Workclaims Australia

07/09/2023

RE-INSTATEMENT ISSUES

A worker seeking reinstatement will have another opportunity to have his unfair dismissal application heard, after a full bench quashed Deputy President Boyce’s decision made earlier this year.

The Active Crane Hire worker was dismissed on the spot when his yard manager found him asleep in his truck. The worker gave evidence that he was simply resting and unable to work due to bad weather at the time.

Deputy President Boyce found that while the reason for dismissal was valid the employer hadn’t afforded the worker procedural fairness and ordered compensation to be paid to the worker. The worker’s request for re-instatement was considered inappropriate by the deputy president as he believed there was “clear animosity between him and the employer’s management’’.

The Full Bench remitted the worker’s application for a remedy to Commissioner Johns for redetermination after finding the Deputy President’s decision that there was a valid reason for dismissal as ‘’unsound’’. He also failed to take into account that the yard manager by his own admission had sent his other workers home early at 2:30pm, an important piece of evidence considering the worker dismissed was found asleep at 2:45pm.

Regarding the matter of re-instatement and animosity between the manager and worker the Bench said that Active Crane submitted no such evidence at the hearing that could be relied upon to support such a finding and that if the Deputy President had formed such a view, he ‘’should have put the worker on notice that this finding was in his contemplation and the basis for it’’.

The question of trust and confidence is often raised by employers, but in reality, in this day and age, it should be a very bad relationship which prevents re-instatement.

01/05/2023

NEW CHANGES TO UNPAID LEAVE DURING CHRISTMAS SHUTDOWNS.

It has been common practice for employers to direct their employees to take unpaid leave during temporary shutdown periods like Christmas. From May 1st this will no longer be an option for many award covered employers including Hospitality Industry Award 2020, Building and Construction General On-site Award 2020 and Higher Industry- General Staff- Award 2020.

In December last year the Fair Work Commission included a new annual shut down model to be applied to 77 modern awards. The new provision allows employees with insufficient accrued leave the right to say no to taking unpaid leave, leaving them with the choice of continuing to work during shutdown or if there are no suitable duties, be paid additional annual leave while not working.

Employers must comply with new notice requirements such as giving their employees 28 days written notice before a temporary shutdown begins and should plan ahead for proposed Christmas shutdowns and ensure their leave policies are updated to reflect the new changes.

01/05/2023

STATE GOVERNMENT TACKLES SEXUAL HARASSMENT.

On April 21st the Media Statement addressed the McGowan Government’s commitment to drive out sexual harassment in the mining industry and continuing to promote the health, safety and wellbeing of WA workers.

The government’s Mental Awareness, Respect and Safety program (MARS) was introduced in 2021 and has launched numerous projects including this week’s Landmark Study Worker Survey. The survey is set to provide insight on worker experiences in WA mining and increase mental health awareness.

Responding to, Managing and Investigating Sexual Harassment course is another recently launched initiative aimed at educating and training participants on how to manage incidents of sexual harassment and not cause further trauma and harm. The program is delivered by FIFO Focus, a team of psychologists and behavioural consultants that work with the FIFO employment sector to identify, manage and reduce psychosocial hazards.

Through this and other upcoming initiatives the McGowan government continues to move forward in the fight to eliminate sexual harassment in the workplace and enforcing a safe environment for women especially in the mining sector.

If you have a problem, like this in the workplace call us: Workclaims Australia 93010850

06/04/2023

EMPLOYERS CANNOT REQUIRE EMPLOYEES TO WORK PUBLIC HOLIDAYS

WITH Easter holidays upon us, the Courts have given a timely warning about the provisions of the Fair Work Act 2009 about working on public holidays.

The Fair Work Information Sheet summarises s114 of the Act as “employees get a paid day off if you would normally work. If asked to work you can refuse, if reasonable to do so”.

Last week the CFMEU won an appeal in the Federal Court regarding this very issue. A decision by the primary judge found that a company OS MACP Pty Ltd had not contravened the Act by requiring staff to work on public holidays. The Appeal Court found against that.

OS MACP breached the Act by stating the “requirement” to work public holidays in the employment contracts, putting staff on the roster without providing a draft or giving them an option to refuse or discuss and notifying new starters during induction they should be available all year round including public holidays. Using the word requirement made the employees feel they had to comply whereas to request they work would give them the option to reasonably refuse or engage in a discussion. They now await the court’s penalty decision on the contravention.

Employers can make reasonable requests for staff to work public holidays but should take into account the operational requirements of the job, the individual’s family responsibilities, penalty rates and entitlements and ensure they are providing enough notice. Contracts should be worded appropriately, policies and procedures in place to reflect legislation around rosters and public holidays and managers educated on how to comply with the Fair Work Act.

Are you being “required” to work on public holidays? Is your employer making you feel forced or left with no choice? For questions on any workplace matter give us a call on 08 9301 0850

27/03/2023

Thank you Ithaka Media for hosting us on The Odyssey Podcast!

👉Welcome to our latest episode of the Odyssey Podcast!

This Episode is a special one for me as I had the honour of interviewing my Dad, Patrick Mullally from Workclaims Australia, and diving into his story.

Patrick has been a fierce advocate for his clients for several years working in the Industrial Relations space, often acting on behalf of workers who have been unfairly treated in their employment.

Forming Workclaims Australia, his broad base of knowledge in the fields of workplace relationships means he can help with both employers and employees.

In this episode we discuss Patrick's earlier career before moving into law, how he advocates for his clients today, along with other life advice that he has learnt from his career and interactions with others over the years.

You can listen to our podcast on your favourite platforms:

Apple/iTunes: https://podcasts.apple.com/…/the-odyssey-podca…/id1468719553
Spotify: https://open.spotify.com/show/2HckvrXqsN8CwAn9qfzxJ3
Google Podcasts: https://podcasts.google.com/feed/aHR0cHM6Ly90aGVvZHlzc2V5cG9kY2FzdC5saWJzeW4uY29tL3Jzcw
YouTube:
https://youtu.be/0GxgiZMhrH8

You can find out more about Patrick by following the links below.

https://workclaimsaustralia.com/
https://www.linkedin.com/in/patrick-mullally-32a300186/
https://www.facebook.com/WorkclaimsAus

If you would like to learn more about The Odyssey Podcast, our company Ithaka Media or about our host Jeremy Mullally, please follow the links below.

https://theodysseypodcast.com/
www.ithakamediaweb.com
https://www.linkedin.com/in/jeremy-mullally-3124211160/

24/03/2023

NEW CHANGES TO PAID PARENTAL LEAVE OFFERING FLEXIBILITY AND SUPPORTING GENDER EQUALITY.

On Monday 6th March the Senate passed the Paid Parental Leave Amendment (Improvement for Families and Gender Equality) Bill 2022. The changes to paid parental leave (PPL) will commence from July 2023, allowing working parents a flexible 20-week entitlement, giving more families access to the payments and greater flexibility in how and when they choose to take leave. Single parent entitlements will go up from the current 18 weeks to 20.

Another change to the legislation is that the primary PPL claimant will no longer have to be the birth parent giving parents the option to decide who will claim PPL first. In last week’s media release, Minister for Social Services Amanda Rishworth emphasised that improving Paid Parental Leave is essential for the wellbeing of parents and children, and the new changes would support gender equality in Australian Families.

The change also supports and encourages women going back to work soon after giving birth or adopting, allowing dads or partners to stay home with their baby by dividing the 20 weeks’ pay between them. Parents can now choose to take their PPL in different blocks, even using only one day at a time in between working days within 2 years from the date of birth or adoption.

In last year’s 2022-23 October budget the Australian Government announced it would be investing $531.6 million into the Paid Parental Leave scheme over the 4 year period and increasing the leave to 26 weeks by 2026. The aim of the scheme is to lower financial burden and stress so parents can enjoy more time at home with their baby.

Are you being paid the correct entitlements? Have your leave requests been refused unreasonably?

If you have any questions about leave entitlements or any other workplace matter please give us a call today on 9301 0850

13/03/2023

COMPANIES SHOULD HAVE EFFECTIVE CASE MANAGEMENT POLICIES IN PLACE.

Our recent win in the Fair Work Commission (which appeared in last week’s Workplace Express), underscores the importance for an employer to have a diligent approach to the Fair Work Commission.

Our Chief Industrial Advocate Patrick Mullally represented Mr. Ryan Archer for the second time against Australian Ceramics Engineering Pty Ltd (ACE) in a case where the employer tried to overturn a decision in Mr Archer’s favour for compensation.

Last year in late November Commissioner Williams found that ACE’s decision in dismissing Mr. Archer for not getting vaccinated, was unreasonable as they could have redeployed him to a workshop. The Commissioner ordered ACE to pay their former employee $34, 200 in compensation.

ACE failed to appear at the hearing and comply with the Fair Work Commissions directions to file material in relation to the case.

A few weeks after the Commissioner made the order ACE filed an application for revocation of the decision, claiming the ‘’rogue’’ HR contractor who was overseeing the matter and acting on their behalf had misled them to believe the case was expected to “fall away”’. ACE’s managing director stated that he believed the HR contractor’s advice that it wasn’t a strong case and the last correspondence he allegedly received was a cancelled listing date and notice that the parties would soon receive a new listing date.

ACE submitted that the HR contractor used his own email address to correspond with the FWC, gave incorrect contact numbers and did not provide the new HR manager any information upon handover before he ceased working for them.

Deputy President Beaumont however, after a hearing, rejected the employer’s revocation application, concluding that ACE had an ineffective handover process, that they should have shown more diligence and respect for the legal process and taken responsibility as an employer to follow up on the status of the unfair dismissal application against them.

ACE’s application was denied and the order by Commissioner Williams to pay Mr. Archer the $34, 200 compensation upheld.

To read the full case click on the link below. For advice on all workplace matters call Workclaims Australia on 93010850.

Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

10/03/2023

AUSTRALIAN HUMAN RIGHTS ACT PROPOSAL LAUNCHED

This week the Australian Human Rights Commission launched a model for a proposed Human Rights Act in Australia. We are one of the only liberal democracies without a Charter of Human Rights.

The right to work is one such human right.

The Commission’s model would create legal protections for the human rights of all Australians, and ways to seek justice if people’s rights are breached in some way.

It would also provide options for people to challenge decisions that breach their human rights, and opportunities to go to court if their issues can’t be resolved through conciliation.

This model would also increase the responsibility that governments have to consider how their laws, policies, and actions might affect people’s human rights.

If you have suffered a breach of your human rights in the workplace, give us a call today on 08 9301 0850.

23/02/2023

WORKER FIRED FOR NAPPING WINS UNFAIR DISMISSAL DUE TO LACK OF PROCEDURAL FAIRNESS

A recent decision by Deputy President Gerard Boyce found an employee’s dismissal to be harsh, unjust and unreasonable even though he also found the employer had a valid reason to dismiss the worker after he was found napping on the job.

Last year on the 7th April Mr. Brett Steed who worked as a truck driver/yard hand for Active Crane Hire Pty Ltd lodged an unfair dismissal claim after he was terminated on the spot when his manager caught him having a nap in his truck. Mr. Steed’s argument was that he was resting in the truck to keep out of the bad weather. The Deputy President didn’t believe Mr. Steed’s evidence instead finding there was a valid reason for his dismissal, but Active Crane did not comply with the correct procedure in terminating him.

The employer went to great lengths to present evidence in court to support their decision in firing Mr. Steed, bring up his 2021 performance review that had both negative and positive feedback. They said they had followed procedure in standing him down on the 7th of April and terminating him by letter on the 8th but the Deputy President rejected that evidence, finding Mr. Steed’s version more believable that in fact he was verbally terminated immediately after being found napping.

The Deputy President said that if Active Crane Hire had dismissed Mr. Steed in a procedurally fair manner then it’s unlikely he would have found the dismissal unfair.

Section 387 of The Fair Work Act sets out the criteria for considering harshness in terms of dismissal and in this case the employer failed to meet their obligations by not giving Mr. Steed an opportunity to respond to the allegations of unsatisfactory performance and poor conduct before deciding to terminate him.
As the Deputy President noted the animosity between the two parties, he did not consider reinstatement a suitable option instead ordering for Mr. Steed to be compensated.

An opportunity for employees to respond to allegations and defend themselves also means that the employer genuinely listens to them and assesses their response and evidence so that potentially the outcome could be something other than a dismissal- for example a formal warning or performance management plan.

If you feel that your employer hasn’t followed procedural fairness in dealing with any workplace matter including performance management plans, show cause and stand down letters or termination and redundancy notices give us a call today on 08 9301 0850

Click on the link below to read full case

Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

03/02/2023

03/02/2023

RAILWAY LABOURER OF 39 YEARS REINSTATED AFTER DISMISSAL

In December last year Commissioner Simpson found the dismissal of Mr. Trevor Purves to be ‘’harsh” and ordered his employer Queensland Rail Transit Authority to reinstate him as well as pay him 50% of lost pay.

Mr. Purves was a loyal employee of 39 years, working for Queensland Rail since the age of 20, and holding an unblemished working record, never failing a drug or alcohol test until March 2022 which resulted in his termination.

In Mr. Purve’s submissions to the court he explained that the night before he was stood down for a positive result for alcohol after he had followed his usual after work routine, returning from work around 3:30pm and drinking his regular half bottle of Johnnie Walker scotch and coke before going to bed at 8:30pm. He also submitted that he had been tested 4 times that particular morning each test showing a different BAC, and that the tests were possibly faulty or apparatus wasn’t functioning properly.

Queensland Rail told the court that Mr. Purves had failed to comply with the company’s drug and alcohol policy and was over the prescribed limit of 0.000 BAC. After a 2-month investigation they terminated Mr. Purves in June 2022.

Commissioner Simpson considered the evidence and submissions from both parties and found that even though the employer did have a valid reason for dismissal and followed the correct procedures in terminating Mr. Purves, it was “harsh’’ and “unfair”.
The Commissioner’s decision weighed heavily on Mr. Purves genuine remorse in his actions, and confidence in him continuing his employment without any future misconduct, saying there are other reasonable disciplinary options for an employee with an impeccable record of 39 years. He also considered the significant adverse impact the termination had on the employee and his family, and the unlikelihood of Mr. Purves finding new employment at 60 years of age and within the area of his skills and experience.

The Commissioner emphasised that reinstatement is the primary remedy under the Fair Work Act, ordering Queensland Rail to reinstate Mr. Purves and pay him 50% rather than all of his lost wages, taking into consideration that he had breached company policy.

If you have been dismissed but are unsure of what warrants as “unfair” give us a call today on 08 9301 0850.