Wage Theft and secure employment are on the Agenda for the New Government, amongst other policies. We explore what this may mean in terms of changes in industrial relations law and reform in Australia and the impact on employers. Labor released its policy platform in 2021, which includes a number of industrial relations policies, focusing on protecting workers against insecure employment. The key policies in this platform are summarised below.
With so many businesses in the process of recruiting new staff, we are often required to provide advice on dismissal of employees during probation, and in particular around the subject of whether or not an employer is obligated to provide a reason for the termination.
If an employee has not completed the minimum employment period, the employee is not entitled to make a claim of unfair dismissal. Therefore, many businesses question whether they need to give an employee a reason for dismissal and formally document the process.
Whilst an employer is not obliged to provide a reason for dismissal, it is certainly advisable to do so in order to alleviate the possibility of the employee seeking compensation, particularly if the employee feels that there is a reason for the dismissal that does not align with that of the employer. While the employee is not entitled to claim unfair dismissal, they may pursue a General Protections Claim.
In a recent case with the Victorian Civil Administrative Tribunal (VCAT), an employer was found to be vicariously liable for a perpetrator’s conduct against his colleague, and fined hefty amount in general damages for a sexual harassment case that involved assault. This leads us to discuss Sexual Harassment and Vicarious Liability – Key Lessons For Employers due to this decision.
It was found that the employer failed their “positive duty to take reasonable and proportionate measures to eliminate sexual harassment as far as possible.”
The worker was employed as a female beauty therapist at the employer’s male grooming business. She said she “suffered persistent sexual harassment” from her co-worker during her 11-month employment.
The worker alleged that the co-worker performed the following:
In 2010, when social media was still largely in its infancy, it was common practice for people to announce in their ‘about me’ sections that their views were ‘expressly their own’. The exercise was meant as a safeguard that removed that person from any liability to their workplace code of ethics when they posted on social media.
In 2011, in one of Australia’s earliest case of dismissal through social media posts, a Linfox employee made several ‘inappropriate’ comments on social media about two of his managers. The FWA found the dismissal was unfair and the employee was to be reinstated, and paid compensation for lost wages – and a part of their reasoning was the lack of a company social media policy.
In a recent case the Fair Work Commission (FWC) discussed the limits that an employee is able to conduct a business external to the employer’s business during work time. The FWC has recently ruled in a case involving an employee who filed for an unfair dismissal claim after she was terminated for devoting time to her personal business during work hours.
The employer claimed that the employee was spending a considerable amount of work time performing work on her own business. Within two months of her employment, she began renting out a cottage on her property to Airbnb customers as well as renting out space for caravans on the property.
The employer then noticed that she had been taking “excessive phone calls” relating to her business instead of performing “active and meaningful duties” for her employer. The employee was verbally warned of her inappropriate conduct and was later dismissed due to performing “non-work-related activities” on multiple occasions during her work hours.
Effective Workplace Solutions are specialist practitioners who provide practical advice and assistance in workplace relations, employment law and human resources related matters. WE ONLY REPRESENT THE EMPLOYER and therefore have a comprehensive and in-depth understanding of this area from the employer perspective.