Introduction

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Introduction

In this matter the applicant was employed as a catering assistant at an aged care and was dismissed following an incident where he deliberately coughed in the face of a Registered Nurse.

It was alleged that the applicant acted this was as he was annoyed that he needed to have his temperature taken for COVID-19 reasons prior to commencing work. The respondent further submitted that the applicant was frustrated that the temperature checking process was taking too long and coughed directly in the nurse’s face to express his dissatisfaction. The applicant had received training in the form of “toolbox notes” concerning the need for strict hygiene measures while at work and that the applicant had signed the notes. The applicant submitted that he coughed involuntarily, and it was too sudden for him to put his hand over his mouth.

Outcome

The Commission noted that the registered nurse was not an employee of the respondent but rather a contractor and had no personal interest in the outcome of the matter. The evidence of the nurse was compelling and cogent while the evidence of the applicant was not convincing in respect to how he coughed and why he was unable to move away from the nurse to prevent a direct cough on another person. The Commission further noted that the applicant did not immediately apologise and that it was only until later when he was directed to apologise that he reluctantly did so. The applicant’s failure to instantly recognise that his conduct was a serious incident that was contrary to the known hygiene procedures in an aged care facility during a pandemic, raises the incident in its seriousness exponentially.

The Commission accepted that the applicant’s behaviour was inconsistent with all expectations of the employer and posed a potential serious health risk to the residents and employees at the facility and understandably led to a direction that the applicant was to no longer work at the site. The Commission found that applicant had not made out his case that his dismissal was unfair, and as such the applicant’s case was dismissed.

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Introduction

This matter (which has been successfully appealed), relates to an unfair dismissal application involving a casual employee who the company argues did not work on a “regular and systematic” basis.

In this application for an unfair dismissal remedy, the respondent lodged a jurisdictional objection that the applicant was a casual employee and was not regularly and systematically employed, had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. The jurisdictional objection upheld in the 20 September 2019 decision [[2019] FWC 6448]. The September decision was appealed and a Full Bench of the Commission quashed the September decision and remitted to a Commission Member for final determination [[2020] FWCFB 306].

Background

The applicant was employed as a casual sales assistant. The respondent argued that applicant failed to properly notify of her absences, sent intimidatory and disrespectful emails and created a threat to the health and safety in the workplace. The applicant had also covertly recorded conversations between herself and the respondent.

FWC consideration

Commission considered that the recordings were not consistent with the respondent’s version that the applicant had behaved aggressively although the covert recordings would constitute a valid reason for dismissal. The Commission however noted the recordings were not the reason relied on for the dismissal and could not have been as the employer was unaware of the recording until the filing of materials in this matter. The Commission noted that the applicant did not intend to harm the employer by making the recordings and could have achieved the same objective if she had of advised the respondent that she was making the recordings.

Finding

The Commission was satisfied that the dismissal of the applicant was unreasonable because she was not notified of the reasons for her dismissal and did not have an opportunity to respond. The applicant was also effectively denied the opportunity for a support person. The Commission found that the applicant was unfairly dismissed.

Outcome

The applicant wanted to be reinstated. The Commission noted that given the conduct of the applicant having recorded conversations, there was a likelihood that on return to work there would be disciplinary action which would likely result in the applicant’s termination. The Commission further noted that trust and confidence was lost as a result of the recordings and reinstatement would be inappropriate in the circumstances. The Commission held that Directions were to be issued to elicit necessary information to consider and finalise the matter of compensation.

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Introduction

A casual labour-hire worker has been found to have ongoing employment despite being a casual and having more than 3 months off work.

Background

The applicant in this application for unfair dismissal remedy was engaged by the respondent, a labour hire business, as a casual employee on 23 January 2018. The respondent opposed the application on a number of jurisdictional grounds. There was, however, no dispute applicant was engaged as an employee.

Upon commencement in the role, the applicant worked six days a week and was sent text messages each week with his roster for the following week. The applicant’s last day of work was 28 July 2019 and he did not return after this date due to medical issues. The applicant was declared unfit for work until the end of November 2019 and on 4 December 2019 obtained medical clearance to return to work on light duties. When applicant contacted the respondent, he was advised that he was made “inactive” the respondent’s records as he had not worked for more than three months. The respondent further advised the applicant would need to reapply for work or be re-inducted.

The respondent contended that the applicant resigned his employment during a telephone conversation on 2 January 2020 and there had been no dismissal at the initiative of the employer.

Outcome

The Decisions of Wayne Shortland, Bronze Hospitality and Ponce were considered in this matter. The Commission acknowledged the nature of the labour hire industry was that where a resignation was given verbally it was not essential that it be confirmed in writing or that in the absence of a request an employment separation need be issued. It was also contended that in labour hire, there may be a lengthy period where no work is provided, however an employer of a casual employee does not repudiate the employment contract when it fails to offer another shift. Further, a casual employee remains employed until a decision is made by the employer that there is no further work and no further work will be offered.

The Commission was not satisfied the applicant actually resigned his employment on 2 January 2020 during a telephone conversation as the applicant continued to engage with the respondent in respect of seeking employment after 2 January 2020 without it being confirmed by respondent that it was their understanding that he had resigned, including their last correspondence of 4 March 2020 which failed to mentioned resignation but provided other reasons for the employment termination.

The Commission found the applicant’s dismissal effective as of 4 March 2020 was made within the prescribed period. The respondent’s jurisdictional objections were dismissed. Commission held that the matter will be subject to further directions and if necessary, arbitration on the merits of the unfair dismissal application. [Where, presumably, the casual “regular and systematic” argument will be explored – in the unlikely event that the matter is arbitrated]

Introduction

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Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad.

Background

In this application for unfair dismissal remedy, the applicant employed as a Licensed Aircraft Engineer (LAME) since January 1978. In 2016 Qantas issued LAMEs with iPads for use at work. The LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees.

Upon being issued with the iPad in May 2016 and in accordance with instructions from Qantas, the applicant enrolled it into the then MDM system. Qantas subsequently changed the MDM system and the applicant enrolled his iPad into the new system known as ‘Comp Portal’. The Comp Portal app had two settings: ‘corporate’ and ‘personal’, regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed.

The Comp Portal privacy statement informed applicant that Qantas could not see a range of personal material stored on the iPad including his web history and photographs. The applicant used the iPad to view and store pornographic and offensive material. Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad. The applicant’s iPad was seized by Qantas and forensically examined.

The investigation

Following examination an investigation commenced in relation to allegations. During the investigation, another female refueller alleged that on three occasions she witnessed the applicant viewing pornographic images in the workplace during working time. These allegations were substantiated and following a show cause process the applicant was dismissed.

The applicant maintained that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The applicant further contended that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad.

Qantas maintained that its investigation substantiated that the applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy.

Outcome

The Commission found a lack of clarity in the SOC and IT Policies in relation to personal use and on the basis that the original Mobility Terms and Conditions suggest that private material can be stored on the iPad. It was also found that the lack of clarity was compounded by unsatisfactory training provided to the applicant when issued with the iPad.

The Commission considered distinction between private use and viewing pornographic and offensive material at work and held that regardless of lack of clarity in relation to private use of the iPad on his own Wi-Fi when the applicant was at home, the applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace.

The Commission found the applicant’s conduct in viewing and storing pornographic and offensive material was a breach of the SOC and the IT Policies and despite the applicant’s apologies and expressions of regret to the female refuellers, the applicant’s denial he was viewing pornography implicitly impugned the credit of the witnesses. The Commission was satisfied there were valid reasons for the applicant’s dismissal and that his dismissal was not harsh, unjust or unreasonable. The application for unfair dismissal remedy was dismissed.

 

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Introduction

This decision concerns an unfair dismissal application contending a “forced resignation” (also known as a “constructive dismissal”). The applicant was a “customer assist specialist” with an energy retailer

Background

The applicant contended that he was forced to resign because, when in July 2020 the company directed him to work from home (in accordance with the COVID-19 restrictions), it refused to pay for or provide him with a home desk to enable him to do so, and also refused to allow him to work from the office or take six weeks’ leave.

The applicant’s job required him to use a computer and speak to customers on the telephone. On 16 March 2020, the company sent an email notice to staff stating that they were now encouraged to work from home because of the COVID-19 pandemic. On or around 1 April 2020, the applicant’s manager told him that the company could allow him to work in the office at present, but that he should start making arrangements to be able to work from home. The applicant replied that he had recently moved to a new house and did not have furniture, including a table or desk to work from. His manager suggested that he look at second-hand websites to procure one.

On 8 May 2020, the company sent an update to staff about working from home. Later that day, the applicant sent his manager an email message, stating that he did not have furniture in his house, and that he was under financial pressure due to medical expenses. He said that he was ill-equipped to work from home but that if the company would cover the cost of a desk, he would buy one. On 11 May 2020, the manager called the applicant and said that the company would not buy him a desk, but that he could continue to work from the office for the time being.

On or around 1 June 2020, the manager said to the applicant that he needed to “sort out arrangements” for working from home. The applicant replied that if the company could not properly facilitate his working from home, then his role was redundant. The manager told the applicant that redundancy was [ironically] “not on the table”.

On 7 July 2020, the Victorian government announced the reintroduction of stage 3 restrictions, which mandated that, where employees could work from home, they were required to do so. The same day, the company’s CEO sent an email to all employees stating that unless there was an urgent need to come to the office, they were to work from home. On 8 July 2020, the manager spoke to the applicant and told him that he was required to work from home. Later that day, an official of the applicant’s union sent an email to the company’s human resources manager, stating that the applicant had been directed to work from home without being provided with “the appropriate equipment necessary to carry out his work from home, namely a desk”. The union requested a dialogue with the company about the applicant either being reimbursed for the cost of purchasing a desk or being allowed to continue to work from the office.

On 9 July 2020, the HR Manager replied to the union, stating that in line with WorkSafe Victoria guidelines, the company was providing employees with all reasonable equipment and support necessary to work from home, including a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist, and online resources, but that the company would not be providing desks or reimbursement for purchasing them, as it was not fair and reasonable to do so. The union proposed that, as the applicant already had an ergonomic chair and laptop, the company could simply buy him a desk instead [hang-on, I thought he did not have any furniture?].

Contrary to the directions given on 7 and 8 July 2020, the applicant worked from the office on Friday, 10 July 2020. He then took leave on 13 and 14 July 2020. On Wednesday, 15 July 2020, the manager called the applicant and said words to the effect of “where are you at with getting a table?” as the applicant was not to continue working from the office.

Later that day the applicant submitted an application to take six weeks’ leave, commencing on Monday, 20 July 2020. His manager checked the leave calendar, and then advised the applicant that his request could not be accommodated.

On Monday, 20 July 2020, Mr McKean sent Mr Burnside an email stating: “I wish to advise that I am resigning from [the company] effective immediately. I will leave my computer and headset in my old locker, which I will keep locked and surrender my security pass to the front reception staff”. His manager replied to the email accepting his resignation.

Finding

The FWC found the applicant’s argument that he was forced to resign was “entirely without merit”, noting that applicant could have purchased a desk rather than resigning and that the applicant conceded that he has since purchased a table, stating that his position not to purchase a desk was a position of principle.

In dismissing the application, the Commission considered the respondent’s requirements for the applicant to work from home came nowhere near constituting an occupational health and safety risk or a contravention of the Occupational Health and Safety Act 2004 (Vic), noting that the respondent had provided adequate resources for employees to work from home as per Government guidelines. Concluding that it was reasonably practicable for applicant to buy himself a desk and that the request for six weeks leave was excessive and not unreasonably refused by employer; and ultimately determining that there was no forced resignation.

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Introduction

What happens when an employee refuses to undertake duties that they consider “beneath their station” and the employee resigns? Then the employer moves the resignation date. “Unfair and unreasonable” says the FWC.

Background

In this matter, the applicant was employed as a hospital data manager from mid-March 2020. However, despite his position description providing that the applicant undertake data entry work he refused.

Meetings were held with human resources and senior management; the applicant was formerly directed to undertake the data entry work.

This resulted in the applicant tendering his resignation subject to a condition that he first be allowed to take his accrued leave, wanting his resignation to be effective from 1 June but with the date adjusted for his annual and long service leave which may take the date up to December 2020.

The respondent explained that it could not accommodate this request and that termination would be effective from 1 July 2020, whereupon he would receive a payment of his termination entitlements.

The applicant submitted that he only offered to resign on the condition that he take all of his accrued annual and long service leave, from 1 June 2020, such that his employment would not end until late 2020 or early 2021. The applicant further submitted that he did not agree with the resignation date of 1 July 2020 and that by insisting upon a termination date of 1 July 2020, the hospital terminated his employment and that his dismissal was unfair as there was no valid reason for him to be dismissed.

The respondent submitted that it had accepted the resignation despite the extension of the resignation date to 1 July 2020, so that the applicant could receive more favourable tax treatment. In doing so, the respondent argued that the change of date did not affect the essential character of his resignation or on the other hand, the dismissal was not unfair, because the applicant had chosen to resign rather than perform all of the duties of his position as required.

Finding

The FWC found that it was clear from email correspondence the applicant was proposing that from 1 June 2020, he would take all of his leave, and that his resignation would be effective on the date his leave expired. Further noting the respondent processed the termination of applicant’s employment with effect from 1 July 2020 which was clearly against the applicant’s wishes and therefore the applicant’s employment was terminated at the initiative of the hospital.

In finding the employee was in fact dismissed and did not resign, went on to determine that there was no valid reason for dismissal nor was the applicant notified of the reason for dismissal or given any opportunity to respond; and that the dismissal by the respondent was unreasonable, and therefore unfair.

Outcome

The Commission considered what if any remedy should be awarded.

The FWC noted the applicant resigned from his employment rather than agree to comply with the direction of the hospital that he undertake the data entry component of his role as data entry manager and considered were the applicant to be reinstated, the requirement that he undertake all relevant data entry would likely remain a bone of contention between the parties.

There was no basis for a legitimate dispute because an employee must simply perform all of the duties of his or her position and that upon reinstatement, the applicant would want to take a substantial amount of leave and proposed that he be treated as having been on leave between the end of his employment and his reinstatement.

The FWC also noted the applicant’s “particular expectations about the modalities of taking and being paid for leave upon his reinstatement, some of which appear to be unworkable, tells against a conclusion that reinstatement is appropriate, because it begs the question as to what will occur if, as seems likely, the hospital rejects some or all” of the applicant’s proposals.

The FWC decided that it would be inappropriate to reinstate applicant and ordered compensation equal to the “remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”. In this case, the Commission’s best estimate had applicant not been dismissed he would have remained employed for a period of nine weeks beyond the date on which his employment with the respondent ended – the amount of $6,919.45 with deduction of taxation required by law.

Introduction

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Snippet: Cost awarded against ex-employee in unfair dismissal case.

In somewhat rare event the FWC has awarded costs against the applicant in an unfair dismissal matter, after the applicant withdrew her application.

Background

The FWC in this matter requested that the parties file their written submissions by a certain date. The company requested and was granted further time to submit its arguments.

The applicant commenced performing work for the company on 18 April 2018 until she was notified on 11 January 2020 that she was not required to perform any further work.

The applicant (ie the ex-employee), presumably deciding that her case was not strong, sought to discontinue the matter.

Upon the applicant ceasing to sue for unfair dismissal, the respondent sought an award from the FWC for the applicant to pay its legal costs resulting from the unfair application. The FWC gave the parties time to make submissions on the subject, however the applicant – despite an extension of time – failed to respond the FWC’s request.

The company allegations included the embezzlement of its funds

The respondent argued that the application for unfair dismissal was made vexatiously and without reasonable cause and had no reasonable prospect of success causing reh company to incur costs as a result the applicant’s unreasonable acts and omission.

The company successfully argued that the applicant:

  • Was an independent contractor not an employee;
  • Was aware that the company employed three people (a small business employer); and
  • Made unauthorised transactions from the company’s bank account and redirected payments to her own account.

The Company sought costs of $14,150.

Outcome

In finding that the company had incurred significant legal costs, however was not satisfied that the application for unfair dismissal was vexatious or without reasonable cause, finding that the applicant would not have foreseen the number of jurisdictional issues; however found that the applicant had substantially drained funds from respondent’s account and on this basis the application had no reasonable prospect of success.

As a result, the applicant had caused respondent to incur costs because of an unreasonable act in connection with the continuation of the matter beyond the conciliation conference and applicant’s actions which would have significantly impacted on the company.

The FWC ordered the applicant to pay respondent $4,000 in weekly instalments of $100.

by Sonia Hickey and Ugur Nedim, Sydney Criminal Lawyers

 

A New South Wales police officer with an untarnished record has won a five year battle to get his job back, after a legal fight that’s cost the NSW Police Force $500,000 in legal costs alone.

Sergeant George Zisopoulos was known within legal circles and by members of the justice system generally as an officer who was consistently fair in his dealings with members of the public and other professionals.

The officer had received several accolades for his exemplary service, before being dismissed from the force in 2015.

At the time, he was the first officer dismissed in our state over a controversial ‘hair follicle test’ for drugs.

The follicle analysis, ordered by his commanding officer, suggested there were minute traces of both MDMA (ecstacy) and methamphetamine in a strand of the officer’s hair.

As a result of that test, the NSW Police Commissioner at the time, Andrew Scipione, formed the conclusion that the sergeant had voluntarily taken drugs, dismissing the sergeant from the force pursuant to section 181D of the Police Act 1990 (NSW).

Officer targeted due to sexual orientation

Sergeant Zisopoulos always denied using drugs and argued he was unfairly targeted by a homophobic culture within the NSW Police Force. He was one of five homosexual officers based at Newtown police station who were targeted with false allegations.What followed for the sergeant was a long and arduous battle to restore his reputation.

Other police officer had claimed the five were “known… [for their] promiscuity” and had “loose morals”, inferring also that they were drug users.

But leading forensic experts cast serious doubts over the results of the test, finding such minute results could well have been caused by “external contamination” and that there was “no evidence” of direct ingestion.

In that regard, it was noted the sergeant was frequently involved in drug-related work and had repeatedly been exposed to drugs while on the job in the weeks before he was selected for the random drug test.

Police use of taxpayer funds

Police have since appealed the decision, not once, but twice. Both times unsuccessfully.Four years ago, the sergeant won an unfair dismissal case before the Industrial Relations Commission (IRC), which found that his termination was “harsh, unreasonable and unjust”.

Having now lost in the Industrial, with the full bench finding in his favour, it is hoped he will now be able to return to the New South Wales Police Force.

However, police forces and services are known to spare no expense – or, rather, to be unconcerned about spending taxpayer money – when it comes to doing all they can to get what they want; whether it be appealing to the High Court of Australia to suppress information relating to police brutality hearings, fighting to hide what the High Court described as ‘negligence in the highest order’ by paying a criminal defence lawyer to inform on her own clients or suppressing information about unlawful conduct which leads to tens of millions of dollars being paid out to victims of police officers every year.

The New South Wales Police Force has the option of appealing the latest decision to the state’s Court of Criminal Appeal and, being in receipt of more that $3.4 billion in public funds every year, it certainly has the financial means to do so.

by Emily Wittig Stacks Law Firm

The NSW Court of Appeal has ruled that employers can be held responsible for domestic violence when staff work from home.

In a June decision, the court ruled against an insurer’s appeal over a workers compensation case brought by the children of a woman who was killed by her de facto partner while working at home. (See Workers Compensation Nominal Insurer v Hill [2020] NSWCA54.)

This tragic event occurred in 2010 when the couple were both working from home for their family company, giving financial advice. An earlier court found the man’s attack was due to paranoid delusions. He was charged with murder, but found not guilty due to mental illness.

The mother left two dependent children, a teenage son and a baby just a few weeks old. The children made claims for workers compensation. The claim was resisted by the Workers Compensation Nominal Insurer on the grounds that the family company had long since been deregistered.

Workers Compensation Commission orders insurer to pay compensation

In 2018 the Workers Compensation Commission determined the mother had died as a result of injury arising out of, and in the course of, her employment. The WCC ordered the insurer to pay $450,000 in favour of the two children, in accordance with workplace injury law.

The WCC found the man had irrationally believed his de facto partner was conspiring to ruin his reputation and business, had spied on him and was unfaithful. At one point he even put her through a lie detector test.

The insurer appealed, arguing the mother’s death did not occur in the course of her employment, given that she was killed in her bedroom before work started at 9am and she was still in her pyjamas.

Court of Appeal finds the woman’s death and her employment to be directly linked

Under section 9A of the Workplace Injury Management and Workers Compensation Act 1988, no compensation is payable unless employment is a substantial contributing factor to the injury.

The WCC dismissed the appeal, saying she often worked at home outside regular work hours, her bedroom contained work files, and that the police found her death was between 8 and 10am.

The Court of Appeal ruled in favour of the WCC’s decision. The court found a “direct connection” between the man’s delusions, her employment and the harm suffered by her.

Employees working from home must have a safe working environment

This case demonstrates that workplace health and safety doesn’t only apply to ergonomic chairs and best lighting. Employers must, by law, provide a safe working environment for their staff and should ensure there is no risk involved with working from home. This includes the threat of domestic violence.

It is important that managers make sure their staff feel comfortable telling them if they don’t feel safe working from home, even if they don’t want to give details. Employers should also develop policies that will assist employees to communicate if they are at risk of being impacted by domestic violence when working from home.

Domestic violence cases escalate during COVID-19 lockdowns

Troublingly, domestic violence has risen significantly during the Covid-19 lockdowns, with a shocking number of women and children subjected to harm, as well as a smaller number of men.

The Australian Institute of Criminology reports that on average more than one woman per week is killed by a partner or former partner in Australia. A recent survey by the institute found almost one in ten women in a relationship has suffered domestic violence during the Covid-19 pandemic. (See The prevalence of domestic violence among women during the COVID-19 pandemic, AIC, July 2020.)

Between February and May 2020, 8.8 per cent of women in a relationship were victims of physical or sexual violence. For a third of these women, it was the first time they had experienced violence in their relationship.

The NSW Bureau of Crime Statistics and Research reported a 4.1 per cent rise in domestic violence in the past two years, with some parts of Sydney including Sutherland, Baulkham Hills and Hawkesbury reporting increases of over 30 per cent. (See NSW Recorded Crime Statistics quarterly update March 2020, BOCSAR, June 2020.)

The Medical Journal of Australia paints a similarly grim picture, estimating that between 19 per cent and 25 per cent of women will be subject to domestic violence in their lifetime. (See Domestic violence in Australia: definition, prevalence and nature of presentation in clinical practice, MJA, September 2020.)

Elsewhere, Monash University found that 60 per cent of domestic violence support practitioners have reported an increase in violence against women since Covid-19 lockdowns began. (See Gender-based violence and help-seeking behaviours during the Covid-19 pandemic, June 2020.)

These distressing domestic violence statistics highlight the need for businesses to become better informed and more proactive in implementing policies that will protect their workers, particularly with more employees working from home due to Covid-19.

By Fay Calderone and Alexandra Armstrong-Millar

The pandemic hasn’t changed redundancies, but organisations should be careful with how they interact with JobKeeper.

It’s no surprise that employers have been responding to the economic impacts of COVID-19 by making staff redundant.

Despite the pandemic being unprecedented, the Fair Work Act 2009 Cth (Act) still requires that every redundancy is genuine, and a fair process be followed when making an employee redundant. Specifically, a dismissal is considered to be a genuine redundancy where an employer meets the following requirements:

  1. the organisation no longer requires the job to be performed by anyone due to changes in the operational requirements of the business;
  2. the organisation complies with all consultation requirements existing in an award or enterprise agreement; and
  3. it was not reasonable in all the circumstances for the person to be redeployed, either within the business or to another role within an associated entity.

The test focuses on whether the role has survived the restructure as opposed to a consideration of whether or not there is still a need for the specific duties to be performed. Therefore, an employee’s role may still be genuinely redundant even if there are some parts of their duties that are being performed by other employees. If a redundancy is not genuine, employees may make an unfair dismissal claim with the Fair Work Commission (FWC).

The recent FWC decision in ASU v Auscript Australasia Pty Ltd serves as a timely reminder of the importance of consulting with impacted employees before reaching a decision to terminate employment. Auscript made a portion of its workforce redundant in two tranches this year: the first following closures of offices in Adelaide, Sydney and Hobart and the second due to the adverse impacts COVID-19 had on its business. While Auscript did meet with the impacted employees in the second tranche, it was found that it failed to genuinely consult and give due consideration to other options such as redeployment. This was in breach of its enterprise agreement.

Consultation requires meeting with each employee considered for a redundancy to explain the possibility that their role may cease to exist, albeit that no final decision has yet been made. Employers must give employees an opportunity to provide feedback and input as to options to preserve their employment as well as involve unions where required by an award, industrial instrument or the law. They must also give due consideration to such feedback.

JobKeeper

While JobKeeper has given businesses in the worst affected industries a critical lifeline, it’s not a silver bullet or a permanent solution. Boeing is one organisation that has been particularly hard-hit.

The pandemic has all but wiped out demand for the production of new aircraft in the foreseeable future. While the business confirmed redundancies would be made among factory workers in April, Boeing has since qualified for, and is claiming, JobKeeper. Nevertheless, the company anticipates the redundancy process will resume and continue until late this year. This means workers remain employed, are tagged for redundancies, but have little useful work to do in the meantime.

Conceivably, this situation could mean employees have no incentive to resign from employment while receiving JobKeeper and with pending expectations of redundancy pay.

The temporary amendments in Part 6-4C of the Act allow employers to make JobKeeper enabling directions and stand down staff on reduced or nil hours where they are unable to be usefully employed. In early September, legislation was passed to extend these amending provisions to align with the extension of JobKeeper payments until 28 March 2021.

The amendments assist employers who do not qualify for JobKeeper payments under the amended scheme, but are still suffering a downturn in business due to the adverse economic effects of COVID-19. Employers will need to carefully examine whether they can issue JobKeeper-enabling directions under the extended provisions, particularly in light of the toughener penalty regime, and consider alternate measures to reduce labour costs where they do not meet eligibility requirements.

It’s crucial organisations start casting projections and planning ahead for when JobKeeper subsidies are reduced for a second time on 4 January 2021 and then when they cease entirely in March next year.

Many organisations are revisiting their structures and redundancy processes and considering broader workplace planning strategies in preparation.

There remain, of course, a number of other options organisations can consider in order to control employment costs before resorting to making staff redundant. Redundancies produce legal risk when processes are not followed properly and can create cash flow challenges in and of themselves. It can also mean that once operations stabilise, businesses are faced with a need to recruit, train and mobilise talent, which can be quite timely, high effort and costly.

Organisations should carefully weigh up proposals to make staff redundant in accordance with the requirements in the Fair Work Act and against cash flow projections and future workplace planning strategies.

A version of this article originally appeared in the September 2020 edition of HRM magazine. The information in this article was up to date as of October 2, 2020.