Navigation 

Category:

Your questions answered: Can we dismiss a delivery driver whose licence has been suspended?

January 2020

Q Are we able to terminate a delivery driver who has lost his licence for 3 months? Most of the infringements have occurred whilst driving a company vehicle. A Assuming this employee would have access to unfair dismissal laws if dismissed, you would need show that you had a valid reason for dismissal, and gave him a reasonable opportunity to respond to that matter before proceeding with dismissal. The reason for dismissal might be that he can no longer can fulfil a key requirement of the job. An alternative basis might be that he has committed misconduct in incurring the offences using a company vehicle and at work. We are unable to give conclusive advice about this matter, but it would appear the first reason would be easier to justify. It is important however that you give him a proper opportunity to respond to the reason before you proceed to dismiss. You will need to comply with any contractual requirements for dismissal, including in respect of notice.  


Ageist sacking was out of ‘respect’, employer claims

January 2020

In Leslie Jones v S & Q Group Pty Ltd, the Fair Work Commission (FWC) found that a 74-year-old motel handyman was unfairly dismissed because of his age. He was terminated when the employer appointed a new company director. The director believed the man’s age meant he didn’t have the required physical capability to perform his job. The FWC found the reason for the employee’s dismissal, which was made without any medical advice or assessment, “unsound, fanciful and capricious” and ordered that he be reinstated with back pay. Employee sent packing after questioning pay and superannuation On 1 July 2019, the employee’s award rate had increased. More than a month later, the employee noted that he had not been paid the new rate, also his superannuation account wasn’t up to date. A few hours after he raised this with the manager, he was approached by the new director who advised him that his maintenance role would be expanded to include work at another motel the company owned. The director said the work would be physically demanding and allegedly told the employee that “he should be enjoying his retirement”. Two days later, the employee asked the manager about his ongoing employment situation. She contacted the director and subsequently advised the employee that he could leave immediately. In the unfair dismissal hearing, the director argued that the employee wasn’t dismissed because he questioned his pay and superannuation. The director claimed he was aware of the award increases and had advised employees they would have to wait to be paid while the company transitioned to a new payment system. The employer provided no evidence to substantiate this. Employee same age as director’s parents The director admitted he didn’t send the employee for a medical assessment to determine his suitability for the new role at both motels, but instead relied on personal judgment based on his parents’ capacity to perform the work. In the hearing, the following exchange took place between FWC Commissioner Bernie Riordan, the director Mr Wei and the employee’s union representative Mr Sage:
“MR WEI:  I want to say Mr Jones - I very respect [sic] Mr Jones, because he is at the age of my father - my mother actually. COMMISSIONER RIORDAN:  Mr Wei appears to be saying though that he has respect for Mr Jones and that Mr Jones is the same age as his mother. MR SAGE:  His father, I think. MR WEI:  Father and mother, yes. COMMISSIONER RIORDAN:  And that basically he was looking out for him. MR WEI:  Yes. MR SAGE:  Yes, Commissioner.  Well, if that were the reason it's still not a valid reason for dismissal, in our submission, because you cannot simply make your own subjective assessment of the safety requirements of a role and whether someone is fit for that job.  There is a code of practice in relation to manual handling which applies in New South Wales, which sets out what is required from a safety perspective.  Mr Jones himself is familiar with that code. Mr Wei cannot create a valid reason for dismissal by saying, 'I was worried about your health and safety,' but without any probative evidence to say that that was an issue.  That is our submission, Commissioner, on that point.”
Reinstatement and compensation ordered Commissioner Riordan found that the employer had failed to take into account the employee’s “skill, experience and competency” and that the director had “simply allocated the capacity of his 74-year-old parents” to the employee. “This process was totally subjective and undertaken without any medical advice or assessment,” he said. “As a result, the reason for termination was unsound, fanciful and capricious.” Noting that the employer had not lost trust or confidence in the employee, Commissioner Riordan ordered that he be reinstated and back paid from the date of his termination.  


Your questions answered: Can we deduct personal leave from a suspended employee?

January 2020

Q We have recently suspended an employee on full pay whilst we investigate allegations raised from a formal complaint. A subsequent disciplinary meeting was scheduled, but we have now received a doctor’s certificate from the employee. As they are suspended on full pay, should we continue to pay them as normal whilst suspended, or are we entitled to deduct from their personal leave? A If you have suspended an employee on full pay, this pay should not be deducted from their personal leave.  


Your questions answered: Could our employee’s ongoing unpaid overtime result in a hefty back pay claim?

December 2019

Q Our employee claims he has worked an extra 30 minutes a day unpaid for about three years. This has not been expressly authorised but is not contested. Can a deed be used to effectively settle any back pay claims in the instance the exact amount unpaid is uncertain? A A release by the employee in a deed won’t stop the Fair Work Ombudsman from investigating the underpayment, but it is a good start.  


Three quarters of ‘cheap eat’ establishments underpay their staff

December 2019

Are employers really concerned about correctly paying their staff? It appears many still aren’t. The Fair Work Ombudsman (FWO) discovered this when it conducted an audit swoop on popular ‘cheap eat’ establishments in Melbourne, Sydney, Perth and Adelaide. The FWO found 75 per cent of the businesses it targeted had breached workplace laws, with a massive 85 per cent of the businesses it audited in Melbourne found to be non-compliant. Since the operation, the FWO has ordered $316,674 to be returned to 608 underpaid workers. The most common breaches were: underpayment of minimum hourly rates (34 per cent); failure to provide correct payslips (15 per cent); and underpayment or non-payment of weekend penalty rates (11 per cent). Lack of understanding no excuse FWO’s Sandra Parker said that many of the breaches were a result of “businesses not understanding their lawful obligations to their workers”. “This is no excuse for underpaying employees so I’d suggest that employers invest in workplace law compliance before we come knocking,” she said. While some employers may plead ignorance, it looks like employees are becoming increasingly aware of their legal entitlements – and are prepared to do something about it. The FWO audited 156 businesses in precincts in these cities after receiving anonymous tip offs and requests for assistance. Exploitation of hospitality workers endemic “It is disappointing that we uncovered such large amounts of underpayments in popular food districts across Australia, with some of the community’s most vulnerable workers underpaid, but unfortunately it’s not surprising,” Ms Parker said. “Reducing worker exploitation in the fast food, restaurant and cafe sectors is a priority for the Fair Work Ombudsman. We’re working hard to change the culture of underpayment across this sector and businesses are firmly on notice. Any workers with concerns should contact us.”  


Your questions answered: Do employees need to provide evidence for carer’s leave?

December 2019

Q Our employee took a day off to be with her mother after her mother’s sister died. It is not compassionate leave as the aunt was outside the “immediate” family, but we’re not sure whether it is carer’s leave – as it wasn’t because of “an illness, injury, or unexpected emergency affecting the member”. We are inclined to think it is annual leave. Our employee does not live with her mother – who we gather is very independent, but undoubtedly she was very sad and distressed after receiving the news. Can you advise us as to the appropriate leave, and what evidence or otherwise might be required? A It could arguably be seen as carer’s leave in that she has taken the time off to care for her mother (who is an immediate family member), who has been affected due to an “unexpected emergency”. Otherwise annual leave would also be appropriate. Evidence is not required on every occasion leave is taken. However, if you wish to insist upon it, a statutory declaration may be most appropriate in the circumstances.  


Your questions answered: Do we have to pay employees for non-compulsory training outside of work hours?

December 2019

Q If we are running a training session which is not compulsory and an employee chooses to attend that training on a non-working day, are we obligated to pay the employee for the hours spent at the training? We operate in SA, WA, VIC, NSW and QLD. A If an employee is required to do training as part of their job, they must be paid for those hours worked. This would not be the case if they are not required to attend training on a non-working day but elect to do so regardless. For further information please see: https://www.fairwork.gov.au/pay/unpaid-work.  


Your questions answered: If an employee resigns then is soon reemployed, are their entitlements reinstated?

December 2019

Q Could you please advise what entitlements would be reinstated for an employee who resigns and then is reemployed within one month? The employee has worked for us for 11 years and is covered by the General Retail Award 2000. A A resignation will generally break an employee’s continuous service with their employer and result in a new period of employment if the employee is re-engaged on a later date. Assuming that you have paid out this employee’s entitlements when they resigned, they will begin to accrue entitlements such as annual leave from the date that they recommence their employment.  


How to draft an effective labour hire agreement in 8 steps

December 2019

Labour hire enables you to source labour to meet temporary needs without incurring the costs associated with direct employment. As a host employer, labour hire can benefit you by: allowing you to source employees quickly to meet temporary operational needs; enabling you to fulfil specific tasks or projects without committing to permanent or ongoing employment; reducing your administrative burden because the agency is responsible for the financial and administrative overheads associated with employment, including payroll tax, superannuation payments and workers’ compensation; and reducing your liability for employment-related obligations. When you enter into a labour hire agreement with an agency, it is imperative you have an effective labour hire agreement between your business and the agency. Your labour hire agreement must make it clear that the workers are employed by the agency, and then hired out to you. As a general guide, the following points should be incorporated into the labour hire agreement: 1. Clearly identify the parties List the parties to the agreement. Define all the key terms, including the nature of the parties, e.g. 'agency', 'agency employee' and 'host employer'. Use terms such as 'assignment' to highlight the nature of the indirect relationship between the host employer and the worker. 2. State the nature of the relationship Both parties should acknowledge that the worker is at all times the employee of the agency and not the employee of the host employer. Emphasise that although the host employer will instruct the worker in relation to its conduct on the worksite, ultimately the worker remains under the managerial control of the agency. 3. State the agency's obligations to the host employer Define the purpose of the agreement, i.e. for the agency to provide workers to the host employer for an assignment at the request of the host employer. Where the worker is unsatisfactory for the assignment, the host employer should be able to request that the agency replace the worker and the agency should not require that you provide a reason for this request. 4. Ensure the agency complies with the employer obligations in the Fair Work Act 2009 (Cth) (FW Act) The agency has a responsibility to the worker for rights under the FW Act (including provisions under any relevant modern award). The agency is responsible for all employer obligations owed to the labour hire worker, such as: remuneration; making superannuation contributions; remission of payroll tax and GST; withholding and remission of RAYG instalments of taxation; and payment of workers' compensation premiums. 5. The agent must comply with the host employer's policies The agency must ensure that the worker has undertaken a proper induction course and complies with the policies and work rules of the host employer. 6. The agency takes out and maintains a valid insurance policy The agency is to take out an insurance policy for professional liability, or errors or omissions for an insured worker (the amount of which should be determined with your insurer) to cover any claim against the host employer for any loss and damage caused by the worker. The agency is also to take out workers' compensation insurance in relation to injuries arising out of or in the course of employment at the host employer's worksite. 7. The host employer's obligations to the agency The host employer is to pay the agency a fee for every worker it provides and for every hour the worker works during an assignment. The host employer is to pay the agency pursuant to an invoice tendered by the agency. 8. The agency is to indemnify the host employer for actions arising out of the employment relationship The agency will be solely liable for any claim of unfair dismissal, workplace injury and breach of general protections under the FW Act, as it is the true employer. Checklist: Ensuring that an on-hired employee is suitable for your business Check that the on-hired employee is appropriately qualified, licensed or authorised to carry out the work.  

?

Require the agency to provide references from past jobs.  

?

Develop selection criteria to help you assess the on-hired employee's ability to perform the required work safely and efficiently — you can do this by asking what training they have received in risk assessments, their site safety plans, etc.  

?

Review the machinery, equipment and tools the on-hired employee will use.  

?

Discuss safety issues directly with the on-hired employee.  

?

Develop a safety induction, supervision, monitoring and risk assessment process with the on-hired employee. Obtain evidence from the agency regarding their history of:   workers' compensation claims; injuries that resulted in employees being unable to work; medical treatment injuries; and operational safety, e.g. details of prohibition or improvement notices.  

?

   


Your questions answered: Is there a maximum amount of redundancy pay we can pay an employee?

December 2019

Q If we are going to make an employee redundant, is there a threshold/maximum amount that we need to pay when the employee’s salary is over a certain level? A No. Under the Fair Work Act 2009 (Cth) National Employment Standards (NES), there is no maximum monetary amount that an employee can be paid as redundancy pay. An employee is entitled to a certain number of weeks’ redundancy pay depending on their length of continuous service. For example, an employee who has been employed for 5–6 years will be entitled to 10 weeks’ redundancy pay. This is paid at the employee’s base rate of pay for their ordinary hours of work. The NES sets out an employee’s minimum redundancy pay entitlement. It may be higher depending on the terms of the industrial instruments, employment contracts and workplace policies that apply to your business.  


« Older Entries