Today’s Workplace Part 2

Following on from March’s webinar, we continued our examination of topical issues including:

  • best practice strategies for understanding your diversity obligations;
  • when can you “refuse” to employ someone;
  • working from home… making it work for all involved;
  • temporary working visas and sponsorship of employees.

Can you sack an employee for sleeping in?

Beverley Thomas, Associate

Yes, you can, provided that you can demonstrate that dismissal was not harsh, unjust or unreasonable. The same may apply to other bad habits of employees that undermine an employer’s professional standards or policies.

Recently the Fair Work Commission (“Commission”) commended auctioneer house, Pickles Auctions (“Pickles”) on their approach toward the dismissal of a car detailer with a bad habit of tardiness. He had previously received numerous verbal and written warnings for poor attendance. The detailer, who had been employed by Pickles for close to seven years, filed an unfair dismissal claim following the termination of his employment because he had slept in and failed to notify that he would be late. His dismissal occurred after he attended work more than an hour past his scheduled start time. When questioned by Pickles in a disciplinary meeting as to why he was late, his response was simply that he thought “the time was earlier than it was”.

Pickles was successful in defending the unfair dismissal claim. This was mainly because it was able to satisfy the Commission that it had given the Applicant an opportunity to explain his late attendance and he failed to do so, in circumstances where he had “a demonstrated inability to improve his attendance conduct…”.The Commission also noted that Pickles’ approach to the procedural aspects of the dismissal “should properly be recognised as commendable”.

Here’s our top takeaways from the example set by Pickles if you are considering the ongoing employment of an employee with a bad habit.

  1. Keep a paper trail: Formally raising dissatisfaction with an employee’s conduct in writing can assist an employer to establish a valid reason for dismissal. In this case, Pickles was able to do just this as it relied on the six written and numerous verbal warnings given to the employee in respect of his ongoing failure to attend for work at the scheduled time..
  2. Ring the alarm: Employers mustn’t be shy to raise their concerns about unsatisfactory performance. Not only does it put an employee on notice that their conduct may be putting their employment in jeopardy but it allows them an opportunity to improve and meet the employer’s expectations. Pickles had evidence of raising concerns with the Applicant since 2011 and as recently as in the last 6 months of the employee’s service which minimised his ability to argue that he was not given the opportunity to improve his behaviour.
  3. Let the employee have their say: A dismissal is less likely to be deemed unfair if the employer can show that they gave the employee a chance to provide an explanation or defence for their unsatisfactory conduct. It is important that this step is not regarded as a “checkbox” to be “ticked off”. Proper consideration must be given to what an employee has to say. Pickles met with the Applicant to do exactly this but instead of immediately terminating his employment it adjourned the meeting to consider the employee’s excuse, his work history and the previous warnings given, before reconvening to terminate his employment.
  4. Offer a support person: Employees do not have a general entitlement to have a support person present at a disciplinary meeting but the unreasonable refusal of a support person may weigh against an employer in the event an employee requests one. For this reason it is recommended that employers offer an employee the opportunity to bring a support person along to a meeting where dismissal is a possible outcome.
  5. Know your expertise: The Commission is at liberty to scrutinise an employer’s management resources and whether the lack of HR expertise has impacted on the procedures followed in effecting a dismissal. The Commission was impressed by Pickles’ dedicated in house employment relations specialist in this matter and held them accountable for the proper and just dismissal of the Applicant. Seeking the external counsel of an employment law specialist like PCS can also assist an employer to meet this criteria.

Lunch not included: What is “work” for the purposes of reasonable additional hours?

A recent case involving claims made by three individuals (the “Applicants“) against their former employer (the “Company“) has shed further light on what will constitute “reasonable additional hours”.

The Applicants were not covered by any award or enterprise agreement during their employment with the Company and each of the Applicants had signed employment contracts with the following clauses:

Hours of Work

Your hours of work are those that are reasonably necessary to fulfil the requirements of your role, or such hours as are required by the Company. Core business hours are 8.30 am to 5.30 pm Monday to Friday. In addition, you may be requested to work rostered overtime or on-call periods from time-to-time by the Company.

Rate of Pay

Your salary will be […] dollars per annum, inclusive of superannuation. Your salary includes compensation for all hours that you are required to work.

The Applicants were directed to attend the Company’s offices Monday to Friday between 8:30 am and 5:30 pm and provided with a one hour lunch break each day.

Maximum weekly hours under the NES

The National Employment Standards (“NES“) under the Fair Work Act 2009 (Cth) provide that an employer must not require a full-time employee to work more than 38 hours per week unless the additional hours are “reasonable”.

The NES also sets out the factors that must be taken into account in determining the reasonableness of any additional hours of work. One of these factors is “whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours”.

Claim for overtime

The Applicants claimed they each worked an average of 45 hours per week (including lunch breaks), which is seven hours above the notion maximum of 38 hours per week. The Applicants argued that this arrangement was in breach of the NES and also sought payment for overtime on the basis of seven additional hours per week.

However, the Federal Court found that:

  • the Applicants’ unpaid lunch breaks did not count as time worked, and therefore the Applicants in fact worked an average of 40 hours each week;
  • the two additional hours (involved in the 40 hours per week) were “reasonable”, having regard to the factors set out in the NES; and
  • the Applicants had no entitlement to overtime under their contracts of employment in respect of the additional hours of work.

The Court therefore found that the Company had not breached the NES and dismissed the claim for overtime.

Lessons for Employers

  • Unpaid lunch breaks will not generally count as time worked for the purposes of the “maximum weekly hours” provision under the NES.
  • Requiring an employee to work two additional hours per week may be “reasonable” for the purposes of the NES.
  • Where appropriate, employment contracts should specify that the employee is required to work reasonable additional hours and that the salary paid to the employee includes compensation for such work.

Workplace gender equality reporting underway

Michael Starkey, Associate

With the beginning of April comes reporting season under the Workplace Gender Equality Act 2012 (Cth). Relevant employers have until 31 May 2016 to submit their reports, and this year brings a number of changes to reporting requirements.

Do I have to report?

All private sector employers who have employed 100 or more employees in Australia for any six months during the reporting period 1 April 2015 to 31 March 2016 are required to submit a report to the Workplace Gender Equality Agency (the “WGEA”).

All full-time, part-time and casual employees must be included in an organisation’s count of its employees, but from this year, independent contractors do not.

Changes to reporting requirements

From this year, relevant employers are no longer required to report remuneration data for their:

  • CEO;
  • managers more senior than the CEO and who report to a person overseas; and
  • managers employed on a casual basis.

However, there are new requirements for relevant employers to report on:

  • the number of appointments made, by gender and manager/non-manager status;
  • the number of promotions and resignations, by gender, employment status and manager/non-manager status; and
  • the number of employees who ceased employment at the end of a period of parental leave, by manager/non-manager status.

The WGEA hopes that this new data will “shine a light on drivers of workplace discrimination that ultimately lead to unbalanced outcomes for women such as gender pay gaps and a lack of women in management”.

Strategies for increasing women’s workplace participation

While data reporting and analysis is undoubtedly important, organisations should also consider more practical strategies they might implement to help improve gender diversity in the workplace. Such strategies might include:

  • leading from the top: senior leaders should articulate a clear vision for gender diversity, and organisations should adopt that vision in formal policies;
  • implementing flexible work practices: if feasible, allowing employees to work reduced or altered spread hours, or to work from home, can help increase the workplace participation of individuals with family or caring responsibilities; or
  • establishing recruitment targets for women: while strict quotas have the potential to be arbitrary, organisations may consider establishing recruitment targets (and analysing why they are not met if that turns out to be the case) to help overcome structural discrimination.

For help implementing strategies like these in your workplace, or for assistance meeting your reporting obligations, contact one of the PCS Team today.

Legal Professional Privilege: What is it and why is it important?

A lot of lawyers talk about “legal professional privilege” or “client legal privilege” and while this may sound like legal jargon that Harvey from Suits would use to impress a judge, privilege is a fundamental legal concept in Australia. This blog will briefly explain what legal professional privilege is and why it can be important for an organisation.

What is it and why does it exist?

Legal professional privilege is designed to preserve from disclosure confidential legal communications, and confidential documents, prepared for the dominant purpose of legal advice or litigation (actual or contemplated). In some circumstances, confidential third party communications can also be protected. This facilitates a free exchange of information between legal practitioner and the client, so that the client can be properly advised, without fear of potentially prejudicial information being disclosed at a later date. This in turn assists the efficient administration of justice and public interest overall.

What you need to know

For legal professional privilege to be established there must be a lawyer and a client, confidential communications or documents, which are created for the dominant purpose of legal advice or actual or anticipated litigation.

1.  Who are the lawyer and the client? 

There must be a professional relationship between lawyer and a client. Lawyers include all solicitors, barristers and in-house lawyers, provided they are acting independently and in a legal capacity. The client includes the person or body who engages the lawyer, as well as a corporate client’s employees or agents who are responsible for obtaining the relevant legal assistance.

2.  What are confidential communications or documents?

For privilege to apply, the relevant communications or documents must be confidential. This means there must be an express or implied obligation not to disclose the contents of the document or communication. Widely circulating legal advice throughout an organisation rather than containing it to those who “need to know”, for example, may indicate that a document is not confidential.

3.  What is the dominant purpose test?

Confidential communications and documents are privileged if they are created for the dominant purpose of the provision of legal advice or legal services relating to litigation. In everyday terms, the dominant purpose is the most influential reason for the creation of the document or communication. Simply labelling a document “privileged” or engaging a lawyer will not, without further consideration, be enough to attract privilege.

Why is it important for your organisation?

There are many situations that may arise in an organisation where it is desirable to obtain legal assistance and the benefits of legal professional privilege, for example, where a complaint is made by an employee or a health and safety incident has occurred.

The obvious benefit is that communications and documents attracting privilege retain their confidentiality and need not be disclosed, unless privilege is waived. This is particularly important in circumstances where the information is about matters that could bring the organisation into disrepute or is of a highly sensitive nature for example, sexual harassment investigations, executive terminations or confidential restructures.

In doing so, the organisation is able to protect itself against the possibility of this information being exposed to a third party and any repercussions this may have for the organisation, including damaging the corporate reputation or exposure in the media.