion Clause

By | Unfair Dismissal

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.

Heavy fines for franchisee’s record keeping breaches

By | Unfair Dismissal

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.

Need help with an unfair dismissal claim?

dos and donts of a office party

Office Christmas Party Do’s and Don’ts

By | 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!

 

casual award clause

Casual Conversion Clause in Modern Awards

By | Unfair Dismissal

What is the Casual Conversion Clause?

If your employer employs you on a casual basis, then read on as this may apply to you.

A number of modern awards currently include a casual conversion clause. This means that, if an award that includes this clause applies to your employment you may be able to convert to permanent employment if you are eligible. Generally, if you have been employed by your employer on a regular and systematic basis, for a period of six months or 12 months (depending on the award that applies to you), then you have the right to convert your employment from a casual basis to permanent full-time or part-time employment.

Some of the awards that include a casual conversion clause are the following:

Your employer must give you notice in writing of your ability to convert to permanent employment within four weeks of you reaching the six month mark.
If you do not elect to convert your employment within four weeks of receiving written notice from your employer, than your employer will deem that you have elected against converting to permanent employment.

If your employer does not give you notice, you can give your employer notice in writing that you are seeking to convert your employment to full-time or part-time employment and your employer has four weeks to agree or refuse your conversion to permanent employment. Your employer cannot unreasonably refuse.

The Fair Work Commission is also in the process of finalising a model casual conversion clause that is to be introduced into the majority of modern awards. However, a casual employee will have to be employed on a regular basis for a period of 12 months before they can request that their employment be converted to permanent employment. If their employer refuses to convert their employment, they must consult with the employee first and they can only refuse to convert the employee’s employment if they have reasonable grounds.

Stay tuned for updates in this area. Anderson Gray lawyers are here to help, contact us today in Brisbane, Sydney or Melbourne if you are having any issues with your employment.

taking annual leave

Do you Know your Annual Leave Rights?

By | Unfair Dismissal

Understanding your Rights to Annual Leave

Most modern awards now contain additional annual leave provisions that include the ability to:

  • cash out annual leave;
  • take annual leave in advance;
  • manage excessive annual leave balances; and
  • make payment for annual leave during the period of leave.

You are most likely aware that the Fair Work Commission varied a number of modern awards, but do you know all the changes and how they may apply to you?

Cashing out annual leave

You and your employer can make an agreement in writing to cash out your annual leave.  Each time an employee wishes to cash out their leave, a new agreement must be made between you and your employer.  The agreement must state the amount of leave to be cashed out and the amount of the payment to be made to you, including the date the payment is made.

It is important to note that the payment made to you must not be less than the payment you would have received if you had actually taken the period of leave.

However, there are some rules in relation to how much leave you are able to cash out.  The agreement to cash out annual leave must not leave you with an accrued annual leave entitlement of less than four weeks, and you are not permitted to cash out more than two weeks of leave in a 12 month period.

Taking annual leave in advance

You can take a period of paid annual leave before you have accrued an entitlement to take the leave if:

  • your award says you are able to; and
  • your employer agrees in writing to the advance payment.

The agreement between you and your employer must state the amount of the leave to be taken in advance and the date on which the leave is to start.

So you are aware, if your employment ends prior to you accruing the amount of the entitlement that you have taken in advance, your employer has the right to deduct any money owing from your final pay.

Managing excessive annual leave balances

If you have accrued an ‘excessive’ leave balance of at least eight weeks, you and your employer can reach an agreement to reduce your excessive leave balance.

If you and your employer cannot reach an agreement, then you can make a request in writing that you take a period of paid annual leave. However, you must have had your excessive leave balance for at least six months and your employer must not have issued a direction that would result in your excessive leave accrual being eliminated.  Any request must not result in your accrued annual leave balance being less than six weeks.

Your employer can also direct you to take annual leave in writing.

Anderson Gray lawyers are lawyers for employees in Sydney, Australia.  We are here to help you. Contact us today if you have any questions about your workplace entitlements.

Am I being paid enough? What is my right rate of pay?

By | General, Unfair Dismissal, Unpaid Wages

Am I getting the right amount of pay?

You would think this is a simple question, but it’s not.  There is no doubt that today’s workplace laws are complicated.  So it is no wonder that employees have difficulty in trying to work out what their rate of pay should be in return for a days hard work.

To work out the minimum rate of you are entitled first requires you to work out whether or not you are covered by an award.  An essential feature of an award is to prescribe the rate of pay for all employees covered by that particular award.

While trying to work out what particular award applies to you is difficult, we have set out below a simple process that is designed to give you some guidance.  So:

  • Step 1, review the award title to see if it might apply. For example, employees in the construction industry, might start by looking at the Building and Construction Onsite Award 2010, because, as the name suggests, it applies to that industry.
  • Step 2, go to clause 4 of the Award (it’s the same clause for all Modern Awards) and look to see whether the award covers the industry in which your employer operates. If it does, then that award is likely to apply to you.  If the award does not cover the industry in which your employer operates, then you’ll need to look at other awards to see if they might apply.
  • Step 3, turn to the classification definitions (usually found at Appendix B), and read through the classifications to identify the classification that best fits the actual duties you do on a day-to-day basis.
  • Step 4, check the rate of pay that relates to your classification of work in the body of the Award.

You must remember that the award sets out your minimum rate of pay.  So if you are not being paid the amount that relates to your classification of work under the award, then you might be being underpaid.

If you have a contract of employment that also sets out a rate of pay, then the rate of pay stipulated in the contract must be equal to or more than the rate you are required to be paid as set by the award.  If the contract states that your pay is less than the award rate, then again, you might not be being paid the right amount.

If the contract amount is more than the award rate, then for your ordinary hours of work, you’re probably going to be being paid the correct amount.  However, if you work more than 38 hours per week (on a full time basis), or more than the agreed hours (if you are a part-time employee), then the rate of pay needs to adjust to take account of your entitlement to overtime and/or penalty rates.

If you have any questions contact one our experienced employment lawyers.


Photo by James Sutton on Unsplash

Don’t Suffer in Silence! You CAN Ask Questions about your Entitlements

By | General, Unfair Dismissal

Enquiring of your Entitlements

The Fair Work Act provides that an employee is entitled to make a complaint or enquiry about their employment. It also provides that an employee should not be treated adversely because they made a complaint or enquiry about their employment.

A recent decision handed down by the Federal Circuit Court has identified that the court is willing to impose hefty penalties on employers (and individual directors) for treating an employee adversely after the employee made a complaint about his wages. In the case of Fair Work Ombudsman -v- Windaroo Medical Surgery Pty Ltd & Ors [2016] FCCA2505 (28 September 2016), Judge Jarrett penalised the Surgery and two of its directors because:

1. they threatened to stop paying a Doctor who had complained to the FWO about not being paid;

2. they did stop paying him until the Doctor resigned a few months later.

The Surgery and its Directors were collectively penalised over $50,000 for their involvement in the poor treatment of their employed Doctor.

The message here is that, as an employee, you have the right to complain to your employer about your workplace entitlements. If you suffer a loss because of that complaint, then the employer will be taken to have breached certain provisions of the Fair Work Act and you are likely to be entitled to compensation.

If you think that this has happened to you, then please give us a call.

AGL Team

Lawyers for Employees – specialising in unfair dismissal claims


 

Helping Employees….it’s what we’re about!

By | General, Unfair Dismissal

Getting Help for Unfair Dismissal

Being told you don’t have a job, regardless of your status in the world, is always a difficult moment.  I know this, because in a legal career expanding some 16 years, I’ve seen the hurt and damage associated with the dismissal of many persons.

The initial reaction is largely the same – bitter disappointment and anger.  Sometimes, the employee is at fault and shouldn’t have done what they did.  Similarly, there are unscrupulous employers who simply do the wrong thing.

The law is designed to protect the individual from the unscrupulous employer.

Helping an employee out in times of trouble is our business.

And here’s where we want to helpout.

Helping an employee out in times of trouble is our business.  Whether that is by way of making a demand on your employer, commencing proceedings or simply pointing you in the right direction – for us, it’s all about helping out.

You should expect from every advisor that they go about their business in a cost-effective, efficient and diligent manner. At Anderson Gray Lawyers, it’s what we strive to do every day.

And, we know our business doesn’t stop with you.  We want to be the law firm that you are happy to refer to your network of friends, if ever any of them find themselves in trouble at work. You can contact our Sydney branch, or search for us in a city near you.