Your Rights At WorkBen Tallboys

Senior Associate

Terri Abeysekera

Associate

12 May 2014

The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the presenter directly.

Disclaimer

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Starting employment

An employee should receive:

>Fair Work Information Statement

>Tax declaration form

>Superannuation fund nomination form

>Employment contract?

Commencing employment

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>Agreement that you will work in return for wages

>Various forms of employment contracts

> Implied employee obligations

What is an employment contract?

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Minimum Legal Standards

> National Employment Standards

> Modern Awards, Enterprise Agreements and Individual Flexibility Arrangements

> Guarantee of Annual Earnings

Terms and conditions in employment contracts

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What happens if there are changes to my employment?

>May arise as a result of a number of factors

>Proposed changes or variations should be discussed with you

>Fundamental changes to a contract can create a new contract

Changes to employment contracts

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Workplace Bullying

What is ‘workplace bullying’?

“Workplace bullying is characterised by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety.”

“Your guide to workplace bullying – prevention and response”

Victorian WorkCover Authority

Examples of bullying-type behaviour

> Verbal and physical abuse

> Rumours, isolation and exclusion

> Micromanagement

> Vexatious complaints

> Unreasonable working arrangements

Reasonable management action taken in a reasonable manner is not bullying.

Management action

> Setting deadlines or targets

> Performance appraisal and management

> Disciplinary action

> Transfers, restructures and organisational change

> Allocating work and rostering

> Decisions regarding promotion and pay

> Constructive criticism

Taken in a reasonable manner

> Reasonable grounds

> Procedural fairness

> Compliance with policies

> Communication styles

> Context

> Timeliness

What can you do about workplace bullying?

> Informal steps

> Fair Work Commission

> WorkSafe

> WorkCover

> Victoria Police

Informal steps

> Talk to the person

> Talk to HR or Management

> Following bullying or grievance policies

Fair Work Commission

Bullying jurisdiction> Commenced 1 January 2014

> Applies to “constitutionally covered businesses”

> Worker can complain to Fair Work Commission

> Commission must commence dealing with complaint within 14 days

> Commission may make orders to manage bullying

Social media in the workplace

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Can what you post on a blog, Facebook page or Twitter feed affect your employment?

Inappropriate use of social media:

> Likely to cause serious damage to the relationship between the employee and employer

> Damages the employer’s interests, or

> Incompatible with the employee’s duties as employee

Social media and work

Facebook post:

> "On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, [names new employee]. I'm looking Forward to sexually harassing you behind the stationary cupboard big boy."

Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642

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Court:> “The fact the applicant made the Facebook

comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee.”

Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642

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> “The comments that were made during the course of that conversation were not made as a post on a Facebook 'wall' that was then accessible to the 'Friends' of either party, or as a tweet that has wide ranging capability to be viewed by many followers.”

- Wilkinson-Reed v Launtoy Pty Ltd T/A

Launceston Toyota [2014] FWC 644

However, context is key...

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An employee’s rights and options when dismissed

>Understand why the dismissal is happening

>Be open and honest when challenging the decision

>Check your final pay

>Remember the 21 day deadline!

Key points

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>Dismissal must be confirmed in writing

>Notice or pay in lieu

• Except for summary dismissal

>Accrued entitlements

• Annual leave

• Long service leave

>Statement of service

Minimum entitlements

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>Enterprise Agreements or Employment Contracts

• Right to additional notice

• Right to additional pay

• Right to warnings

Additional entitlements

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Redundancy

>Job no longer required to be performed by anyone

>Redeployment must be considered

>Consultation

>Notice requirements

>Redundancy pay

Redundancy

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Making an Unfair Dismissal claim

>Permanent employees

>Minimum employment period

• 6 months generally

• 12 months for a small business

>Earning less than $129,300 per annum

>Employees covered by an Award or Enterprise Agreement

Who can apply?

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>The dismissal must be harsh, unjust or unreasonable

> It does not include:

• Resignation (except constructive dismissal)

• Genuine redundancy

What is an unfair dismissal?

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>There must be a valid reason for dismissal

> It must be proportionate

• Is there serious misconduct?

• Were warnings given or appropriate?

> It must be equitable

• Have other employees received similar treatment?

Substantial fairness

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> Opportunity to respond

• Know the allegations

• Do you need time to respond?

• Be honest!

> Warnings or opportunity to improve

> Support persons

> Additional requirements

Procedural fairness

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The process

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>Reinstatement

• Default option

>Compensation

• Up to six months’ pay

• Deductions for misconduct

>Normally, costs not recoverable

Outcomes for unfair dismissal

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Making a General Protections claim

An employer cannot take adverse action against an employee:

• because the employee has a workplace right

• because the employee has exercised a workplace right

• to prevent the employee exercising a workplace right

Workplace rights

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>National Employment Standards

• E.g. annual leave, sick leave, parental leave

>Statutory rights

• E.g. long service leave

>Award or EBA rights

• E.g. allowances, additional leave

>Right to make a complaint or inquiry

• E.g. bullying, OH&S

Examples of workplace rights

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An employer must not take adverse action against an employee because of:

Discrimination

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> Race> Colour> Sex> Sexual preference> Age> Marital status> Religion> Pregnancy> Disability

> Family or carer’s responsibilities

> Political opinion> National extraction> Social origin> Temporary > Absence due to illness

or injury

>Reduction in hours or benefits

>Differential treatment

>Warnings

>Dismissal

What is adverse action?

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General protections process

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Conference

Certificate issued

Application to Federal Court or Circuit Court

Arbitration at FWC

>Employer has the burden of disproving the employee’s claim

>BUT fairness not relevant

How is the claim decided?

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> Injunctions and reinstatement

>Compensation

>Penalties

>Normally, costs not recoverable

Outcomes

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Remember, seek help when in doubt!

And remember the 21 day deadline!

Contact details

Ben Tallboys

Senior Associate

Ph: 8640 2360

E: btallboys@rk.com.au

Terri Abeysekera

Associate

Ph: 8602 7226

E:tabeysekera@rk.com.au

For more information about the services offered by Russell Kennedy, please visit us at www.rk.com.au