CONTINUING
PROFESSIONAL
DEVELOPMENT
SEMINAR
Core Skills for Union Lawyers
Thursday 31 October 2013
Maurice Blackburn acknowledges the
traditional owners of the land on which we
gather, and we pay our respects to elders
pa...
WELCOME


Part 1 - Bob Reed: Ethics for Union Lawyers



Part 2 - Cate Hartigan: Professional Skills



Morning tea bre...
OUR HISTORY
 Founded in 1919
 Maurice Blackburn – distinguished lawyer and Labor member of Parliament.
 Dedicated to wo...
OUR SERVICES
 Employment & Industrial Law
 Workers Compensation & Work Injuries
 Road Accident Injuries
 Medical Negli...
OUR OFFICES
PART 1: ETHICS FOR UNION
LAWYERS

Bob Reed, Barrister
ANY QUESTIONS?
Bob Reed
Barrister-at-law
07 3236 5844
rreed@qldbar.asn.au
PART 2: PROFESSIONAL
SKILLS

Cate Hartigan, Barrister
Murray Gleeson Chambers
UNFAIR DISMISSALS BENCHBOOK
• produced by the Fair Work Commission
• content should be used as a guide only
• do not rely ...
Naming Conventions
Page 10 of 181

• Party names
- Applicant (ie the employee who lodged the
application)
- Respondent (th...
What is an Unfair Dismissal?
Page 14 of 181

• objects of unfair dismissal provisions (s 381 Fair
Work Act)
• definition o...
Making an Application
page 15 of 181

• Application to be lodged within 21 days after the day
the dismissal takes effect
•...
Discontinuing an Application
Page 16 of 181

• Discontinuing – s 588 Fair Work Act
• Discontinuance filed by mistake or un...
When is a person protected from unfair dismissal?
Page 18 of 181

• An employee of a national system employer who has
been...
People excluded from National Unfair Dismissal Law
Page 21 of 181

Independent Contractors
Labour Hire Workers

Vocational...
What is a Constitutional Corporation?
Page 30 of 181

• S 12 Fair Work Act definition “a corporation to which
paragraph 51...
What does “dismissed” mean?
Page 34 of 181

• “dismissed” s 386 Fair Work Act
- A person’s employment has been terminated ...
Terminated at the Employer’s Initiative
Page 35 of 181

The action of the employer must cause the
termination (you can use...
Forced Resignation
- constructive dismissal
- Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200, 206
- heat of the...
High income threshold
High income threshold
- S 382 Fair Work Act threshold – currently
$129,500 (adjusted annually on 1 J...
• Non-monetary earnings

 superannuation – not included in an employee’s
earnings;
- Any super paid in excess of compulso...
Modern Award Coverage
Principal Purpose Test
- the test is applied to the work performed at the time of the
dismissal – ie...
Application of an Enterprise Agreement
Page 51 of 181

Covers
- an agreement covers if it is expressed to do so
- coverage...
What is the minimum period of employment?
S 383 FWA
- 6 months; or
- 1 year where employer a small company
• Calculation o...
What is a transfer of employment?
Page 61 of 181

• Service with one employer will count as service with a second
employer...
Periods of service as a casual employee
Page 63 of 181

- does not count towards the minimum employment period
unless:
1. ...
What is a genuine redundancy?
• S 389 FWA
• Genuine redundancy when:
- the employer no longer requires the person’s job to...
The small business fair dismissal code
Page 79 – 82 of 181
When does a dismissal take effect?
Page 82 of 181

• a dismissal does not take effect unless and until it is
communicated ...
Power to dismiss applications
Page 90 of 181

• S 399A and 587 FWA
• general powers of the Commissioner
- S 587(1)
- appli...
What makes a dismissal unfair?
What is harsh, unjust or unreasonable?
What does “must take into account” mean?
• factors a...
Valid reason relating to capacity or conduct
Page 100 of 181

Valid reason
• sound, defensible and well founded
Capacity
•...
Notification of reason for dismissal
Page 111 of 181

• S 387(b) FWA
• Notification to be given to employee:
- before the ...
Opportunity to Respond
Page 114 of 181

• S 387(c) FWA
• opportunity to respond must be given before the decision to
termi...
Unreasonable Refusal of a support person
Page 117 of 181

• S 387(a) FWA
• no positive obligation to offer opportunity for...
Warnings – unsatisfactory performance
When are warnings relevant?
• timing of the warning
How should a warning be given?
•...
Other relevant matters
Page 124 of 181

•
•
•
•

see section 387(h) of the FWA
differential treatment
long unblemished wor...
Remedies

Reinstatement
-

what does an order for reinstatement mean?

-

when is reinstatement not appropriate?

-

re-ap...
•

Compensations

-

criteria for deciding amounts

-

the effects of the order on the viability of the employers enterpri...
Evidence
Page 157 of 181

• S 590 and s 591 FWA
• commission has power to inform itself
• not bound by the rules of eviden...
Costs
Page 158 of 181

• ss 400A, 401, 402 and 611 FWA
General Rule: a party pays their own costs
• Commission does have p...
Appeals
Page 170 of 181

• S 400 FWA
- lodged within 21 days
- whether permission to appeal should be granted
- whether th...
Practice Notes
• fair hearings PN 2/2013
• unfair dismissal proceeding (draft practice note)
PART 3: PRACTICE
MANAGEMENT
Do as I say, not as I do: The Role of
Policies in the Workplace
Giri Sivaraman, Principal
OVERVIEW
 The role of workplace policies
 The effect of a workplace policy



Vicarious liability of employers
– S793 o...
OVERVIEW (CONT.)
 Elements of a good policy
 When are company policies considered contractually binding?
-

Case study: ...
THE ROLE OF WORKPLACE
POLICIES
There are a number of reasons why an employer should put policies and procedures in
place, ...
THE EFFECT OF A WORKPLACE
POLICY


In some circumstances, the requirement to comply with a workplace policy
can be consid...
VICARIOUS LIABILITY OF EMPLOYERS:
S793 OF THE FAIR WORK ACT
Section 793 of the Act provides that:


the conduct of an off...
WHAT DOES S793 MEAN?
The effect of Section 793 of the Fair Work Act is that employers can, in certain
circumstances, be he...
VICARIOUS LIABILITY CONT.


S106 SDA. Employer is vicariously liable for actions of employees unless it
can show reasonab...
WHAT KIND OF POLICIES SHOULD
YOU HAVE?
Policies are a common tool for ensuring risk minimisation to the employer and
emplo...
CASE STUDY: NOT HAVING A
POLICY
LINFOX AUSTRALIA PTY LTD V STUTSEL [2012] FWAFB 7097

Stutsel was dismissed for having pos...
LINFOX V STUTSEL (CONT.)
The Commissioner considered:


the special circumstances surrounding the employee and his termin...
CASE STUDY: NOT IMPLEMENTING
A POLICY
B, C AND D V AUSTRALIA POST [2013] FWCFB 6191


Three employees were summarily dism...
B, C AND D V AUST POST (CONT.)
The Full Bench Commission found that there had been a valid reason for the
dismissals:


t...
B, C AND D V AUST POST (CONT.)


[37] A prohibition on using an employer‟s IT system to access, send or
receive and store...
B, C AND D V AUST POST (CONT.)


The employer is entitled to ensure that its resources, including its IT
resources, are d...
B, C AND D V AUST POST (CONT.)
However, the Full Bench Commission considered the dismissals to be harsh,
and therefore, to...
ELEMENTS OF A GOOD POLICY
A good policy should:


establish the objective;



identify who is bound to observe the polic...
WHEN ARE COMPANY POLICIES
CONSIDERED CONTRACTUALLY
BINDING?
Whilst employment contracts commonly refer to company guidelin...
CASE STUDY
RIVERWOOD INTERNATIONAL V MCCORMICK (2000) 177 ALR 193
In Riverwood, an employee agreed to “abide by all Compan...
RIVERWOOD (CONT.)
Although the employee was considered to be bound to observe future policies
and practices, it does not m...
CONTRACTUAL VS ASPIRATIONAL
POLICIES
Although a company policy or procedure is referred to in the employment
contract, it ...
ASPIRATIONAL POLICIES
Clauses are likely to be considered as being merely aspirational where the
language used is:


desc...
CASE STUDY
Nikolich v Goldman Sachs [2006] FCA 784 and [2007] FCAFC 120

Nikolich was a financial advisor who claimed his ...
NIKOLICH (CONT.)
The question in Nikolich –
Whether the company policy document entitled “Working With Us”, which was
sent...
“LEGALLY BINDING”: FACTORS
THE COURT CONSIDERS
In making its decision, the Court in Nikolich referred to a number of facto...
WHAT IF THE POLICY IS EXCLUDED
FROM THE CONTRACT?


Employers often have a „get out‟ clause.



Do as I say but not as I...
CASE STUDY
Commonwealth Bank of Australia v Barker [2013] FCAFC 83
Barker, a longstanding employee at the Commonwealth Ban...
THE IMPORTANCE OF PROPER
TRAINING
There is little utility in having ardent workplace policies where there is no
supportive...
FOSTERING A WORKPLACE
CULTURE
In order to foster a positive attitude and culture in the workplace:

The employer should co...
ANY QUESTIONS?
Giri Sivaraman
Principal – Employment and Industrial Law Section
02 8261 0931
gsivaraman@mauriceblackburn.c...
This information is prepared for the purposes of the seminar conducted on 31 October 2013 only. The content of this paper ...
Upcoming SlideShare
Loading in …5
×

QLD CPD Seminar: Ethics, Professional Skills & Practice Management

890 views

Published on

Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.

Published in: Education, Business, Technology
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
890
On SlideShare
0
From Embeds
0
Number of Embeds
2
Actions
Shares
0
Downloads
4
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

QLD CPD Seminar: Ethics, Professional Skills & Practice Management

  1. 1. CONTINUING PROFESSIONAL DEVELOPMENT SEMINAR Core Skills for Union Lawyers Thursday 31 October 2013
  2. 2. Maurice Blackburn acknowledges the traditional owners of the land on which we gather, and we pay our respects to elders past and present.
  3. 3. WELCOME  Part 1 - Bob Reed: Ethics for Union Lawyers  Part 2 - Cate Hartigan: Professional Skills  Morning tea break  Part 3 - Giri Sivaraman: Practice Management
  4. 4. OUR HISTORY  Founded in 1919  Maurice Blackburn – distinguished lawyer and Labor member of Parliament.  Dedicated to worker‟s rights.  Defence of underprivileged groups.  Determined to make a genuine difference for people who need help  Fight hard for best possible outcome.
  5. 5. OUR SERVICES  Employment & Industrial Law  Workers Compensation & Work Injuries  Road Accident Injuries  Medical Negligence  Asbestos & Dust Diseases  Superannuation & Disability Insurance  Public Liability  Faulty Products  Comcare  Will Disputes  Class Actions
  6. 6. OUR OFFICES
  7. 7. PART 1: ETHICS FOR UNION LAWYERS Bob Reed, Barrister
  8. 8. ANY QUESTIONS? Bob Reed Barrister-at-law 07 3236 5844 rreed@qldbar.asn.au
  9. 9. PART 2: PROFESSIONAL SKILLS Cate Hartigan, Barrister Murray Gleeson Chambers
  10. 10. UNFAIR DISMISSALS BENCHBOOK • produced by the Fair Work Commission • content should be used as a guide only • do not rely on the Benchbook as authority at a hearing!
  11. 11. Naming Conventions Page 10 of 181 • Party names - Applicant (ie the employee who lodged the application) - Respondent (the former employer) • Who are the parties - Applicant is the individual who was dismissed. - Respondent – be sure to commence proceeding against employing entity - Look at contract of employment, industrial instrument or ATO documents to identify the proper respondent.
  12. 12. What is an Unfair Dismissal? Page 14 of 181 • objects of unfair dismissal provisions (s 381 Fair Work Act) • definition of unfair dismissal (s 385 Fair Work Act) • “fair go all round”.
  13. 13. Making an Application page 15 of 181 • Application to be lodged within 21 days after the day the dismissal takes effect • calculation of 21 days • multiple actions precluded
  14. 14. Discontinuing an Application Page 16 of 181 • Discontinuing – s 588 Fair Work Act • Discontinuance filed by mistake or under duress • Naraydn v MW Engineers Pty Ltd [2003] FWCFB 2538 (unreported Ross J, Sams DP, Ball C, 29 April 2013) [14]
  15. 15. When is a person protected from unfair dismissal? Page 18 of 181 • An employee of a national system employer who has been dismissed is eligible, to make an application for unfair dismissal remedy if: - they have completed the minimum period of employment; and - they earn less than the high income threshold (currently $129,300 pa); or - their employment is covered by a modern award or enterprise agreement.
  16. 16. People excluded from National Unfair Dismissal Law Page 21 of 181 Independent Contractors Labour Hire Workers Vocational Placements Volunteers Public Sector employees (non-national system employees)
  17. 17. What is a Constitutional Corporation? Page 30 of 181 • S 12 Fair Work Act definition “a corporation to which paragraph 51(xx) of the Constitution applies: - Trading or financial corporation
  18. 18. What does “dismissed” mean? Page 34 of 181 • “dismissed” s 386 Fair Work Act - A person’s employment has been terminated at the employer’s initiative; or - A person was forced to resign because of the conduct or course of conduct engaged in by the employer.
  19. 19. Terminated at the Employer’s Initiative Page 35 of 181 The action of the employer must cause the termination (you can use the “but for” test) Repudiation – a repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract: Visscher v Giudice(2009) 239 CLR 361 [81].
  20. 20. Forced Resignation - constructive dismissal - Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200, 206 - heat of the moment resignation Demotion - employment continues but involves a significant reduction in duties and/or remuneration. - new contract of employment. - check industrial instrument doesn’t allow for demotion. Employment limited to the duration of a training arrangement or contracts for specific time periods/tasks/specified season
  21. 21. High income threshold High income threshold - S 382 Fair Work Act threshold – currently $129,500 (adjusted annually on 1 July) What are earnings? - S 332 Fair Work Act - wages - amounts dealt with on the employee’s behalf or as the employee directs; and - Agreed money value of non-monetary benefits
  22. 22. • Non-monetary earnings  superannuation – not included in an employee’s earnings; - Any super paid in excess of compulsory contributions may be included in the employee’s earnings;  Vehicles - value of private use of vehicle can be included in earnings; - application of formula by the Commission - fringe benefit tax – depends on whether the employee directs how the amount is to be dealt with
  23. 23. Modern Award Coverage Principal Purpose Test - the test is applied to the work performed at the time of the dismissal – ie the principle purpose for which the employee was employed Interpreting coverage clauses - words of coverage clause to be given ordinary general meaning - courts should attempt to give terms a meaning that is consistent with the intentions of the parties.
  24. 24. Application of an Enterprise Agreement Page 51 of 181 Covers - an agreement covers if it is expressed to do so - coverage clause ordinarily specified the parties Applies - the agreement is in operation - the agreement covers the employee; and - no provision of the FWA has the effect that the agreement does not apply Effect of an Enterprise Agreement applying - s 51 FWA - confers entitlements and imposes obligations Individual Agreements - reference to “enterprise agreement” includes an agreement based transitional instrument
  25. 25. What is the minimum period of employment? S 383 FWA - 6 months; or - 1 year where employer a small company • Calculation of minimum period - a month means a calendar month - commences on employee’s first day at work • Meaning of “continuous service” - not defined in FWA - period of unbroken service with an employer by an employee - break in service – resignation, dismissal or transfer of employment
  26. 26. What is a transfer of employment? Page 61 of 181 • Service with one employer will count as service with a second employer in different circumstances • Are the employers associated entities?
  27. 27. Periods of service as a casual employee Page 63 of 181 - does not count towards the minimum employment period unless: 1. the casual employee was employed on a regular and systemic basis; and 2. the casual employee had a reasonable expectation of ongoing employment over a regular and systemic basis.
  28. 28. What is a genuine redundancy? • S 389 FWA • Genuine redundancy when: - the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and - the employer has not complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about redundancy.
  29. 29. The small business fair dismissal code Page 79 – 82 of 181
  30. 30. When does a dismissal take effect? Page 82 of 181 • a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. • communication of dismissal: - can be oral - trend towards dismissal by text being unfair • late lodgement of application - exceptional circumstances; - representative error - prejudice - merits
  31. 31. Power to dismiss applications Page 90 of 181 • S 399A and 587 FWA • general powers of the Commissioner - S 587(1) - application - not made in accordance with the FWA; or - is frivolous or vexatious; or - has no reasonable prospects of success - effect of settlement agreements; - frivolous of vexatious for having no reasonable prospect of success - S 399A
  32. 32. What makes a dismissal unfair? What is harsh, unjust or unreasonable? What does “must take into account” mean? • factors are mandatory considerations Facts acquired after dismissal • facts an employer unaware of at time of dismissal may be taken into account
  33. 33. Valid reason relating to capacity or conduct Page 100 of 181 Valid reason • sound, defensible and well founded Capacity • employee’s ability to do the job required • protected due to temporary absence for illness or injury Conduct • did conduct actually occur (BOP) • serious misconduct – Regulation 1.07 • out of hours conduct • fighting or assault • safety and welcome of other employees
  34. 34. Notification of reason for dismissal Page 111 of 181 • S 387(b) FWA • Notification to be given to employee: - before the decision to terminate is made - in explicit terms; and - in plain and clear terms
  35. 35. Opportunity to Respond Page 114 of 181 • S 387(c) FWA • opportunity to respond must be given before the decision to terminate is made • need not be a formal process
  36. 36. Unreasonable Refusal of a support person Page 117 of 181 • S 387(a) FWA • no positive obligation to offer opportunity for a support person • relevant is there was an unreasonable refusal
  37. 37. Warnings – unsatisfactory performance When are warnings relevant? • timing of the warning How should a warning be given? • must identify aspect that needs to be improved • must make clear employment is at risk of no improvement
  38. 38. Other relevant matters Page 124 of 181 • • • • see section 387(h) of the FWA differential treatment long unblemished work history summary dismissal
  39. 39. Remedies Reinstatement - what does an order for reinstatement mean? - when is reinstatement not appropriate? - re-appointed to their previous position - appointed to another position no less favourable - order to maintain continuity - order to restore lost pay
  40. 40. • Compensations - criteria for deciding amounts - the effects of the order on the viability of the employers enterprise - length of service - calculation for compensation - the Sprigg formula - mitigation - remuneration
  41. 41. Evidence Page 157 of 181 • S 590 and s 591 FWA • commission has power to inform itself • not bound by the rules of evidence
  42. 42. Costs Page 158 of 181 • ss 400A, 401, 402 and 611 FWA General Rule: a party pays their own costs • Commission does have power to award costs in certain circumstances
  43. 43. Appeals Page 170 of 181 • S 400 FWA - lodged within 21 days - whether permission to appeal should be granted - whether there has been an error in the original decision
  44. 44. Practice Notes • fair hearings PN 2/2013 • unfair dismissal proceeding (draft practice note)
  45. 45. PART 3: PRACTICE MANAGEMENT Do as I say, not as I do: The Role of Policies in the Workplace Giri Sivaraman, Principal
  46. 46. OVERVIEW  The role of workplace policies  The effect of a workplace policy  Vicarious liability of employers – S793 of the Fair Work Act – S106 of the Sex Discrimination Act 1984 (Cth)  What kind of policies should you have?  What happens if you don‟t have a policy or don‟t implement it - Case study: Stutsel - Case study: B, C and D Practice Management 46
  47. 47. OVERVIEW (CONT.)  Elements of a good policy  When are company policies considered contractually binding? - Case study: Riverwood  Contractual vs Aspirational policies  Case study: Nikolich  What if the policy is excluded from the contract – Case study: Barker  The importance of proper workplace training  Fostering a workplace culture Practice Management 47
  48. 48. THE ROLE OF WORKPLACE POLICIES There are a number of reasons why an employer should put policies and procedures in place, including:  ensuring compliance with legislative requirements. Examples: – Sexual harassment legislation; – Discrimination legislation; and – Occupational health and safety legislation  promoting standards for workplace behaviour. Examples: – regulating internet and email usage at work; – prohibiting drug and alcohol usage at work;  prescribing employment conditions, entitlements and benefits. Practice Management 48
  49. 49. THE EFFECT OF A WORKPLACE POLICY  In some circumstances, the requirement to comply with a workplace policy can be considered to constitute a lawful and reasonable direction by an employer.  An appropriate policy that is properly implemented will limit liability. Practice Management 49
  50. 50. VICARIOUS LIABILITY OF EMPLOYERS: S793 OF THE FAIR WORK ACT Section 793 of the Act provides that:  the conduct of an officer, employee or agent of a body corporate (where within the scope of his/her actual or apparent authority) is taken to be the conduct of the body corporate. Practice Management 50
  51. 51. WHAT DOES S793 MEAN? The effect of Section 793 of the Fair Work Act is that employers can, in certain circumstances, be held liable for the actions of their officers, agents and employees. This means that an employer may be held vicarious liable for the wrongful conduct of its officers, agents and employees where the conduct is performed with the person‟s actual or apparent authority. That authority can be defined by reference to policies in the workplace Practice Management 51
  52. 52. VICARIOUS LIABILITY CONT.  S106 SDA. Employer is vicariously liable for actions of employees unless it can show reasonable steps to prevent harassment/discrimination.  Responsibility of employers for employees breaches will be determined by reference to policies themselves and efforts made by employers to fully and properly inform employees of policies and ramifications of terms (Cooper v Western Area Local Health Network [2012] NSWADT 39. Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 52
  53. 53. WHAT KIND OF POLICIES SHOULD YOU HAVE? Policies are a common tool for ensuring risk minimisation to the employer and employees.  Discrimination and harassment  Grievances  IT  Social media Practice Management 53
  54. 54. CASE STUDY: NOT HAVING A POLICY LINFOX AUSTRALIA PTY LTD V STUTSEL [2012] FWAFB 7097 Stutsel was dismissed for having posted a number of negative comments about his managers at Linfox on his Facebook page. He brought an unfair dismissal application before the Fair Work Commission, where the Commissioner was required to consider whether:  there was a valid reason for the dismissal; and  in all the circumstances, the dismissal was “harsh, unjust or unreasonable”. Practice Management 54
  55. 55. LINFOX V STUTSEL (CONT.) The Commissioner considered:  the special circumstances surrounding the employee and his termination;  the employee‟s limited understanding as to the privacy of Facebook communications;  the employee‟s long and satisfactory employment record at Linfox; and  The failure of the employer to have a social media policy and held that the dismissal was unfair in that it was harsh, unjust or unreasonable. Practice Management 55
  56. 56. CASE STUDY: NOT IMPLEMENTING A POLICY B, C AND D V AUSTRALIA POST [2013] FWCFB 6191  Three employees were summarily dismissed for emailing pornography in breach of the Australia Post IT policy.  The three men brought unfair dismissal applications before the Fair Work Commission, arguing that their dismissal was either “harsh, unjust or unreasonable”. Practice Management 56
  57. 57. B, C AND D V AUST POST (CONT.) The Full Bench Commission found that there had been a valid reason for the dismissals:  the employees breached a reasonable policy that Australia Post considered to be an important policy; and  the employees knew, in general terms, that they were in breach of the policy. Practice Management 57
  58. 58. B, C AND D V AUST POST (CONT.)  [37] A prohibition on using an employer‟s IT system to access, send or receive and store pornography or other unacceptable material is a lawful, rational and reasonable policy for an employer to implement for a number of reasons that are not related to any moral offence at pornography. The main reasons are:  Limiting legal liability to other employees, clients, customers or other third parties, especially in relation to harassment. A reasonable employer will take steps to suppress conduct that it knows may cause offence to others. Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 58
  59. 59. B, C AND D V AUST POST (CONT.)  The employer is entitled to ensure that its resources, including its IT resources, are devoted solely to work purposes (and such reasonable personal use as it chooses to permit as owner or legal controller of its IT infrastructure). An employer can be legitimately concerned to prevent the diversion of its resources and the costs associated with such activity. Of course, the monetary and time cost involved in sending an email is very small. However, the wasting of work time by an employer accessing („surfing‟) such material may be significant.  Preventing reputational damage to the employer being identified to third parties or the public as tolerating such material or such misconduct.  [38] It is the first of these reasons that arguably is the most important. Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 59
  60. 60. B, C AND D V AUST POST (CONT.) However, the Full Bench Commission considered the dismissals to be harsh, and therefore, to be unfair. Factors influencing the Commission were:  the absence of policy enforcement or warnings by the employer;  the three appellants‟ substantial periods of satisfactory employment service of 17 years, 13 years and 11 years respectively;  the three appellants‟ good disciplinary records;  the culture at Australia Post in relation to inappropriate material; and  the harsh economic consequences for the appellants and their families. Practice Management 60
  61. 61. ELEMENTS OF A GOOD POLICY A good policy should:  establish the objective;  identify who is bound to observe the policy;  establish boundaries for workplace behaviour;  establish consequences for breach; and  be regularly updated in line with legislative change and workplace/community culture. Practice Management 61
  62. 62. WHEN ARE COMPANY POLICIES CONSIDERED CONTRACTUALLY BINDING? Whilst employment contracts commonly refer to company guidelines, manuals and codes, it is not always the case that these external documents form a part of the employment contract terms. The test from Toll (FGGT) Pty Ltd v Alphapharm Pty Ltd (2004) CLR 165 at 179: Would the reasonable person, in the position of the other party, believe that the person making the promise intended to be legally bound by it? Practice Management 62
  63. 63. CASE STUDY RIVERWOOD INTERNATIONAL V MCCORMICK (2000) 177 ALR 193 In Riverwood, an employee agreed to “abide by all Company Policies and Practices” in signing their employment contract. The range of the Company policies and practices that the employee was required to observe included those that were presently in place as well as future policies and practices. The Full Federal Court held that:  the express reference to the company‟s policies and practices in the employment contract gave the policies and practices a legal force; and  both the employee and the employer could insist upon performance of the policies and practices in contract law. Practice Management 63
  64. 64. RIVERWOOD (CONT.) Although the employee was considered to be bound to observe future policies and practices, it does not mean that employers can vary the policies and procedures unilaterally. As Justice North stated at [111]: Any alteration or addition to the company policies and practices could only achieve binding contractual effect if there was a separate agreement to such alterations or additions, either by way of variation of the existing agreement or by way of entering into a new agreement (emphasis added) Practice Management 64
  65. 65. CONTRACTUAL VS ASPIRATIONAL POLICIES Although a company policy or procedure is referred to in the employment contract, it does not always mean that that these documents are contractually binding upon the parties. Whether the company policy or procedure and its terms is contractually binding will depend on the language it uses. Practice Management 65
  66. 66. ASPIRATIONAL POLICIES Clauses are likely to be considered as being merely aspirational where the language used is:  descriptive;  aspirational;  non-promissory;  informational;  encouraging; and  educational Aspirational clauses may be contrasted with clauses that use more promissory language. Practice Management 66
  67. 67. CASE STUDY Nikolich v Goldman Sachs [2006] FCA 784 and [2007] FCAFC 120 Nikolich was a financial advisor who claimed his supervisor‟s bullying and harassment breached the bullying and harassment policy at work. He argued the claim under breach of contract, stating that the supervisor‟s conduct had breached the bullying and harassment policy which was legally binding on his employer. Practice Management 67
  68. 68. NIKOLICH (CONT.) The question in Nikolich – Whether the company policy document entitled “Working With Us”, which was sent to the employee at the same time as the letter of appointment, formed a part of the employee‟s employment contract. The Court held that the company policy on bullying and harassment did form a part of the employment contract. Practice Management 68
  69. 69. “LEGALLY BINDING”: FACTORS THE COURT CONSIDERS In making its decision, the Court in Nikolich referred to a number of factors which indicated that the company policy was contractually binding and not merely aspirational:  the language used was promissory (for example, by using the terms “comply” and “abide”);  the language was obligatory (for example, by using the terms “duty” and “ensure”); and  the obligations were specifically stated rather than generally referred to. Also relevant to the Court‟s decision that the policy was contractually binding was the fact that the employee was required to sign off to stipulate that they had read and understood the policy. Practice Management 69
  70. 70. WHAT IF THE POLICY IS EXCLUDED FROM THE CONTRACT?  Employers often have a „get out‟ clause.  Do as I say but not as I do.  The contract states that policies do not form terms and conditions of the contract.  The legal position on such a term has changed.  Also need to consider the cultural effect of such terms. Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 70
  71. 71. CASE STUDY Commonwealth Bank of Australia v Barker [2013] FCAFC 83 Barker, a longstanding employee at the Commonwealth Bank, successfully argued that his employer had breached the implied term of mutual trust and confidence in his employment contract by failing to comply with its redeployment procedure in the event of a redundancy. Important factors considered by the Full Federal Court included:  Barker‟s 27 years of service;  the Bank‟s considerable corporate size and its consequential capacity to redeploy Barker; and  the terms in the employment contract relating to the Bank‟s redeployment policy. Practice Management 71
  72. 72. THE IMPORTANCE OF PROPER TRAINING There is little utility in having ardent workplace policies where there is no supportive workplace training to support, foster and maintain a work culture that respects those policies. What helps? By implementing adequate policies and proper training into the workplace, the risk of vicarious liability the employer is diminished in relation to OHS, sexual harassment and discrimination claims by employees. Practice Management 72
  73. 73. FOSTERING A WORKPLACE CULTURE In order to foster a positive attitude and culture in the workplace: The employer should commit to be bound by the same policies and procedures which bind the employees. An employer who agrees to be bound by its own policies and procedures shows to its workforce their importance and value at work. Practice Management 73
  74. 74. ANY QUESTIONS? Giri Sivaraman Principal – Employment and Industrial Law Section 02 8261 0931 gsivaraman@mauriceblackburn.com.au Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 74
  75. 75. This information is prepared for the purposes of the seminar conducted on 31 October 2013 only. The content of this paper is not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the Personal Injury content of the foregoing but should take appropriate legal advice.

×