The recent Fair Work Commission (FWC) decision of Owens v I-Med Radiology has provided cautionary guidance to unvaccinated applicants making unfair dismissal applications.

The decision comes after a wave of unfair dismissal decisions involving mandatory vaccination directives have revealed similar unsuccessful themes for applicants in 2022 so far.
In this matter, Deputy President Asbury has proactively set out a 10-point rebuttal of COVID-19 related arguments, to help the applicant consider whether to proceed with her case.

Background

After more than 13 years’ service, Mrs Owens was dismissed from her employment by I-Med Radiology in December 2021. The decision was made by I-Med Radiology that Mrs Owens was unable to fulfil the inherent requirements of her role as a radiographer, due to her failure to comply with the company’s COVID-19 vaccination policy and Queensland’s mandatory vaccination public health orders at the time.

The case before the FWC concerned whether Mrs Owens had lodged her application within the required 21-day timeframe, as the effective date of her dismissal was unclear.
Mrs Owens had attended a meeting with the company’s Human Resources Business Partner and her support person on 17 December 2021. She was then provided with a letter on 21 December 2021 terminating her employment.

Leading up to her dismissal, Mrs Owens made assertions and demands to the company regarding the validity of the mandatory vaccination direction under the “written law”.

The Commission’s decision

Deputy President Asbury found that Mrs Owens had lodged her application within time, as the company did not tell her “in plain and ambiguous words” that it had definitively dismissed her in the 17 December 2021 meeting.

Therefore, she had reached the stage where she was able to have the merits of her case determined. Deputy President Asbury expressed a provisional view that Mrs Owen’s case will unlikely succeed based on the arguments contained in her application. In relation to workplaces subject to Government directives, the Deputy President noted that arguments relating to the following 10 points have been “emphatically rejected in numerous cases”:

1. “The Fair Work Commission is not a Court and has no power to make a binding declaration about the validity of State or federal legislation including health directives or orders made pursuant to State legislation.
2. At the time of the Applicant’s dismissal and to date, Australian Courts have upheld the validity of directives/mandates and public health orders issued by State Governments in response to the COVID-19 Pandemic including requirements that workers in particular settings are vaccinated.
3. The argument that directives/mandates and public health orders issued by State Governments are inconsistent with federal law and are invalid because of s109 of the Constitution has been rejected by Australian Courts.
4. At the point the Applicant was dismissed, she was subject to the requirements of a Public Health Order issued by the Queensland Government and the Respondent was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination.
5. A requirement that the Applicant comply with the Public Health Order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the Applicant to participate in a medical trial.
6. Incentives to encourage employees to be vaccinated are not coercion.
7. The Applicant is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace.
8. While the choice may be difficult, it is nevertheless a choice.
9. COVID-19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.
10. Employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.”

The Deputy President made it clear that Mrs Owens’ application is not strong and substantial hurdles to success appear to exist.

Key take-aways

As the pandemic progresses, we have highlighted some of the key takeaways for employers to consider in vaccine-related dismissals:

• The 10-point rebuttal provided by the Deputy President only relates to workplaces subject to mandatory vaccination requirements under government directives.
• Although most recent decisions show support of workplaces subject to government directives, it is important to remember that unfair dismissals are multi-factorial.
• The FWC may consider whether the employee could have accessed leave entitlements while the directive was in force or whether alternative duties were available to the employee which did not require the employee to be vaccinated.
• It is often not until a matter is fully heard and evidence is taken and tested that the actual strength or weakness of a case emerges.
• A dismissal can still be unfair even if there is a valid reason, for example if the employer has manifestly failed to provide procedural fairness.
• Further decisions will be handed down by the FWC and the Courts, which are likely to follow past decisions. In Mrs Owens’ case, the Deputy President provided her with a link to the Commission’s website in relation to COVID-19 related cases.

In relation to effecting termination of employment, the case serves as a salient reminder to provide plain and ambiguous notice to employees, which is generally best delivered in writing.

For further information, please contact Mirna Oghanna, Associate, or Jane Wright, Director

For the second time in the short history of the firm, Workdynamic Australia has been announced as Employment Law Specialist Firm of the Year at the Australasian Law Awards on 19 May 2022 in a glitzy celebration in the Hilton Hotel, Sydney.
https://auslawawards.com.au/winners/2022

The 2022 Awards judges’ commented:

“A fresh and innovative approach to supporting clients across the spectrum of employment matters… depth and breadth of achievements, impressive clients, team and pro bono contributions; The growth trajectory and the success of the model of Workdynamic Australia should be commended”

Similarly, following our previous win at the Awards, comments from the judges included:

‘A boutique team with an impressive client base’; ‘A strong and growing practice with an impressive client list and a focus on client service’; ‘exemplary team spirit and workload’

This is evidenced by our founding principle of flexibility, offering an alternative employment model. Over the years this core value has not changed, and we are proud to lead the way in terms of an inclusive and diverse workplace, with each of our team members utilising some form of flexible work arrangement.

Our team has grown strongly over a number of years, with a naturally diverse assembly of professionals. We do not recruit to a formula, instead focusing on talent and skills, with offices in Sydney and Melbourne.

The metrics of the firm’s growth show the remarkable achievement of the firm. With average year on year growth of more than 25% over the last 7 years and a number of high-profile legal panel appointments, the firm is now a formidable commercial player in employment law and workplace investigations.

Success for Workdynamic means not only meeting but exceeding the expectations of our clients. This is evident from our expanding portfolio, with referrals from peers and existing clients making up the vast majority of new business. We also have a significant number of repeat instructions, with 80% of revenue generated from existing clients in FY2021.

Workdynamic Australia is results-focused and commercial in approach. We produce uncomplicated reports even for the most complex investigations, and provide practical legal advice and high-quality work for competitive prices.

Enquiries

Please contact Martina Hegarty for further comment.

 

 

The recent Fair Work Commission (FWC) decision in the case of John Keron v Westpac Banking Corporation has provided some guidance regarding the ability of an employer to manage incidents occurring outside work and also interesting commentary as to what constitutes consent for physical and sexual interactions.

Background

Despite his ‘unblemished employment record’ of 35 years, Mr Keron was dismissed from Westpac on the grounds of two incidents that took place after a work-related workshop, namely:

1. Mr Keron reached his hand towards the lower part of his female colleague’s buttocks and moved his hand in an upwards direction; and
2. Mr Keron yelled profanities towards another female colleague later that night, at a different setting.

Mr Keron submitted that the first incident was not unwelcome and that both incidents occurred outside of the workplace and working hours and hence did not have a sufficient connection with his employment.

The Commission’s decision

In reviewing the CCTV footage in relation to the first incident, the FWC recognised that the colleague was patting Mr Keron on his shoulder and back prior to the incident, which in itself is a breach of the company’s policies. However, the FWC found that this did not form an invitation for her to be touched in a sexualised manner or in an intimate location.

The FWC held that although the conduct occurred outside of the working hours, staff members were only present at the location and in the company of each other as a consequence of their attendance at the Workshop, which was held in the course of their employment.

The second incident took place significantly after the Workshop at a different location, and after the work colleagues had parted ways from each other. This did not have sufficient connection to Mr Keron’s employment.

Key take-away for employees and employers

The FWC decision confirms that the bar of consent for physical and sexual interactions in work related environment is high. The FWC considered factors such as Mr Keron’s knowledge of his colleague’s marital status which required him to exercise caution when engaging in any physical contact with her. Employees should be mindful of their social and physical behaviours with other colleagues regardless of whether they are out-of-hours interactions outside of the workplace.

The FWC has also critiqued the appropriateness of venues and the provision of alcohol at work related events. Employers should consider whether alcohol is a necessary element and should ensure that they are fostering a safe environment in which all employees feel comfortable attending. Particularly, the participation in workplace social activities or the consumption of alcohol does not form an excuse or an invitation for being touched intimately or inappropriately.

It is also appropriate for employers to review their workplace behaviour policies to ensure that they provide clear guidance on when conduct will be considered to have a sufficient connection to work.

Please contact Jane Wright if you have any questions about the above.

A decision of the Fair Work Commission has highlighted the importance of managing legal professional privilege in workplace investigations.

Background

Two workers sought to gain access to investigation documents, after they were dismissed following an investigation into bullying allegations made against them. They wished to use these documents to challenge their dismissals.

The Commission had to consider the main reason the documents in question (consisting of the investigation report, interview records, emails and ‘Investigation Protocol’ provided to participants) came into existence.

The employer argued that these documents came into existence for the purpose of obtaining legal advice.

The workers argued that the material did not attract legal professional privilege, as they came into existence for the purpose of informing an investigation into a disciplinary process.

What the FWC found

The FWC decided in favour of the employer, and found that most of the investigation documents were privileged, and therefore would not be provided to the workers.

The FWC found that the relevant documents, particularly the investigation report, came into existence for the purpose of the employer obtaining advice about the complaints. In making this decision, the FWC had regard to the content of the ‘Investigation Protocol’, which stated specifically that this was the purpose of the investigation.

The FWC also found that, provided that the main reason the investigation documents came into existence was to obtain legal advice, it does not mean that the documents cannot be used for another purpose (such as informing a disciplinary process), and that privilege can still apply in such cases.

Was privilege waived?

The workers also argued that in the event the investigation documents were privileged, such privilege had been waived because the employer had provided the workers with the audio recording of the one of the interviews, as well as the findings from the investigation report.
The FWC found that the employer did not waive any part of the privilege by providing these documents, as these were provided for the purpose of giving the workers an opportunity to respond.

The full decision is available here: Peter Tainsh and Markus Willner v Co-Operative Bulk Handling Ltd [2021] FWC 3381).

Lessons for employers

Where employers wish to maximise the likelihood that legal professional privilege will apply to investigation documents (and particular an investigation report), correspondence provided to those taking part in a workplace investigation, and associated communications, should make clear that the investigation is being conducted for the purposes of the employer obtaining legal advice.

How Workdynamic Australia can assist

Workdynamic Australia are experts in this area, and can assist your organisation in conducting privileged and effective investigations within the workplace (and elsewhere) that will withstand legal scrutiny and ensure procedural fairness. We can also act as a guide and soundboard for your internal investigation team. Please contact the team if you have any questions.

An important decision was handed down by the High Court yesterday in the WorkPac v Rossato case. The decision overturns the Federal Court’s controversial ruling that Mr Rossato was not a casual employee, and was therefore entitled to the benefits of continuing employment such as annual and personal leave, notwithstanding he received a causal loading.

The Federal Court’s decision sparked concerns by employers that they might be required to pay casual employees benefits of a continuing worker as well as the 25% leave loading. Yesterday’s judgment now resolves the threat of casual employees ‘double-dipping’, confirming that contracts are decisive in determining employment types, rather than any subsequent conduct. Employers will now enjoy the clarity that where they and their employees have committed to the terms of employment within a written contract, it is those terms that one must look at when determining the type of employment relationship.

The ruling brings the common law meaning of a ‘casual employee’ closer to the recently amended definition found within the Fair Work Act 2009 (Cth). Following these developments, a ‘casual employee’ is an employee who has no firm advance commitment from the employer as to the duration of the employee’s employment or the days (or hours) the employee will work and provides no reciprocal commitment to the employer.

Casual employees can however continue to benefit from the mechanism introduced earlier this year, requiring employers to offer casual employees the choice to become permanent where:

1. The employee has been employed for 12 months; and
2. During at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee,

and there are no reasonable grounds for the employer to not offer conversion.

Workdynamic is assisting a number of employers assess their casual employee pool prior to the 27 September 2021 deadline, and we would be happy to discuss your organisation’s needs.

 

Important amendments have been made to the Fair Work Act 2009 (Cth) (the Act) which introduce new workplace rights and obligations with respect to casual employees. These changes came into effect as of 27 March 2021, following the enactment of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020.

Meaning of ‘casual employee’

Following these changes, the Act now defines a ‘casual employee’ as someone who accepts an offer of employment from an employer on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person (the ‘Firm Advance Commitment’). The Act sets out various factors which must be exclusively considered in determining whether the employer makes a Firm Advance Commitment. It also states that a regular pattern of hours does not of itself indicate a Firm Advance Commitment.

Importantly, the question of whether a person is a casual employee is assessed based on the offer and acceptance of the offer of employment, and not on the basis of any subsequent conduct of either party. Also, a casual employee will remain casual until they are converted to permanent employment, or the employee accepts non-casual employment by the employer and commences work on this basis.

Offers for casual conversion

Employers (other than small business employers[1]) are required to make written offers to casual employees for them to convert to permanent employment if:

1. the employee has been employed for 12 months; and
2. during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).

Employees who have worked the equivalent of full-time hours during that previous six month period must be offered full-time employment, whilst those who have worked less than full-time hours must be offered part-time employment that is consistent with the regular pattern of hours worked.

The Act states that an employer is not required to make such an offer if there are reasonable grounds not do so, which are based on facts that are known, or reasonably foreseeable at the time of deciding not to make the offer. Examples of such reasonable grounds are set out in the Act.

Various requirements apply to the notification of such offers (and non-offers), and the acceptance of such offers.

The Act also creates a right for casual employees to request conversion in certain circumstances, and employers are only able to refuse such requests on reasonable business grounds, and following consultation with the employee.

Employers should also ensure compliance with any awards or industrial agreements that provide for a more generous casual conversion entitlement.

Casual Employment Information Sheet

Employers will be required to provide all casual employees with a Casual Employment Information Sheet. This must be provided before, or as soon as possible after the employee starts their job.

Casual loading offset

Where an employee makes a claim for entitlements during a period of employment in which they were not a casual employee, the Act allows a court to ‘set off’ any identifiable casual loading that was paid to that person during the relevant period. This prevents an employee from ‘double dipping’ with respect to such payments. The claim for entitlements can include claims for annual leave, personal leave, compassionate leave, public holiday pay, payments in lieu of notice or redundancy pay.

Disputes

The Act also creates a pathway for parties to resolve disputes about the operation of these provisions. If a dispute cannot be resolved at the workplace level, it can be referred to the fair Work Commission.

Next steps for employers

As a result of these new laws, employers should take steps to:

• Review the terms and conditions on which you engage casual employees, including the manner of engagement. In particular, it will be important to ensure that contracts of employment for casual employees clarify the basis of the employment, and clearly establish the loading component of a casual employee’s hourly rate of pay.
• Consider any obligations you have to offer casual employees conversion to full-time or part-time employment.
• Ensure that casual employees are provided with the Casual Employment Information Sheet.

 

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

[1] I.e. employers with a headcount of less than 15 employees

Amid rising awareness of sexual harassment in the workplace, organisations are increasingly turning to the legal profession for advice and investigations following complaints and disclosures from employees and other stakeholders. Jane Wright, Director and Principal at Workdynamic Australia, emphasises the need for employers to take a serious look at how they are handling investigations of sexual assault and harassment within their own workplace.

“Given the often highly contested nature of sexual harassment and assault claims, employers frequently turn to an independent investigator to ensure a procedurally fair and unbiased assessment. Both the complainant and respondent are deserving of the matter being appropriately investigated in a timely and sensitive manner”, said Wright. “The public mood in support of complainants coming forward and disclosing these matters needs to be matched by the integrity and professionalism of how the disclosures are handled, once made.”

Wright has been investigating historical and current sexual assault and harassment claims for nearly twenty years within some of Australia’s largest public and private workplaces. She says Australian workplaces, now more than ever, are coming under the microscope in the way they address such allegations. “Considering the significant legal and reputational risk that can eventuate if allegations of this magnitude are substantiated, it is crucial that employers are handling reports of sexual harassment and assault seriously and properly”, said Wright. She warns employers that delayed and improperly conducted investigations can not only have grave consequences for both employee welfare and safety, but also the health of the organisation.

She said organisations that are trying to ‘tick’ a box or are reluctant to change outdated procedures will simply not do anymore. The overlapping regulatory regimes concerning areas such as work health and safety, whistleblowing, harassment, and procedural fairness in Australian workplaces demands a sophisticated approach.  Wright believes that in these cases, employment lawyers can be a real benefit to Australian workplaces struggling to keep up. “At Workdynamic, we work with our clients to update policies, provide training on appropriate workplace behaviours, and give guidance to existing human resources personnel on how best to handle investigations of sexual harassment”, said Wright. “We support clients to be proactive, acting ahead of scandal or harm to anyone involved, and having in place best practice responses if a disclosure like this is made.”  She stresses that if claims of sexual harassment or assault are not properly investigated, it can leave employers exposed to great legal risk.

Earlier this week, Premier Daniel Andrews announced the introduction of the “Secure Work Pilot Scheme” under which casual or insecure workers in certain industries will be entitled to five days’ sick and carer’s pay at the national minimum wage.

The scheme is set to come into effect in late 2021 or early 2022 and will initially be funded by the State government before relying on an industry levy.

The driving force behind the scheme was the COVID-19 pandemic, which exposed problems around casual workers continuing to work when unwell to avoid loss of income.

The scheme will be aimed at sectors where insecure work is common, such as hospitality, private aged care and security work, with the final list of sectors yet to be determined.

Whilst this may be positive news for casual workers in Victoria, it has raised concerns for employers around the increasing costs associated with casual workers, with businesses set to fund the scheme in the long run.

 

The scheme is yet to be finalised so watch this space.

We are delighted to share that Workdynamic Australia has been named as the winner of the Employment Specialist Firm of the Year in the 2020 Australasian Law Awards.

These awards showcase achievements across the legal profession in Australia and New Zealand. Winning this award is a highly prestigious accolade and reflects the continuing growth of the firm, after having been named as a finalist in 2015, 2016, 2017, 2018, and ‘Highly Commended’ finalist in 2019.

This recognition celebrates our growth as a firm, and our achievements in the face of what has been a challenging year for all. Our thanks go out to our wonderful staff, and our amazing clients, without whom all of this would not have been possible. We are proud that our values and culture as a firm that ‘does things differently’ is recognised and rewarded by the wider profession.

Our Team

Since its inception in 2013, Workdynamic has continued to expand, develop, and strive, and now boasts 33 staff members. The firm is headed by Lauren Barel, Jonathan Wright, Jane Wright, Kathy Dalton and Kate Peterson, who each worked in Australia’s leading employment law practices for over a decade before founding or joining Workdynamic.
Our directors are supported by a skilled team with extensive experience in industrial and employment law, mediation and conciliation services, and in conducting investigations for a broad range of private, government and not-for-profit organisations. We have staff permanently located in New South Wales, Victoria and Queensland.

Our Clients

Workdynamic’s clearest success is reflected in our enduring relationships with clients. A key part of our Award submission was to point to the confidence and trust we have built with clients. For example: “impressed with their professionalism, expertise and more importantly true partnership and understanding of our business needs. They have adapted to our requests and provide onsite support, coaching and training in addition to their legal advice. Just brilliant, thank you!”
Our knowledge and commerciality is demonstrated by repeat instructions and an expanding client portfolio, servicing clients throughout all of Australia’s states and territories, as well as New Zealand.

We pride ourselves on delivering excellence in customer service, consistent quality, effective communication, responsiveness and flexibility, and value for our clients.

Click here for more information on our services and team.