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.
Philippine Labor Laws
Authorized Causes for Dismissal of Employee
Employee Discipline and Termination
The two most commonly used grounds for termination of employee are the Authorized Causes under Article 283 and 284 of the Labor Code, and the Just Causes under Article 282. Below are the authorized causes for termination of employment.
As maybe broadly defined, authorized causes for dismissal of employee refer to those lawful grounds for termination which in general do not arise from fault or negligence of the employee. “Authorized causes” are distinguished from “just causes” under Article 282 in that the latter are always based on acts attributable to the employee’s own fault or negligence.
Eighteen months on from its introduction, the Labor Government’s Fair Work Act continues to create challenges for SME employers, many of whom are still struggling to understand the implication of new National Employment Standards, the new Modern Awards regime and changes to rules around redundancy provisions, unfair dismissal and bargaining.
In this presentation, industrial relations lawyer Patricia Ryan will look at the key areas that SMEs are still coming to grips with, and provide advice on in range of areas.
This is a comparative study on the topic of Compensation for Retrenchment. I choose to compare the concept between Malaysia, United Kingdom, Australia, and Singapore.
Calculation of Damages in Wrongful Termination LitigationThomas Econometrics
The document provides guidance on calculating economic damages in wrongful termination litigation. It discusses calculating compensation the plaintiff would have earned if not terminated ("but for" compensation) and compensation after termination given mitigation efforts ("given" compensation). The difference between the two is the damages amount. Calculating each compensation stream involves estimating back pay, front pay, and lost benefits according to the specific circumstances of the plaintiff and labor market data. Reasonable mitigation efforts by the plaintiff to seek comparable employment must also be considered.
The document discusses various key aspects of Indian employment and labour laws, including the Industrial Employment (Standing Orders) Act 1946. It explains provisions around standing orders, retrenchment notice periods, layoff compensation, prohibition of illegal strikes/lockouts, unfair labour practices, and definitions of terms like "worker", "industry", "industrial dispute", and "wages" under the Industrial Disputes Act. It also outlines the roles of various authorities established under the Act.
The document summarizes changes to UK employment law regarding contract variations, whistleblowing, tribunal fees, and employee shareholders.
On contract variations, it discusses variation clauses, implied terms of trust and confidence, gaining employee agreement, consideration, dismissal and rehiring. On whistleblowing, it outlines new requirements that disclosures be in the public interest and removes the good faith requirement. For tribunal fees, it introduces fees for claims and outlines the two-tier fee structure and fee remission system. Finally, it presents the new employee shareholder status that trades statutory rights for business shares.
Agency agreement, grounds for termination, skelly processHarve Abella
The document discusses contracting and subcontracting arrangements under Philippine labor law. It defines key terms like principal, contractor, and contractual employees. It outlines conditions for legitimate contracting, including written contracts and contractor registration. It also discusses grounds for termination, requirements for due process, and the consequences of legal and illegal termination.
Philippine Labor Laws
Authorized Causes for Dismissal of Employee
Employee Discipline and Termination
The two most commonly used grounds for termination of employee are the Authorized Causes under Article 283 and 284 of the Labor Code, and the Just Causes under Article 282. Below are the authorized causes for termination of employment.
As maybe broadly defined, authorized causes for dismissal of employee refer to those lawful grounds for termination which in general do not arise from fault or negligence of the employee. “Authorized causes” are distinguished from “just causes” under Article 282 in that the latter are always based on acts attributable to the employee’s own fault or negligence.
Eighteen months on from its introduction, the Labor Government’s Fair Work Act continues to create challenges for SME employers, many of whom are still struggling to understand the implication of new National Employment Standards, the new Modern Awards regime and changes to rules around redundancy provisions, unfair dismissal and bargaining.
In this presentation, industrial relations lawyer Patricia Ryan will look at the key areas that SMEs are still coming to grips with, and provide advice on in range of areas.
This is a comparative study on the topic of Compensation for Retrenchment. I choose to compare the concept between Malaysia, United Kingdom, Australia, and Singapore.
Calculation of Damages in Wrongful Termination LitigationThomas Econometrics
The document provides guidance on calculating economic damages in wrongful termination litigation. It discusses calculating compensation the plaintiff would have earned if not terminated ("but for" compensation) and compensation after termination given mitigation efforts ("given" compensation). The difference between the two is the damages amount. Calculating each compensation stream involves estimating back pay, front pay, and lost benefits according to the specific circumstances of the plaintiff and labor market data. Reasonable mitigation efforts by the plaintiff to seek comparable employment must also be considered.
The document discusses various key aspects of Indian employment and labour laws, including the Industrial Employment (Standing Orders) Act 1946. It explains provisions around standing orders, retrenchment notice periods, layoff compensation, prohibition of illegal strikes/lockouts, unfair labour practices, and definitions of terms like "worker", "industry", "industrial dispute", and "wages" under the Industrial Disputes Act. It also outlines the roles of various authorities established under the Act.
The document summarizes changes to UK employment law regarding contract variations, whistleblowing, tribunal fees, and employee shareholders.
On contract variations, it discusses variation clauses, implied terms of trust and confidence, gaining employee agreement, consideration, dismissal and rehiring. On whistleblowing, it outlines new requirements that disclosures be in the public interest and removes the good faith requirement. For tribunal fees, it introduces fees for claims and outlines the two-tier fee structure and fee remission system. Finally, it presents the new employee shareholder status that trades statutory rights for business shares.
Agency agreement, grounds for termination, skelly processHarve Abella
The document discusses contracting and subcontracting arrangements under Philippine labor law. It defines key terms like principal, contractor, and contractual employees. It outlines conditions for legitimate contracting, including written contracts and contractor registration. It also discusses grounds for termination, requirements for due process, and the consequences of legal and illegal termination.
The first of its kind, this seminar is held to provide participants with information and knowledge regarding a constructive dismissal where employee resigns as a result of the employer creating a hostile work environment.
The Workmen's Compensation Act, 1923 provides compensation to workmen and their dependents for injuries arising out of and in the course of employment. The Act applies to various hazardous occupations and establishments. It defines key terms like employer, dependant, disablement and wages. Employers are liable to pay compensation in cases of work-related injuries or death. The amount of compensation depends on the nature of injury, wages and relevant factors. It can be paid as lump sum or monthly payments. Commissioners are appointed to determine compensation amounts and resolve disputes. Appeals against commissioner's orders can be made to the High Court within 60 days.
This document discusses rules and regulations related to outsourcing. It outlines key factors in determining the employer-employee relationship for contract labor. The main points are that contract labor are employees of the contractor, not the principal employer, unless the principal exercises direct control and supervision. There must be a clear agreement between the principal employer and contractor regarding wages and benefits for contract laborers. The law does not prohibit outsourcing for any sector but certain labor acts and regulations apply for contract laborers performing similar work as regular employees.
The document provides an overview of proposed amendments to South African labour laws following negotiations in NEDLAC. Key points include:
- The proposed amendments address issues like atypical employment (temporary workers, fixed-term contracts, part-time work), dispute resolution, collective bargaining, and compliance/enforcement.
- Debate has occurred over 6 themes, with disagreement remaining between business and government representatives.
- The amendments could impact employers by deeming temporary staff to be direct employees after 6 months, requiring equal treatment of fixed-term and part-time workers, increasing security deposits for dispute reviews, and expanding trade union rights.
- Business representatives argue the amendments should be tested against an earlier regulatory impact
This document summarizes recent and proposed reforms to UK unfair dismissal law. Key points include:
- The qualifying period for unfair dismissal claims will increase to 2 years for employees hired after April 2012.
- Compensation awards will be capped at £74,200 or one year's salary.
- Fees of £250-£950 will be introduced for unfair dismissal claims from Summer 2013.
- From 2014, employees must contact ACAS to attempt conciliation before filing a tribunal claim.
- New "employee owner contracts" may allow employers to offer shares worth £2,000-£50,000 in exchange for employees giving up most unfair dismissal rights.
- Protected settlement discussions will be renamed but
Industrial disputes(causes and consequences)Raj Akki
This document discusses various types of industrial disputes and their causes and consequences. It defines an industrial dispute as any disagreement between employers and employees related to employment terms or conditions. Causes of disputes include industrial factors like wages and hours, management attitude issues, government machinery problems, and other issues like union rivalry. Consequences include strikes, lockouts, layoffs, and retrenchment, which are also defined in the document. Strikes involve a cessation of work, while lockouts involve employers closing businesses. Layoffs are temporary removals from payroll, while retrenchment is permanent termination for economic reasons.
This document discusses unfair labour practices in the United States and India. It provides definitions of unfair labour practices according to the National Labour Relations Act in the US and the Labour Relations Act in India. The key points are:
1) Unfair labour practices in the US and India include employers interfering with union activities, discriminating against unionized workers, and refusing to collectively bargain.
2) Complaints of unfair labour practices are investigated and may be settled or referred to arbitration if not resolved.
3) Examples of unfair practices discussed include suspending only union supporters, failing to promote workers for union activities, and occupational detriments for whistleblowers.
This document outlines the grievance redressal process for employees of a power sector organization in Meghalaya, India. It describes a 3-stage formal grievance process along with informal procedures. Key aspects include:
- Stage I involves filing a grievance with a supervisor. Stage II appeals to a department head. Stage III appeals to a Unit Grievance Redressal Committee.
- There are also Central Grievance Redressal Committees to handle appeals.
- Grievances must fall under categories like pay, promotions, discipline, and work conditions.
- The process aims to promptly and fairly resolve employee dissatisfaction to promote organizational functioning.
This document provides an overview of Utah's workers' compensation system. It discusses that workers' compensation is a no-fault insurance system that pays medical expenses and lost wages for work-related injuries. It also covers what types of employers and employees are covered, benefits provided, reporting obligations, disputes over fault for injuries, retaliation protections, and return to work processes.
Employers need to be aware that decisions they are making now about the size and make-up of their workforce will affect whether they exceed the 50 employee threshold that triggers the "pay or play" penalty in the Affordable Care Act. This presentation will focus on strategies for avoiding or minimizing exposure to the penalties under the Act.
This document provides an overview of key topics related to labor relations and collective bargaining. It begins with a brief history of the American labor movement and then discusses major pieces of labor legislation, the union organizing process, unfair labor practices, collective bargaining, and what constitutes good or bad faith bargaining. Examples and definitions are provided throughout to illustrate these labor relations concepts.
Collinson Grant supports clients in managing redundancy exercises by insisting on meticulous planning before any announcement is made. This is intended to ensure that the legal issues are understood and that the communication of the news of the redundancies is as effective as possible.
Specifically, we offer skills and experience in:
Creating an action plan and timeline for a redundancy exercise
Calculating likely and actual severance costs
Briefing managers on their responsibilities and necessary actions
Drafting communications to representatives, employees, customers and external agencies
Framing strategies for formal dialogue with employees’
representatives and consultation with individual employees
Arranging election of employees’ representatives, running meetings with them and ensuring follow-up actions take place
Developing criteria for selection for redundancy that are legally compliant and support the needs of the business
Conducting consultative meetings with individual employees
Organising appropriate support for outplacement Assisting in planning and implementing transfers.
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICSKimberly Stuart
The document summarizes key topics in employment law, including:
1) Proposed changes to FLSA regulations that would raise the minimum salary level for exempt employees to $970 per week. It also discusses the different exemptions under FLSA for executive, administrative, professional and highly compensated employees.
2) The importance of conducting self-audits to ensure compliance with FLSA, in order to claim the "safe harbor" defense against liquidated damages in the event of violations.
3) Issues that employers may face when raising salaries of exempt employees or changing their status due to the proposed FLSA changes. This includes examining overtime policies and workloads.
From the ACA, upcoming changes to the FLSA, OSHA penalties, and other ongoing compliance issues, HR and compliance managers have a lot on their plate in 2016. Join us as we cover tips, best practices, and how to use technology to better manage these issues and more.
An employee's relationship with the company can terminate for many reasons – resignation, reduction-in-force, performance and other work-related reasons. Planning for the departure of an employee, for any of these reasons, can minimize disruption, protect confidential information, avoid litigation and assist with succession planning. Join Polsinelli's Labor and Employment attorneys for the conclusion of our year long Life Cycle of an Employee Webinar series as we discuss issues related to employee terminations, including:
Managing performance and attendance related terminations
Can you terminate whistle-blowers
Exit Interviews
Protecting intellectual property and confidential information
Reductions-in-force and other separation agreements
Post-decision considerations and communications
These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR managers and HR directors.
At these events we present an overview of what we consider to be the most significant cases decided in 2015, and what they teach us about managing your workforce - together with our practical tips.
We also talk about what is coming up in 2016, and how you can get ready for what will be another busy year in employment law.
We will be covering the following topics:
• working time/travel time
• social media update
• discrimination and whistleblowing update
• Modern Slavery Act
• privacy in the workplace
• the latest on tribunal fees
• what's coming up in 2016.
https://www.brownejacobson.com/sectors-and-services/services/employment
The document discusses procedures for conducting redundancies, including:
- Establishing legitimate reasons for redundancy based on business needs and applying selection criteria impartially.
- Considering alternatives to redundancy and documenting efforts.
- Providing statutory notice and redundancy payments correctly.
- Supporting redundant employees during the process.
- Maintaining thorough records to defend against potential unfair dismissal claims.
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
Taking an in-depth look at Practice Management - How to ensure best practice management in a fast paced environment and Advocacy - Essential Skills for appearing in the Commission or Court and Ethics in Arbitration. This presentation is for union officials, Industrial/Legal Officers and Organisers
The first of its kind, this seminar is held to provide participants with information and knowledge regarding a constructive dismissal where employee resigns as a result of the employer creating a hostile work environment.
The Workmen's Compensation Act, 1923 provides compensation to workmen and their dependents for injuries arising out of and in the course of employment. The Act applies to various hazardous occupations and establishments. It defines key terms like employer, dependant, disablement and wages. Employers are liable to pay compensation in cases of work-related injuries or death. The amount of compensation depends on the nature of injury, wages and relevant factors. It can be paid as lump sum or monthly payments. Commissioners are appointed to determine compensation amounts and resolve disputes. Appeals against commissioner's orders can be made to the High Court within 60 days.
This document discusses rules and regulations related to outsourcing. It outlines key factors in determining the employer-employee relationship for contract labor. The main points are that contract labor are employees of the contractor, not the principal employer, unless the principal exercises direct control and supervision. There must be a clear agreement between the principal employer and contractor regarding wages and benefits for contract laborers. The law does not prohibit outsourcing for any sector but certain labor acts and regulations apply for contract laborers performing similar work as regular employees.
The document provides an overview of proposed amendments to South African labour laws following negotiations in NEDLAC. Key points include:
- The proposed amendments address issues like atypical employment (temporary workers, fixed-term contracts, part-time work), dispute resolution, collective bargaining, and compliance/enforcement.
- Debate has occurred over 6 themes, with disagreement remaining between business and government representatives.
- The amendments could impact employers by deeming temporary staff to be direct employees after 6 months, requiring equal treatment of fixed-term and part-time workers, increasing security deposits for dispute reviews, and expanding trade union rights.
- Business representatives argue the amendments should be tested against an earlier regulatory impact
This document summarizes recent and proposed reforms to UK unfair dismissal law. Key points include:
- The qualifying period for unfair dismissal claims will increase to 2 years for employees hired after April 2012.
- Compensation awards will be capped at £74,200 or one year's salary.
- Fees of £250-£950 will be introduced for unfair dismissal claims from Summer 2013.
- From 2014, employees must contact ACAS to attempt conciliation before filing a tribunal claim.
- New "employee owner contracts" may allow employers to offer shares worth £2,000-£50,000 in exchange for employees giving up most unfair dismissal rights.
- Protected settlement discussions will be renamed but
Industrial disputes(causes and consequences)Raj Akki
This document discusses various types of industrial disputes and their causes and consequences. It defines an industrial dispute as any disagreement between employers and employees related to employment terms or conditions. Causes of disputes include industrial factors like wages and hours, management attitude issues, government machinery problems, and other issues like union rivalry. Consequences include strikes, lockouts, layoffs, and retrenchment, which are also defined in the document. Strikes involve a cessation of work, while lockouts involve employers closing businesses. Layoffs are temporary removals from payroll, while retrenchment is permanent termination for economic reasons.
This document discusses unfair labour practices in the United States and India. It provides definitions of unfair labour practices according to the National Labour Relations Act in the US and the Labour Relations Act in India. The key points are:
1) Unfair labour practices in the US and India include employers interfering with union activities, discriminating against unionized workers, and refusing to collectively bargain.
2) Complaints of unfair labour practices are investigated and may be settled or referred to arbitration if not resolved.
3) Examples of unfair practices discussed include suspending only union supporters, failing to promote workers for union activities, and occupational detriments for whistleblowers.
This document outlines the grievance redressal process for employees of a power sector organization in Meghalaya, India. It describes a 3-stage formal grievance process along with informal procedures. Key aspects include:
- Stage I involves filing a grievance with a supervisor. Stage II appeals to a department head. Stage III appeals to a Unit Grievance Redressal Committee.
- There are also Central Grievance Redressal Committees to handle appeals.
- Grievances must fall under categories like pay, promotions, discipline, and work conditions.
- The process aims to promptly and fairly resolve employee dissatisfaction to promote organizational functioning.
This document provides an overview of Utah's workers' compensation system. It discusses that workers' compensation is a no-fault insurance system that pays medical expenses and lost wages for work-related injuries. It also covers what types of employers and employees are covered, benefits provided, reporting obligations, disputes over fault for injuries, retaliation protections, and return to work processes.
Employers need to be aware that decisions they are making now about the size and make-up of their workforce will affect whether they exceed the 50 employee threshold that triggers the "pay or play" penalty in the Affordable Care Act. This presentation will focus on strategies for avoiding or minimizing exposure to the penalties under the Act.
This document provides an overview of key topics related to labor relations and collective bargaining. It begins with a brief history of the American labor movement and then discusses major pieces of labor legislation, the union organizing process, unfair labor practices, collective bargaining, and what constitutes good or bad faith bargaining. Examples and definitions are provided throughout to illustrate these labor relations concepts.
Collinson Grant supports clients in managing redundancy exercises by insisting on meticulous planning before any announcement is made. This is intended to ensure that the legal issues are understood and that the communication of the news of the redundancies is as effective as possible.
Specifically, we offer skills and experience in:
Creating an action plan and timeline for a redundancy exercise
Calculating likely and actual severance costs
Briefing managers on their responsibilities and necessary actions
Drafting communications to representatives, employees, customers and external agencies
Framing strategies for formal dialogue with employees’
representatives and consultation with individual employees
Arranging election of employees’ representatives, running meetings with them and ensuring follow-up actions take place
Developing criteria for selection for redundancy that are legally compliant and support the needs of the business
Conducting consultative meetings with individual employees
Organising appropriate support for outplacement Assisting in planning and implementing transfers.
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICSKimberly Stuart
The document summarizes key topics in employment law, including:
1) Proposed changes to FLSA regulations that would raise the minimum salary level for exempt employees to $970 per week. It also discusses the different exemptions under FLSA for executive, administrative, professional and highly compensated employees.
2) The importance of conducting self-audits to ensure compliance with FLSA, in order to claim the "safe harbor" defense against liquidated damages in the event of violations.
3) Issues that employers may face when raising salaries of exempt employees or changing their status due to the proposed FLSA changes. This includes examining overtime policies and workloads.
From the ACA, upcoming changes to the FLSA, OSHA penalties, and other ongoing compliance issues, HR and compliance managers have a lot on their plate in 2016. Join us as we cover tips, best practices, and how to use technology to better manage these issues and more.
An employee's relationship with the company can terminate for many reasons – resignation, reduction-in-force, performance and other work-related reasons. Planning for the departure of an employee, for any of these reasons, can minimize disruption, protect confidential information, avoid litigation and assist with succession planning. Join Polsinelli's Labor and Employment attorneys for the conclusion of our year long Life Cycle of an Employee Webinar series as we discuss issues related to employee terminations, including:
Managing performance and attendance related terminations
Can you terminate whistle-blowers
Exit Interviews
Protecting intellectual property and confidential information
Reductions-in-force and other separation agreements
Post-decision considerations and communications
These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR managers and HR directors.
At these events we present an overview of what we consider to be the most significant cases decided in 2015, and what they teach us about managing your workforce - together with our practical tips.
We also talk about what is coming up in 2016, and how you can get ready for what will be another busy year in employment law.
We will be covering the following topics:
• working time/travel time
• social media update
• discrimination and whistleblowing update
• Modern Slavery Act
• privacy in the workplace
• the latest on tribunal fees
• what's coming up in 2016.
https://www.brownejacobson.com/sectors-and-services/services/employment
The document discusses procedures for conducting redundancies, including:
- Establishing legitimate reasons for redundancy based on business needs and applying selection criteria impartially.
- Considering alternatives to redundancy and documenting efforts.
- Providing statutory notice and redundancy payments correctly.
- Supporting redundant employees during the process.
- Maintaining thorough records to defend against potential unfair dismissal claims.
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
Taking an in-depth look at Practice Management - How to ensure best practice management in a fast paced environment and Advocacy - Essential Skills for appearing in the Commission or Court and Ethics in Arbitration. This presentation is for union officials, Industrial/Legal Officers and Organisers
The document provides an agenda for a presentation on shaping behaviors given by Catherine Louis. The presentation covers (1) why studying behavior matters using a story, (2) desired leader traits, (3) Morgan's Canon, (4) Pavlov's classical conditioning, and (5) Skinner's operant conditioning with exercises applying the concepts to leadership. Attendees are guided through group exercises to identify examples of the behaviorism principles in their workplace and characterize behaviors of great and terrible leaders.
Professional Development Final Presentation2reneedigiorgio
The document discusses positive behavior support strategies and classroom management best practices. It covers establishing clear expectations and rules, using positive reinforcement to encourage good behavior, understanding the function of problematic behaviors, and implementing targeted interventions like pre-correction, ignoring attention-seeking behaviors, and using group contingencies to encourage positive peer pressure. The goal is to prevent misbehavior through proactive teaching and use principles of behavior to address issues consistently in a positive manner.
The Workplace Health and Safety Act aims to protect workers through promoting safety awareness. It outlines mandatory requirements for employers and employees. Regular inspections identify hazards, which must be addressed. Managers must ensure inspections occur and issues are resolved. Workplace hazards can arise from substances, equipment, conditions, processes and practices. Any accidents or incidents must be reported within 24 hours to allow investigation and prevention of future issues.
Small Claims 2017: Essential Law, Winning Strategies for Lawyers & Paralegals Evelyn Perez Youssoufian
An employment law primer for paralegals and lawyers, including: Jurisdiction, Possible Claims, Human Rights, Employment Contracts, Wrongful Dismissal, including how to calculate reasonable notice
This document summarizes topics that will be covered in an employment law presentation, including:
- Duties owed by employers and employees under the Civil Code of Quebec (CCQ) such as the duty of loyalty and discretion.
- Basic rules regarding employment contracts such as interpretation and abusive clauses.
- Termination of employment including causes, notice periods required, and structuring termination packages.
- Restrictive covenants employers can include in contracts like non-competition agreements.
- Ensuring employment contracts are properly drafted and compliant with changing laws to manage risks.
This document provides an overview and agenda for a presentation on employment law topics, including non-competition agreements, duties owed by employees, contractual basics in employment, termination of employment, termination notice periods, indemnities and benefits, and restrictive covenants in employment contracts. It discusses the interpretation of employment contracts, abusive clauses, unfair contract terms, causes for terminating employment, calculating reasonable notice periods, structuring termination packages, duties of loyalty and discretion, and ensuring restrictive covenants are reasonable and enforceable. Case law is also summarized relating to pre-contractual agreements and reliance on the duty of good faith.
This document provides an overview and agenda for a presentation on employment law topics, including non-competition agreements, duties owed by employees, contractual basics in employment, termination of employment, termination notice periods, indemnities and benefits, and restrictive covenants in employment contracts. It discusses the interpretation of employment contracts, abusive clauses, unfair contract terms, causes for terminating employment, calculating reasonable notice periods, structuring termination packages, duties of loyalty and discretion, and ensuring restrictive covenants are reasonable and enforceable. The presentation aims to help employers understand how to properly terminate employees and protect company interests through employment agreements.
This document provides an overview and agenda for a presentation on employment law topics, including non-competition agreements, duties owed by employees, contractual basics in employment, termination of employment, termination notice periods, indemnities and benefits, and restrictive covenants in employment contracts. It discusses the interpretation of employment contracts, abusive clauses, determining what constitutes an unfair contract term, causes for terminating employment, calculating reasonable notice periods, structuring termination packages, drafting termination letters, duties of loyalty and discretion, and ensuring restrictive covenants are reasonable and enforceable. Case law is also summarized relating to determining the binding nature of pre-contract agreements.
Constructive Dismissals - Refreshing Law Ltd - HR Insights, June 2019James Cheetham
This document summarizes the key elements needed to establish a claim for constructive dismissal in an employment tribunal. It outlines that an employee must show: (1) a fundamental breach of contract by the employer; (2) the employee resigned because of this breach; and (3) they did not delay too long in resigning or affirm the contract through their actions. Examples of breaches include changes to pay or duties without consent. The breach must undermine the implied duty of trust and confidence between the parties when viewed objectively. A series of minor issues can cumulatively lead to constructive dismissal if there is a "last straw" incident. However, continuing work for a long time after the breach could result in affirming the contract
Management prerogatives refer to special rights granted to business owners under Philippine law. The key management prerogatives include the rights to hire and dismiss employees, transfer employees within the business, promote and demote employees, discipline employees, lay down policies, establish working hours, and organize and reorganize the business. Business owners also have rights to a reasonable return on investment and business expansion/growth. These prerogatives are derived from the Philippine Constitution and Civil Code and help business owners effectively manage their operations.
Management prerogatives refer to special rights granted to business owners under Philippine law. The key management prerogatives include the rights to hire and dismiss employees, transfer employees within the business, promote and demote employees, discipline employees, lay down policies, establish working hours, and organize and reorganize the business. Business owners also have rights to a reasonable return on investment and business expansion/growth. These prerogatives are derived from the Philippine Constitution and Civil Code and help business owners effectively manage their operations.
There is a glut of competitive product on the market, and sales and the company stock price are down. Damien Diamond has ordered immediate cost cutting, with significant implications both for the company's bottom line and the lives of the employees currently on the payroll. Failure to proceed in accordance with the law could make Datascram's problems even worse.
COVID-19 NSW Business Grants - Legal QuestionsTom Willis
In Part 2 of our Covid Support Series with POP Business, Lawyer Damin Murdock covers all the important legal issues facing businesses throughout lockdown and beyond.
Overholt Law - Spring 2016 Breakfast Seminar PresentationOverholt Law
This document summarizes an event hosted by Overholt Law, a boutique labour and employment law firm in Vancouver, BC. It provides an overview of the firm's areas of practice and lawyers. It also summarizes several presentations on topics related to human resources and employment law:
1. Preston Parsons discussed written employment contracts, including potential issues with introducing new contracts for existing employees, paying commissions and bonuses upon termination, and employees' obligation to provide notice when resigning.
2. Jennifer Kwok provided an overview of best practices for conducting workplace investigations, including establishing policies, managing the complaint process, and properly investigating complaints.
3. Carman Overholt discussed current legal issues and trends in
This document discusses security of tenure, which is the right of workers to not be removed from their jobs except for valid reasons and through proper procedures. It is protected under the Philippine constitution. The document outlines just causes for termination, such as serious misconduct, willful disobedience, neglect of duties, fraud, and commission of a crime. It also discusses authorized causes for termination like closure or cessation of business operations, installation of labor-saving devices, redundancy, and disease. Employers are required to provide separation pay in cases of authorized termination.
Change in management is very common in business. Both employer & employees get effected with it. The presentation gives reasons,responsibilities of management and rights of an employee.
The document provides an overview of a presentation on legally protecting trade secrets, customers, and employees. It discusses Florida laws on restrictive covenants, outlines five types of covenants, and explains how to draft enforceable agreements. It emphasizes having a plan to consistently enforce agreements through cease and desist letters and litigation if needed. The presentation aims to help businesses understand how to effectively protect their legitimate business interests through restrictive covenants and trade secret law.
The document discusses termination of employment contracts in Kenya. It covers various ways a contract can end, such as dismissal, retrenchment, resignation and death. It provides details on notice periods required for termination, prohibited reasons for termination, unfair dismissal, constructive dismissal, retrenchment procedures, terminal benefits owed to employees, and vacating employer-provided accommodation. Termination must follow applicable labor laws and provide required notices and benefits.
"Valid Termination: Substantive and Procedural Requirement under the Labor Code of the Philippines" presented by a Senior Corporate Lawyer of Kittelson & Carpo Consulting. Discussion Topic from ANZCHAM Coffee Mornings - October 28, 2015
The document discusses employment issues that may arise for businesses during an economic downturn. It outlines strategies for employee messaging, termination processes, workforce restructuring to avoid constructive dismissal claims, and managing contractor liability. The presentation aims to help businesses make informed decisions and mitigate risks regarding these employment matters during challenging economic times.
Top ten employment law tips scrase employment solicitors 180516Martin Augustus
From handling grievances to dealing with harassment, we will show you some of the traps employers can fall into and some simple ways to help you avoid them. This presentation is a must for newcomers to the HR profession and experienced HR practitioners alike. We will deal with the 10 issues we see coming up, time and time again.
This document summarizes a presentation on developments in unfair dismissal law given on June 13, 2018. It provides an overview of legislative changes, trends seen at conciliation and hearings, and updates on key case law regarding costs orders, permission to appear in unfair dismissal matters, treatment of high income earners and casual employees, medical incapacity, health and safety, dishonesty, and other issues. The presentation covers legislative definitions, available remedies, conciliation and hearing statistics, and summaries several important unfair dismissal cases from recent years.
This document provides a summary of recent developments in unfair dismissal and general protections law from a seminar presented by Giri Sivaraman of Maurice Blackburn Lawyers. It discusses three significant unfair dismissal decisions regarding performance management and sexual misconduct. It also summarizes four general protections cases involving adverse action in retaliation for workplace rights, refusal to hire a union official, failure to offer shifts after declining a contract, and making a complaint through another person. The document concludes with notes on bringing multiple claims to fair work commissions and industrial relations courts.
The document summarizes key aspects of two recent Australian laws:
1) The Fair Work (Registered Organisations) Amendment Act 2016 establishes an independent watchdog called the Registered Organisations Commission to monitor unions. It increases financial disclosure requirements and penalties for noncompliance.
2) The Building and Construction Industry (Improving Productivity) Act 2016 re-establishes the Australian Building and Construction Commission with broad investigative powers over unions. It prohibits certain industrial actions and expands the definition of unlawful coercion.
The document discusses criminal law and employment law issues that can arise when an employee's criminal conduct outside of work impacts their employment. It provides information on:
1) The test for determining if an employee can be dismissed for criminal conduct outside of work, which requires that the conduct damages the employment relationship or the employer's interests.
2) Examples of cases where employees were or were not dismissed based on this test.
3) Rules around workplace drug testing and policies, and cases related to drug use and driving under the influence.
4) When dishonesty or deception outside of work could provide grounds for dismissal if it impacts trust in the employment relationship.
Delivered by our Queensland EILS team, this seminar explored the manipulations of investigations by employers and the common issues and deficiencies of investigations. Case studies, tip and traps are covered.
Taking an in-depth look at the federal and state
discrimination laws and general protections provisions in the
Fair Work Act and comparing the scope of each scheme, procedural elements of each jurisdiction, outcomes available and possible risks. Focusing on recent case law and practical applications for union members. The presentation is for Union Officials, Industrial/Legal Officers and Organisers.
.
In our seminar, we look at the three big r's of workplace change: restructure, redeployment and redundancy, and the obligations of employers under relevant legislation.
Presentation by Maurice Blackburn head of Superannuation John Berrill to the Association of Superannuation Funds of Australia (ASFA) National Conference, Melbourne, 2014.
View John's profile: http://www.mauriceblackburn.com.au/our-people/lawyers/john-berrill/
This seminar, held in August 2014, discussing the pre, during and post stages of workplace investigations, including ways the union can assist a member during the investigative process, how to request and respond to findings, and how to use EBAs to structure investigations.
The document outlines the new workplace bullying laws in Australia, including amendments to the Fair Work Act that allow employees to make anti-bullying applications to the Fair Work Commission. It discusses the elements required for a bullying application, the orders the FWC can make, and factors considered. The laws aim to provide a mechanism for early intervention to stop bullying and complement existing occupational health and safety laws.
This document discusses social media and its impact on employment. It begins with an introduction to social media and defines key terms. It then discusses issues around the blurring of public and private spheres online and how social media posts can lead to unfair dismissal claims. The document provides several case studies where employees were dismissed for negative social media posts about their employers. It concludes with practical tips for teachers using social media.
Maurice Blackburn's Queensland Employment and Industrial Law Section delivered a seminar on Emerging Issues in Workplace Privacy on August 22, 2013. Topics included Surveillance in the workplace, Privacy Laws, issues surrounding social media and more.
Workplace bullying and amendments to the fair work act josh bornstein present...Maurice Blackburn Lawyers
The document summarizes new workplace bullying laws in Australia that take effect in January 2014. Key points include:
- The laws allow workers who have been bullied to apply to the Fair Work Commission for an order to stop the bullying.
- To make a claim, a worker must reasonably believe they have been repeatedly subjected to unreasonable behavior at work that poses a health and safety risk.
- The laws are intended to provide early intervention for bullying and complement existing occupational health and safety laws. They do not provide for compensation.
- Certain exemptions apply, such as for the military, and claims can only be made against businesses covered by federal law, not state laws.
How to deal with workplace bullying remains contentious. This speech by Josh Bornstein, examines the myths and misconceptions about workplace bullying.
The document discusses two proposed national insurance schemes in Australia: the National Disability Insurance Scheme (NDIS) and the National Injury Insurance Scheme (NIIS). The NDIS would provide long-term care and support for all Australians with significant and permanent disabilities. The NIIS would cover lifetime care needs for people who acquire a catastrophic injury from an accident. Both schemes aim to reform and improve upon the current fragmented disability support system. The document provides details on eligibility, coverage, funding, and implementation considerations for each proposed scheme.
This document discusses social media use in the workplace and related legal issues. It provides examples of employees being dismissed or facing legal consequences due to inappropriate social media posts. While employees have the right to express private opinions, courts have generally found dismissals justified if posts damage the employer's reputation or brand. The line between private and public is blurring, so employees must be careful about all social media use, both during and after work hours. Workplace social media policies aim to educate staff on appropriate usage.
LAND USE LAND COVER AND NDVI OF MIRZAPUR DISTRICT, UPRAHUL
This Dissertation explores the particular circumstances of Mirzapur, a region located in the
core of India. Mirzapur, with its varied terrains and abundant biodiversity, offers an optimal
environment for investigating the changes in vegetation cover dynamics. Our study utilizes
advanced technologies such as GIS (Geographic Information Systems) and Remote sensing to
analyze the transformations that have taken place over the course of a decade.
The complex relationship between human activities and the environment has been the focus
of extensive research and worry. As the global community grapples with swift urbanization,
population expansion, and economic progress, the effects on natural ecosystems are becoming
more evident. A crucial element of this impact is the alteration of vegetation cover, which plays a
significant role in maintaining the ecological equilibrium of our planet.Land serves as the foundation for all human activities and provides the necessary materials for
these activities. As the most crucial natural resource, its utilization by humans results in different
'Land uses,' which are determined by both human activities and the physical characteristics of the
land.
The utilization of land is impacted by human needs and environmental factors. In countries
like India, rapid population growth and the emphasis on extensive resource exploitation can lead
to significant land degradation, adversely affecting the region's land cover.
Therefore, human intervention has significantly influenced land use patterns over many
centuries, evolving its structure over time and space. In the present era, these changes have
accelerated due to factors such as agriculture and urbanization. Information regarding land use and
cover is essential for various planning and management tasks related to the Earth's surface,
providing crucial environmental data for scientific, resource management, policy purposes, and
diverse human activities.
Accurate understanding of land use and cover is imperative for the development planning
of any area. Consequently, a wide range of professionals, including earth system scientists, land
and water managers, and urban planners, are interested in obtaining data on land use and cover
changes, conversion trends, and other related patterns. The spatial dimensions of land use and
cover support policymakers and scientists in making well-informed decisions, as alterations in
these patterns indicate shifts in economic and social conditions. Monitoring such changes with the
help of Advanced technologies like Remote Sensing and Geographic Information Systems is
crucial for coordinated efforts across different administrative levels. Advanced technologies like
Remote Sensing and Geographic Information Systems
9
Changes in vegetation cover refer to variations in the distribution, composition, and overall
structure of plant communities across different temporal and spatial scales. These changes can
occur natural.
it describes the bony anatomy including the femoral head , acetabulum, labrum . also discusses the capsule , ligaments . muscle that act on the hip joint and the range of motion are outlined. factors affecting hip joint stability and weight transmission through the joint are summarized.
How to Add Chatter in the odoo 17 ERP ModuleCeline George
In Odoo, the chatter is like a chat tool that helps you work together on records. You can leave notes and track things, making it easier to talk with your team and partners. Inside chatter, all communication history, activity, and changes will be displayed.
This presentation was provided by Steph Pollock of The American Psychological Association’s Journals Program, and Damita Snow, of The American Society of Civil Engineers (ASCE), for the initial session of NISO's 2024 Training Series "DEIA in the Scholarly Landscape." Session One: 'Setting Expectations: a DEIA Primer,' was held June 6, 2024.
Main Java[All of the Base Concepts}.docxadhitya5119
This is part 1 of my Java Learning Journey. This Contains Custom methods, classes, constructors, packages, multithreading , try- catch block, finally block and more.
How to Fix the Import Error in the Odoo 17Celine George
An import error occurs when a program fails to import a module or library, disrupting its execution. In languages like Python, this issue arises when the specified module cannot be found or accessed, hindering the program's functionality. Resolving import errors is crucial for maintaining smooth software operation and uninterrupted development processes.
How to Setup Warehouse & Location in Odoo 17 InventoryCeline George
In this slide, we'll explore how to set up warehouses and locations in Odoo 17 Inventory. This will help us manage our stock effectively, track inventory levels, and streamline warehouse operations.
How to Manage Your Lost Opportunities in Odoo 17 CRMCeline George
Odoo 17 CRM allows us to track why we lose sales opportunities with "Lost Reasons." This helps analyze our sales process and identify areas for improvement. Here's how to configure lost reasons in Odoo 17 CRM
বাংলাদেশের অর্থনৈতিক সমীক্ষা ২০২৪ [Bangladesh Economic Review 2024 Bangla.pdf] কম্পিউটার , ট্যাব ও স্মার্ট ফোন ভার্সন সহ সম্পূর্ণ বাংলা ই-বুক বা pdf বই " সুচিপত্র ...বুকমার্ক মেনু 🔖 ও হাইপার লিংক মেনু 📝👆 যুক্ত ..
আমাদের সবার জন্য খুব খুব গুরুত্বপূর্ণ একটি বই ..বিসিএস, ব্যাংক, ইউনিভার্সিটি ভর্তি ও যে কোন প্রতিযোগিতা মূলক পরীক্ষার জন্য এর খুব ইম্পরট্যান্ট একটি বিষয় ...তাছাড়া বাংলাদেশের সাম্প্রতিক যে কোন ডাটা বা তথ্য এই বইতে পাবেন ...
তাই একজন নাগরিক হিসাবে এই তথ্য গুলো আপনার জানা প্রয়োজন ...।
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This presentation includes basic of PCOS their pathology and treatment and also Ayurveda correlation of PCOS and Ayurvedic line of treatment mentioned in classics.
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The simplified electron and muon model, Oscillating Spacetime: The Foundation...RitikBhardwaj56
Discover the Simplified Electron and Muon Model: A New Wave-Based Approach to Understanding Particles delves into a groundbreaking theory that presents electrons and muons as rotating soliton waves within oscillating spacetime. Geared towards students, researchers, and science buffs, this book breaks down complex ideas into simple explanations. It covers topics such as electron waves, temporal dynamics, and the implications of this model on particle physics. With clear illustrations and easy-to-follow explanations, readers will gain a new outlook on the universe's fundamental nature.
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. 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. 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. 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
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. • 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. 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. 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. 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. 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. 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. 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.
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. 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. 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. 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. 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. 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. 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. 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. Other relevant matters
Page 124 of 181
•
•
•
•
see section 387(h) of the FWA
differential treatment
long unblemished work history
summary dismissal
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. •
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. 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. 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. 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. Practice Notes
• fair hearings PN 2/2013
• unfair dismissal proceeding (draft practice note)
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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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)
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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74. ANY QUESTIONS?
Giri Sivaraman
Principal – Employment and Industrial Law Section
02 8261 0931
gsivaraman@mauriceblackburn.com.au
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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.