Does your employer have to give you a contract when starting work? What is workplace bullying? What are your rights when being made redundant? Can what you post on a blog, Facebook page or Twitter feed affect your employment? What are your rights when your employment is terminated? Russell Kennedy's Workplace Relations, Employment and Safety team give you some answers...

1. Your Rights At
Work
Ben Tallboys
Senior Associate
Terri Abeysekera
Associate
12 May 2014

2. The information contained in this
presentation is intended as general
commentary and should not be regarded as
legal advice. Should you require specific
advice on the topics or areas discussed
please contact the presenter directly.
Disclaimer
2

3. Starting employment

4. An employee should receive:
>Fair Work Information Statement
>Tax declaration form
>Superannuation fund nomination form
>Employment contract?
Commencing employment
4

5. >Agreement that you will work in return
for wages
>Various forms of employment contracts
>Implied employee obligations
What is an employment
contract?
5

6. Minimum Legal Standards
> National Employment Standards
> Modern Awards, Enterprise Agreements
and Individual Flexibility Arrangements
> Guarantee of Annual Earnings
Terms and conditions in
employment contracts
6

7. What happens if there are
changes to my employment?

8. >May arise as a result of a number of
factors
>Proposed changes or variations should
be discussed with you
>Fundamental changes to a contract
can create a new contract
Changes to employment
contracts
8

9. Workplace Bullying

10. What is ‘workplace bullying’?
“Workplace bullying is characterised by
persistent and repeated negative behaviour
directed at an employee that creates a risk
to health and safety.”
“Your guide to workplace bullying –
prevention and response”
Victorian WorkCover Authority

11. Examples of bullying-type
behaviour
> Verbal and physical abuse
> Rumours, isolation and exclusion
> Micromanagement
> Vexatious complaints
> Unreasonable working arrangements

12. Reasonable management
action taken in a reasonable
manner is not bullying.

13. Management action
> Setting deadlines or targets
> Performance appraisal and management
> Disciplinary action
> Transfers, restructures and organisational
change
> Allocating work and rostering
> Decisions regarding promotion and pay
> Constructive criticism

14. Taken in a reasonable manner
> Reasonable grounds
> Procedural fairness
> Compliance with policies
> Communication styles
> Context
> Timeliness

15. What can you do about
workplace bullying?
> Informal steps
> Fair Work Commission
> WorkSafe
> WorkCover
> Victoria Police

16. Informal steps
> Talk to the person
> Talk to HR or Management
> Following bullying or grievance policies

17. Fair Work Commission
Bullying jurisdiction
> Commenced 1 January 2014
> Applies to “constitutionally covered businesses”
> Worker can complain to Fair Work Commission
> Commission must commence dealing with
complaint within 14 days
> Commission may make orders to manage
bullying

18. Social media in the workplace
18

19. Can what you post on a blog,
Facebook page or Twitter feed
affect your employment?

20. Inappropriate use of social media:
>Likely to cause serious damage to the
relationship between the employee and
employer
>Damages the employer’s interests, or
>Incompatible with the employee’s
duties as employee
Social media and work

21. Facebook post:
> "On behalf of all the staff at The
Credit Corp Group I would like to
welcome our newest victim of butt
rape, [names new employee]. I'm
looking Forward to sexually
harassing you behind the stationary
cupboard big boy."
Little v Credit Corp Group Limited t/as
Credit Corp Group [2013] FWC 9642
21

22. Court:
> “The fact the applicant made the Facebook
comments in his own time is of no consequence. It
was not when the comments were made which is
important, but the effect and impact of those
comments on the respondent, its other employees
and on the new employee.”
Little v Credit Corp Group Limited t/as
Credit Corp Group [2013] FWC 9642
22

23. > “The comments that were made during the course
of that conversation were not made as a post on a
Facebook 'wall' that was then accessible to the
'Friends' of either party, or as a tweet that has wide
ranging capability to be viewed by many followers.”
- Wilkinson-Reed v Launtoy Pty Ltd T/A
Launceston Toyota [2014] FWC 644
However, context is key...
23

24. An employee’s rights and
options when dismissed

25. >Understand why the dismissal is
happening
>Be open and honest when challenging
the decision
>Check your final pay
>Remember the 21 day deadline!
Key points
25

26. >Dismissal must be confirmed in writing
>Notice or pay in lieu
• Except for summary dismissal
>Accrued entitlements
• Annual leave
• Long service leave
>Statement of service
Minimum entitlements
26

27. >Enterprise Agreements or Employment
Contracts
• Right to additional notice
• Right to additional pay
• Right to warnings
Additional entitlements
27

28. Redundancy

29. >Job no longer required to be performed
by anyone
>Redeployment must be considered
>Consultation
>Notice requirements
>Redundancy pay
Redundancy
29

30. Making an Unfair Dismissal
claim

31. >Permanent employees
>Minimum employment period
• 6 months generally
• 12 months for a small business
>Earning less than $129,300 per annum
>Employees covered by an Award or
Enterprise Agreement
Who can apply?
31

32. >The dismissal must be harsh, unjust or
unreasonable
>It does not include:
• Resignation (except constructive dismissal)
• Genuine redundancy
What is an unfair dismissal?
32

33. >There must be a valid reason for
dismissal
>It must be proportionate
• Is there serious misconduct?
• Were warnings given or appropriate?
>It must be equitable
• Have other employees received similar
treatment?
Substantial fairness
33

34. >Opportunity to respond
• Know the allegations
• Do you need time to respond?
• Be honest!
>Warnings or opportunity to improve
>Support persons
>Additional requirements
Procedural fairness
34

35. The process
35
Decision and order
Conference or Hearing
Conciliation
Apply to Fair Work Commission (21 days)

36. >Reinstatement
• Default option
>Compensation
• Up to six months’ pay
• Deductions for misconduct
>Normally, costs not recoverable
Outcomes for unfair dismissal
36

37. Making a General Protections
claim

38. An employer cannot take adverse action
against an employee:
• because the employee has a workplace
right
• because the employee has exercised a
workplace right
• to prevent the employee exercising a
workplace right
Workplace rights
38

39. >National Employment Standards
• E.g. annual leave, sick leave, parental leave
>Statutory rights
• E.g. long service leave
>Award or EBA rights
• E.g. allowances, additional leave
>Right to make a complaint or inquiry
• E.g. bullying, OH&S
Examples of workplace rights
39

40. An employer must not take adverse action
against an employee because of:
Discrimination
40
> Race
> Colour
> Sex
> Sexual preference
> Age
> Marital status
> Religion
> Pregnancy
> Disability
> Family or carer’s
responsibilities
> Political opinion
> National extraction
> Social origin
> Temporary
> Absence due to illness or
injury

41. >Reduction in hours or benefits
>Differential treatment
>Warnings
>Dismissal
What is adverse action?
41

42. General protections process
42
Conference
Certificate
issued
Application to
Federal Court
or Circuit Court
Arbitration at
FWC

43. >Employer has the burden of disproving
the employee’s claim
>BUT fairness not relevant
How is the claim decided?
43

44. >Injunctions and reinstatement
>Compensation
>Penalties
>Normally, costs not recoverable
Outcomes
44

45. Remember, seek help when in
doubt!

46. And remember the 21 day
deadline!

47. Contact details
Ben Tallboys
Senior Associate
Ph: 8640 2360
E: btallboys@rk.com.au
Terri Abeysekera
Associate
Ph: 8602 7226
E: tabeysekera@rk.com.au
For more information about the services offered by
Russell Kennedy, please visit us at www.rk.com.au