Employment Law Matters April 2022

Hello everyone – well six months is a very long time and finally we are back in full flight! As you know, I went to Melbourne for a while but I am back – regional Victoria certainly is my passion.
In my absence I learnt a lot of lessons and I am keen to share those with you all, so I will be recommencing our Re-Wined with Rosa on Friday, April 29, same bat time, same bat station to share some recent cases and recent learnings, you can register and tune in at: https://us02web.zoom.us/webinar/register/WN_0BBE8HCDQm2373vfsjcSow. Our first topic will be ‘The mechanic’s car that never works – lessons on restraint of trade from the coalface
Anyway, business is great, having a business in Bendigo is great and I look forward to continuing to work with you.

Australia as a wasted opportunity.
By Dianne Dempsey

A clue to the nature of the recent federal budget can be found in the words chosen by treasurer Josh Frydenberg to describe it. His attachment to words such as “targeted”, “temporary” and “responsible” emphasise the pedestrian nature of the budget. And it’s been interpreted by most political commentators as an attempt by the government to assuage cost of living anxieties in the short term without provoking the ire of its conservative base. Bigger picture items have been ducked. Aged care, climate change and the creation of an economy where full-time employment becomes a reality for most people, are a long way from being addressed.

The cost-of-living measures which come under the heading of “targeted” and “temporary” include a cut to the fuel excise (22 cents per litre) and the $250 bonus payment. And $250 is quite the insult. You would be lucky to shout the family to the movies and a meal on that miserable amount. There will also be an additional one-off $420 tax-offset for low- and middle-income earners.

These measures are indeed temporary, seeking to quell short-term frustrations rather than address underlying structural issues. This appears to be a government intent on patronising and underestimating its constituents by handing them out lollies to keep them quiet.

A particularly insulting form of this handout mentality occurred with the announcement in February this year of an aged care workforce bonus of up to $800. The bonus paid “in recognition of the significant commitment aged care workers have made to the care of senior Australians during the pandemic.” Rather than appease overworked and angry carers who are tied down to casual shifts, the coalition could have made a more meaningful difference to the system by ensuring that staffing ratios are radically improved and that staff aren’t forced to work two shifts in order to pay the bills.

But the overwhelming impression of this budget and the government which inspired it, is the egregious lack of concern for future Australians. We are indeed a beautiful, sunburnt country, on the cusp of environmental disaster.

Not only do our children have to deal with the consequences of climate change but there is also the significant matter of a lack of support for their souls – the arts and universities are taken a pounding. Funding cuts to the ABC and various creative grants programs have persisted throughout the coalition’s regime.

This seems to be a government frightened by what might emerge from a university education. By ideas and conversations, by contradiction and the potential for advancement. It is a government which places little or no value on artistic endeavours, or in harnessing, and then setting free, the richness of our diverse culture. When we’re all going to hell in a handbasket there won’t even be the solace of words or the hope of scientists to get us through dark days of floods and fires.

By welcoming immigration and future growth and capitalising on our intellectual and humanitarian capitol, we can ensure a strong economy and set ourselves up on the world stage as a proud, independent and strong nation. The best form of defence possible when it comes to global conflicts.

But to be such a nation we would need to be led by an intelligent and inspiring leader, a man or woman with vision and courage, one who can think beyond the next party room biffo.

In view of his reactive track record, Scott Morrison isn’t that man.
Understanding employment over the Easter period:
It’s important to understand employer obligations and employee rights over the Easter public holidays.

The Fair Work Ombudsman will be holding a free webinar on Thursday 7 April on employment during public holidays, two sessions are available at either 10.30am or 6.00pm.

Complete the webinar registration form if you wish to attend. The FWO also offer a Pay and Conditions Tool to help you calculate entitlements and what your obligations are when managing leave for employees.

FWO crackdown on back-paying workers
The Office of the Fair Work Ombudsman are cracking down on small businesses who are not complying with back-paying workers who are either currently in employment or who are no longer working with the employer.

Numerous small businesses across the hospitality industry including cafes, restaurants and fast-food outlets have been fined where they have failed to meet Compliance Notices. Under Court orders, employers can face heavy fines and requirements to back-pay workers including all pay and entitlements.

The crack down on back payments continue to be monitored by the FWO, major underpayment and back-payment scandals were widely publicised in the media where major employers including Woolworths, Michael Hill and Bunnings were found to be underpaying workers.

For more information on employer obligations and employee rights, you can visit www.fairwork.gov.au.
Re-Wined with Rosa back for 2022
Our first Re-Wined kicks off on Friday 29 April at 4pm, where Rosa will provide great insight into restraint of trade ‘The mechanic’s car that never works – lessons on restraint of trade from the coalface’

Re-Wined is a fantastic opportunity for you to learn, stay informed and connect with local businesses in an online, relaxed atmosphere without the jargon. We look forward to sharing a great year with you.

Follow the link to register and join via Zoom: 
Support for future women leaders
Recent figures from the WGEA scorecard indicate that women are still missing out on opportunities in leadership roles across a majority of our industries, accounting for less than one in five CEO’s. Under new leadership programs being introduced by the Victorian Government, more women will be provided with the opportunity to grow into future leaders.

A $1 million dollar investment package has been announced which will include scholarships, leader programs for women within male dominated industries, leadership programs for First Nations Women and for women from diverse cultural and ethnic backgrounds, leadership programs for women in rural areas and a Victorian Honour Role of Women, honouring the achievement of women within the state.

When announcing the investment package, Minister for Women Gabrielle Williams said “Women have long been missing from key decision-making tables. By improving the representation of women in leadership, we’re ensuring that our institutions better reflect the diversity of our communities.”
Applications for the programs will open soon, for more information see https://www.vic.gov.au/our-womens-leadership-programs

Inequality review to include gig economy
Insight into inequality in the gig economy was recently handed down in a report produced by the Queensland University of Technology. The report provided research on gender across digital platform work globally and in Australia, discovering that men receive up to $2.67 per hour more than women, and in some cases digital platforms enable discrimination, where workers can be chosen based on gender through online ‘filtering’ of worker profiles.

The Labor Government commissioned an inquiry into the on-demand workforce and has accepted a number of recommendations, some of which include fair conditions and pay, work status, dispute resolution and worker representation. Minister for Women Gabrielle Willliams commented on the release of the study and the need for continued support by industry “The pay gap between men and women remains an issue across almost every sector, and the gig economy is no different. Gig economy companies must do more to address the drivers of gender inequality in the workplace.”
See the full report here engage.vic.gov.au/inquiry-on-demand-workforce.

Helping hand for Single Parents
Single parents often struggle to return to the workforce or gain extra hours in their current jobs, a particular hardship for women who are largely primary caregivers. The COVID pandemic has had a further impact on the unemployed or those facing under employment.

The Victorian Government are expanding on their Wage Subsidy Scheme, eligible businesses who have an annual payroll of under $40 million will receive $20,000 if they hire an unemployed or under employed single parent in a full-time or part-time role. The role must be ongoing for at least a 12-month period at fair wage or above award or site rate. In addition to supporting single parents who struggle to find work or increase their hours, the Wage Subsidy Scheme is assisting businesses who are facing employee shortages.

Jobs Victoria offers job seekers additional support including career counselling, mentoring and workplace advocates. The scheme has assisted thousands of people find work, with just over 60 per cent of those being women.
You can find out more or register on the Jobs Victoria Online Hub https://jobs.vic.gov.au/help-for-jobseekers/register-to-find-job-and-training-opportunities.
Out of hours conduct – a valid reason for dismissal?
It has always been a vexed question – when can an employee’s conduct out of hours be sheeted home to their employment resulting in disciplinary action? The cases shed light, but have been inconsistent. The test, established in Rose v Telstra in 1998, looked at the following factors – that the conduct is such that, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; the conduct damaged the employer’s interests; or the conduct is incompatible with the employee’s duty as an employee.  
I have a case now that is looking at out of hours conduct and the nexus and it is a tricky situation.
Facts: If a childcare worker, at a private function, slaps her child, she alleges accidentally, but accidentally or not, does that conduct affect her job as a childcare worker? Her employer says it does, but disciplining your own child is not unlawful[1], and if so, how is it a breach of workplace policies warranting disciplinary action or even dismissal?
The employer conducted a reportable incident investigation[2] and she was cleared. The employer then decided to conduct a workplace investigation and found her guilty of breaching company policies and have issued her with a ‘show cause’ letter – that is tell us why you should not be dismissed.
Let’s see how my case unfolds and I will keep you up to date…but in the interim, let’s look at some relevant caselaw. In Rose v Telstra (1998)[3], the employee, Mr Rose, was involved in a fight with another employee while off-duty on a work trip funded by his employer. It was determined that out-of-hours conduct could only be a valid reason for dismissal if one or more of the following applied: the conduct is such that, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; the conduct damaged the employer’s interests; or the conduct is incompatible with the employee’s duty as an employee.  
VP Ross held that Mr Rose’s conduct lacked the requisite connection to his employment because the incident took place outside of working hours, the employee was not wearing his work uniform and was not “on-call” at the relevant time, the incident took place in a hotel room (not a public place) and accordingly there was no evidence that the reputation of the employer had been tarnished by what occurred. It was therefore not accepted that Mr Rose’s conduct, objectively viewed, was likely to cause serious damage to his employment relationship and he was therefore unfairly dismissed.   The FWC applies this approach in cases where employees challenge their dismissal for ‘private’ social media comment.

In Waters v Mt Arthur Coal (2018)[4], the FWC found that an employer fairly dismissed an employee for a Facebook post made outside work hours on a personal account, and not with an employer device.

A key factor was that the Facebook post related directly to work matters in breach of an existing workplace policy prohibiting that conduct. The FWC was then satisfied there was a relevant connection between the out-of-hours conduct and the employment relationship.

In a recent case of Corry v ACTU (2022)[5], the FWC upheld the dismissal of an employee for making offensive and discriminatory posts on his personal Facebook account and the employer’s internal messaging service.

The posts supported an anti-vaccination mandate campaign and violence against the police, and were discriminatory against various groups including the LGBTQI+ community.

In considering whether the employee’s out-of-hours posts on his personal Facebook account were a valid reason for dismissal, the FWC ruled the posts were likely to cause serious damage to the relationship between the employer and the employee, and to the employer’s interests. Further, the conduct was incompatible with the employee’s duties to the employer. The conduct breached the employer’s policies and constituted serious misconduct, which justified the employee’s dismissal.

What about non social media conduct?
The recent case, Sydney Trains v Andrew Bobrenitsky (2022)[6] further demonstrates the requirement to establish a sufficient connection between an employee’s out of hours conduct and their employment in determining whether there is a valid reason for dismissal.

In this case, a train driver was charged with a high-range drink driving offence one day before he was rostered on to work. The employee attended work on the following day without checking to see if there was residual alcohol in his system before driving a train. It was also established that on two previous occasions, the employee recorded positive results from random tests.

In the first instance decision, the FWC ruled that there was no valid reason for dismissal because the out-of-hours conduct lacked the requisite connection the employee’s employment. The conduct occurred outside working hours on a day when the employee was not rostered to work, and that the employee did not need a driver’s license to perform the duties of a train driver.

On appeal, the FWC Full Bench ruled the employee’s conduct did provide a valid reason for dismissal taken as a whole.

The failure by the employee to check whether there was residual alcohol in his system before driving a train as well as the previous occasions that the employee returned positive breath tests were relevant considerations.

It was these aspects of the employee’s conduct that were seen to be incompatible with the employee’s inherent duties. Such duties involved ensuring that he did not have alcohol in his system and that he was able to assess his own ability to drive a train safely.

In another example, an employee of a bank, who engaged in credit card fraud on another bank, outside work, was validly dismissed for such conduct. The FWC held that the employee held a position of responsibility and trust, and the employer was therefore entitled to expect that he was trustworthy and that his honesty in the carrying out of his duties could be relied on.

Back to our case. Is slapping your own child on the face at a private function incompatible with a childcare worker’s inherent duties particularly as the conduct was not unlawful? If she had slapped a child other than her own, would the considerations be different? What if the slap was an accident, as she has alleged?

Watch this space!

[1] http://classic.austlii.edu.au/au/journals/AltLawJl/2009/25.html
[2] As defined under the Reportable Conduct Scheme, Reportable conduct includes ….. physical violence committed against, with or in the presence of a child, or behaviour causing significant emotional or psychological harm.
[3] Rose v Telstra Corporation Limited (1998) AILR 45
[4] Waters v Mt Arthur Coal Pty Limited [2018] FWC 3285
[5] Conrad John Corry v Australian Council of Trade Unions t/a ACTU [2022] FWC 288, 15 February 2022 [6] Andrew Bobrenitsky v Sydney Trains [2021] FWC 3792 

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