Category: Blog

Recruitment – Asking About a Potential Employee’s Medical History

Wednesday 13th October, 2021

By Greg Arnold, Director & Principal Consultant

med history 1024x576 - Recruitment – Asking About a Potential Employee’s Medical History

We are often asked by our clients the question – Can an employer ask potential employees about their medical history during a job interview? The question then begs, is it grounds for termination if the employer then later discovers they didn’t disclose a pre-existing condition or injury?

The answer lies in the framing of the interview question to ensure that there is no perception of discrimination by the employer on the grounds of physical or mental disability.

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FWC Upholds Dismissal of Worker who Refused to Get the Flu Shot

Wednesday 13th October, 2021

By Greg Arnold, Director & Principal Consultant

Flu shot 1024x576 - FWC Upholds Dismissal of Worker who Refused to Get the Flu Shot

Last week, the Full Bench of the Fair Work Commission upheld decision of a NSW aged care facility, Sapphire Coast Community Aged Care, which dismissed a receptionist, Jennifer Kimber in July 2020 after Ms. Kimber refused to get vaccinated against influenza.

This decision has been lauded by some lawyers and commentators as providing some reassurance to employers looking to implement a mandatory COVID vaccination policy in their business. In their decision the Full bench stated that they did not want to “give any encouragement to a spurious objection to a lawful workplace vaccination requirement”.
However, there needs to be some caution by employers around this decision. It must be remembered that this decision applied to the aged care sector, which by way of public health orders has mandated COVID vaccinations in the workplace. Further, this decision is not a “blanket precedent” which provides protection from directing employees to get vaccinated and any employee claims for medical exemptions will need to be considered on a case-by-case basis.

Employees may seek exemptions from having the COVID-19 vaccination on the basis of medical contraindications (and pregnancy in some states). However, this decision means that evidence of a medical contraindication must be based on those matters identified by the latest medical guidance for COVID-19 vaccinations.

It is also important to note that the Full Bench decision was not unanimous however, with Deputy President Lyndall Dean dissenting over the matter and describing Ms Kimber’s situation as an injustice. “I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position,” she said. This is concerning for employers as it indicates division exists in the FWC over mandatory vaccinations.

We strongly recommend that clients continue to take a balanced approach to the question of whether mandatory vaccination is appropriate to your workplace having regard to any Public Health Orders and informed by professional employment law advice. Any medical evidence of medical contraindication, in the face of a mandatory vaccination policy, must be carefully considered.

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Unpaid Work Experience Not Protected From Unfair Dismissal

Greg Arnold – Director, Principal Consultant

15th September, 2021

trainee website - Unpaid Work Experience Not Protected From Unfair Dismissal

In a recent case, the Fair Work Commission (FWC) considered the difference between volunteer work, unpaid work experience, and employment to find whether a recent law graduate was able to take an unfair dismissal claim. The FWC found that there was no contract of employment in place and the graduate was not eligible to bring an unfair dismissal claim.

In August 2020, the law school graduate commenced a role with a legal practice in Sydney. Although the graduate asserted that he had been “actively recruited” by a solicitor at the firm, the FWC found that the initial meeting had occurred at his own request.

In November 2020, the law firm advised the graduate that they were “restructuring the firm to meet the current economic crisis” and was unable to offer him any further volunteer work. He subsequently filed an unfair dismissal claim, asserting that he was an employee of the legal firm.
The FWC commented on the difficulty of differentiating between internships, unpaid work experience, and employment. The FWC considered several factors surrounding the graduate’s service to determine whether or not a contract of employment existed.

Based on the evidence, the FWC determined that the graduate was not an employee of the law firm, and therefore was not eligible to bring an unfair dismissal claim.

Lessons for Employers

  • ensure that prospective workers are aware of their title and the terms of their service;
  • do not lead volunteers and other unpaid workers to believe that they are employed by the company;
  • the terms of any working relationship should be documented in writing.

If you would like assistance in determining the terms and conditions for unpaid workers and volunteers, please do not hesitate to contact us at Effective Workplace Solutions.

Sexual Harassment Legislative Changes and a Holistic Approach to Prevent Sexual Harassment

Greg Arnold – Director, Principal Consultant

15th September 2021

Harass 1024x576 - Sexual Harassment Legislative Changes and a Holistic Approach to Prevent Sexual Harassment

Sexual harassment is an issue that sadly affects many people in the workplace – often it is a problem that may be difficult to handle from an employer’s standpoint but not impossible to tackle. It is therefore important employers foster a culture that positively supports victims and witnesses to speak up.

Legislative Changes
At the beginning of this month the Federal Government made legislative changes, with the introduction of the new Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.
This new legislation made the following important changes:

  • inserts a new provision in the SD Act to make it expressly clear that sexual harassment is unlawful;
  • the introduction of the stop sexual harassment orders (FWC);
  • sexual harassment can be a valid reason for dismissal under the Fair Work Act;
  • Fair Work Regulations now specifically prescribes sexual harassment as serious and wilful misconduct;
  • Timeframe for claims under the Sexual Discrimination Act is extended from 6 months to 2 years.

These changes arose out of the Government’s the ‘Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’ (the Roadmap) developed in April this year and was in response to the Respect@Work Report released last year by the Sex Discrimination Commissioner, Kate Jenkins.

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FWC Approves Amendments to Restaurant Award

By Andrea Vickery – Consultant

16th August, 2021

casual laws change - FWC Approves Amendments to Restaurant Award

On 2 August 2021, the Fair Work Commission approved the following amendments to the Restaurant Industry Award 2020:

  1. A simplified classification level system;
  2. An ability to agree with senior employees to avoid paying penalty rates, overtime and providing meal breaks, for up to 57 hours of work a week, if they are paid a rate higher than 170% above the Award rate ; and
  3. The ability for employers to pay allowances via a “rolled-up” hourly rate rather than for each instance they are accrued (a “Substitute Allowance”).
    The changes were made following an application made by the Minister to assist industries most affected by COVID-19. The changes are optional for business to adopt and are temporary amendments that will apply during the COVID-19 recovery period, from 11 August 2021 to 10 August 2022.
    It is expected similar amendments will be made to the Hospitality Award in the coming weeks.
    If you are covered by the Award and you require further details in relation to these new changes and how to implement these changes, please do not hesitate to contact us.