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The use of social media in the workplace is not only tolerated by employers, but is now often actively encouraged. With employees increasingly required to engage with social media platforms during the course of their duties, the risks associated with social media have also become a challenge for employers, including the presence of online trolls.

Online trolling is when someone posts inflammatory, extraneous or off topic messages in an online community with the intention of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion. Online trolling can also go as far as targeting individuals with explicit content or in extreme circumstances may even involve death threats to the individual.

Some commentators have suggested that employers offer social media “self-defence training” in light of online trolling. Other employers have implemented strategies to minimise the risks associated with online trolling through their policies and procedures.

What obligations does an employer have to protect their staff from trolling?

Employers have obligations under work health and safety legislation to ensure, so far as is reasonably practicable, the health and safety of workers, including their mental health. Online trolling poses a significant risk to employees in this respect if they work primarily or exclusively on social media platforms. Online trolling, by its very nature, is aimed at causing offence or provoking emotional responses. If an employee is exposed to these sorts of provocative messages and images without having the necessary support or training to deal with them, an employer may find that it is at risk of being in breach its obligations where an employee’s health or welfare is adversely affected by the trolling.

Steps to counter the effects of trolling 

Employers need to be aware of ways in which they can help minimise the risk of harm to an employee arising from online trolling, particularly for employees who are expected to use social media as part of their everyday duties. Some examples include:

  1. implementing social media self defence training [the Australian Broadcasting Commission is an example of an organisation that has rolled out social media training after a number of employees were trolled online];
  2. amending their social media policies to include the steps an employee should take to manage online trolls and an escalation process for dealing with threatening and abusive messages; and
  3. ensuring that employees understand when and how to respond to online trolls, particularly where representing the employer in their online interactions.

What if your employee is the online troll?

There have been some reports about victims of online trolling notifying the employer of the person engaged in the trolling about these activities. A recent high profile example was a hotel worker being terminated from his employment after Fairfax Media columnist Clementine Ford screenshot the abusive and offensive messages that he had sent to her and forwarded these on to his employer, Meriton. Meriton responded by conducting an investigation into the employee’s behaviour and subsequently terminating his employment.

If you would like assistance with reviewing or preparing social media and electronic communications policies, procedures or training, please contact a member of the PCS Legal Team on (02) 8094 3100.

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Erin Lynch, Associate Director and David Weiler, Associate

Buy Alprazolam Canada produced by the Organisation for Economic Co-operation and Development this year found that “workers who involuntarily lose their jobs can face substantial economic and non-economic costs. On average, each year around 2.3% of Australian workers with at least one year of tenure experience job loss due to economic reasons such as corporate downsizing or firm closure. In an international comparison, Australia has been rather successful at providing new jobs relatively quickly to these workers, as 70% become re-employed within one year and almost 80% within two years, even if new jobs are sometimes of poorer quality”.

Effective change management in these circumstances requires employers to implement a strategic approach to what roles are still required within an organisation, whether the obligation to pay redundancy is in fact triggered, and what options may exist for redeployment. In this article, we have distilled some emerging themes arising from recent decisions in relation to redundancies. These include:

  • when employers are (and when they are not) required to make redundancy payments;
  • what types of employment count towards continuous service;
  • how employers should approach redeployment in the redundancy context; and
  • the impact of specific obligations under a modern award or enterprise agreement.

Redundancy as we know it

Under the Fair Work Act 2009 (Cth) (“FW Act”) a redundancy occurs if an 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.

Redundancy pay: not automatic

Often employees will perceive a situation where their role is no longer required as meaning that they are automatically entitled to redundancy pay (an outcome which can be more attractive than continuing employment in another position). However, employers should remember that the FW Act requires there to be a termination of employment before the entitlement to a redundancy payment arises.

The redundancy of a job or position does not necessarily amount to a termination of employment. Where the evidence demonstrates that, after identifying that a role is longer required, an employer has attempted to retain the employee’s services by offering an alternate position, there may be no termination of employment and, therefore, no entitlement to redundancy pay.

Whether making a particular position redundant and offering a new role amounts to repudiation of the contract of employment (which may lead to a termination of employment if the repudiation is accepted by the employee) will be determined by the terms of the relevant contract and the terms and conditions of the new role. For example, it is common (and in fact recommended) that employment contracts are subject to a condition that employees may be required to perform other duties that an employer may direct them to perform, having regard to their skills, training and experience, and that the employer may relocate them if the operational needs of the business require it.

In a recent case, an employee’s role was no longer required but the employer proceeded to offer various alternative roles. After turning down all of the roles offered, the employee alleged that he was entitled to redundancy pay, and when the employer refused to terminate his employment, he resigned. The employee then brought a claim for redundancy pay on the basis that he was constructively dismissed. The Court rejected this argument, in part, on the basis that the employer still required the employee’s services.1

When dealing with organisational change it is important for employers to consider whether the changes proposed are such that they are relatively minor and within the scope of duties that the employer can direct the employee to perform, as opposed to changes that amount to a termination (or repudiation) of employment.

How much do I need to pay?

If an employer determines that a redundancy payment is due, it then needs to undertake the task of determining the amount payable based on the employee’s period of continuous service with the employer.

The National Employment Standards (“NES”) contain the minimum redundancy entitlement that an employee will receive. An employee may be entitled to a more generous redundancy entitlement in accordance with their contract of employment, a policy, enterprise agreement or award.

In a recent decision2 the Fair Work Commission (“FWC”) determined that periods of “regular and systematic” casual employment will be counted towards redundancy entitlements in circumstances where an employee transitions from casual employment to permanent employment (and is not a casual employee at the time of the termination of their employment).

The effect of this decision is, so long as the period of casual employment was “regular and systematic” and was part of the period of employment from which the employee is being made redundant, there will be no break in service between the period of casual employment and the transition to permanent employment for the purpose of calculating redundancy pay.

Other acceptable employment

If an employee is entitled to be paid an amount of redundancy pay and the employer obtains “other acceptable employment” for that employee, the employer can apply to the FWC for an order to reduce the amount of redundancy pay, including to nil.

What constitutes “acceptable alternative employment” is a matter to be determined on an objective basis. The use of the qualification “acceptable” is a clear indication that it is not any employment which complies, but that which meets the relevant standard. There are core elements of such a standard, including that the work is of a like nature, the location is not unreasonably distant, and the pay arrangements comply with award requirements. This relevant standard will be dependent on the “entire factual matrix” and an “objective assessment of acceptability”.3 For example, where the alternative employment requires a change of location, the FWC will look at the additional travelling time and distance involved, and any consequential disruption to the employee’s personal life and circumstances.

Obtaining that alternative employment

In a recent case the question was whether the former employer had “obtained” the alternative employment. At first instance the FWC decided to vary the redundancy pay owed by an employer to 48 employees from their full entitlement to nil, on the basis that it had facilitated suitable alternative employment with a new employer. However, the decision was overturned on the basis that the former employer did no more than facilitate contact between the new employer and the employees. This simply led to an invitation being extended to those employees to apply for a position and to attend an interview, which may or may not have resulted in an offer of employment. The Full Bench of the Federal Court upheld this decision on appeal4, stating that:

“to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice. If the employment is not accepted, the question whether that employment was ‘acceptable’ will then arise.”

Know your industrial instruments

In addition to any consultation provisions, employers covered by an enterprise agreement or modern award must be conscious of other obligations that may arise under such instruments. In a recent case following a downsizing at the Port Kembla Coal Terminal, the enterprise agreement in question placed an obligation on the employer to “investigate all avenues to avoid forced redundancies, including the reduction of contractors” where permanent employees could instead adequately perform the duties of contractors. The Federal Court determined that the employer contravened this provision by failing to explore voluntary redundancies and by only considering reducing the use of full-time and permanent contractors (when at the time of the redundancies there were no such contractors). The court upheld an order to reinstate the employees affected by those decisions.5

Key Takeaways 

  • A role may no longer be required, but this does not automatically give rise to an entitlement to redundancy pay. 
  • Consider all periods of continuous service, including prior casual employment where there was a transition to permanent employment before the redundancies transpired. 
  • Identify what may be “acceptable” alternative employment and understand the active role that employers must play in securing it. 
  • Factor into the decision-making and implementation processes any particular obligations binding on your organisation as a consequence of an applicable industrial instrument.

1 Adcock v Blackmores Limited & Ors [2016] FCCA 265

2 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Donau Pty Ltd [2016] FWCFB 3075.

3 Lake Mona Pty Ltd T/A Cambridge Street Child Care Centre [2015] FWC 4098 at [29].

4 FBIS International Protective Services (Aust ) Pty Ltd v MUA and Fair Work Commission [2015] FCAFC 90, at [18].

5 Port Kembla Coal Terminal Ltd v CFMEU [2016] FCAFC 99.

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Employers are often fairly complacent about the fact that personal information that they hold regarding their employees, and the use or disclosure of that information, will automatically come within the terms of the employee records exemption. But a recent Buy Bulk Xanax Online decided by the Australian Privacy Commissioner highlights that while information may initially be collected and used for a legitimate purpose, it may subsequently be accessed for a different, improper purpose, and hence risk a breach of the National Privacy Principles (“NPPs“).

The Australian Privacy Commissioner has found that the Commonwealth Bank of Australia (“CBA”) breached the privacy of one of its customers when it improperly disclosed her personal financial information to her former employer (the Commonwealth Bank Mortgage Innovation Agency) (“MIA”) at a time when Fair Work Commission proceedings in relation to the termination of her employment were on foot.

As her former employer, MIA was a business selling CBA financial products. It was an authorised user for the purpose of accessing CBA customers’ financial information through the bank’s customer management software. The CBA contended that the accessing of her accounts by MIA was not in breach of the NPPs as it was for a legitimate business purpose, that is, it was necessary in order to investigate the propriety of her loan applications. The former employee alleged that the principal of MIA accessed her accounts for the purpose of tracking her financial position during the course of the FWC proceedings and hence obtained an advantage in settling her FWC claim.

On this point the CBA was found to have improperly given access to her personal information for a secondary purpose. The CBA were also found to have failed to take reasonable steps to protect her personal information from misuse in continuing to allow MIA access once it knew of the FWC proceedings and of the potential conflict of interest. The Australian Privacy Commissioner observed that “the principal of an external mortgage agency, with whom the complainant is currently involved in a FWC dispute, would not be an appropriate person to conduct such an investigation. “

In terms of a remedy, the Privacy Commissioner was not satisfied that there was a causal connection between the improper accessing of her accounts and the settlement of her FWC claim to justify an award of economic loss. However compensation for non –economic loss in the sum of $10,000 was awarded for the distress caused to the former employee as a consequence of the manner in which the BCA handled her personal information.

Potentially risky situations for employers include where they have the means to access, for example, a former employee’s financial information, and the employer is in a dispute with that individual, but continues to access their information. Another scenario likely to be problematic is where there is a conflict of interest that should preclude an employer from continuing to access such information, but it maintains its right to access such information, or fails to take steps to prevent potential misuse. Finally contractors fall outside the coverage of the employee records exemption, so care must be exercised to ensure that the collection, use, disclosure and granting access to contractors’ personal information is undertaken for a legitimate purpose at all times.

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Planning your response to absenteeism

Chris Oliver, Director and Michael Starkey, Associate

The Australian Human Resources Institute reported in March 2016 that the average Australian worker takes 8.8 days’ personal leave each year, 41 per cent of employers believe unscheduled absences have increased in the last 12 months, and 64 per cent of employers believe unscheduled absences are too high in their workforce.With the cost of unscheduled absences to the Australian economy estimated to be in excess of $44 billion each year (or $578 per employee per absent day),2 the desire of employers to manage absenteeism and unfitness for work is understandable.

The management of these issues requires a measured approach that removes the immediate frustration managers often feel when confronted by an unscheduled absence, but nevertheless remains alive to the detrimental affect that long-term, unresolvable absenteeism can have on a business’ bottom line. By noting the tips outlined in this article, business leaders can ensure their response to absenteeism facilitates getting the employee back to work, while at the same time positioning the business to make difficult decisions in a legally compliant way where this becomes necessary.

An integral part of planning is having a clear objective in mind. In managing workplace absenteeism, there are two distinct potential outcomes – either getting the employee back to work, or a termination of the employment. Our recommendation is to always manage absenteeism with a view to getting the employee back to work. By adopting this approach, managers are far more likely to make instinctively better legal and strategic decisions,and should the time come to move towards a termination of employment, the business will be in a better position to do so without delay.

Legal compliance

In dealing with unfit workers and absenteeism, it is essential that managers understand the minimum entitlements employees have in relation to absences from work for illness or injury (and the related rights of an employer to ensure those entitlements are exercised properly).

  • An employer owes a general duty of care to ensure, so far as is reasonably practicable, the health and safety of employees while they are at work.
  • Full-time and part-time employees are entitled to access any accrued paid personal leave when they are unfit for work due to an illness or injury. An employee seeking to take personal leave must notify his or her employer as soon as practicable that they are taking leave, and must advise the employer of the period, or expected period, of the leave. If required by the employer, the employee must also provide evidence that would satisfy a reasonable person that the leave is being taken for a genuine reason (for example, a medical certificate).
  • It is unlawful for an employer to take any adverse action against an employee because the employee has accessed, or proposes to access, personal leave. However, an employer can require an employee to comply with the notification and evidence requirements outlined above, and, where appropriate, take disciplinary action for any failure to comply.
  • An employer must not dismiss an employee because the employee is temporarily absent from work due to an illness or injury. The temporary absence protection will generally cease to apply to an employee once the employee has been absent from work for more than three months, or a total of three months over a period of 12 months.
  • In circumstances where an employee is eligible to bring an unfair dismissal claim, if the employee’s employment is terminated, an employer will have an obligation to ensure there is a valid reason for the dismissal and that the employee is afforded procedural fairness in relation to the dismissal.
  • An ill or injured employee will usually be regarded as having a “disability” for the purposes of disability discrimination law. Employers have an obligation under disability discrimination law to identify and makereasonable adjustments for employees with a disability. 
  • An employer must not take action against an employee because the employee has a disability, unless the action is taken on the basis that the employee can no longer perform the inherent requirements of the position, and would not be able to do so even with reasonable adjustments.

Getting employees back to work

With the above in mind, let’s take some time to consider the key steps to be undertaken in attempting to get an employee back to work.

Understanding the reason for absence

The key to solving a problem is understanding its cause. Understanding the reasons for an absence will place you in a better position to get an employee back to work, and help proactively prevent absences by eliminating or minimising those reasons if possible (particularly if the cause of the absence is not medical, but related to, for example, poor performance, lack of engagement, workplace stress, or bullying).

Determining what needs to be managed

Despite a worker’s absence, business must go on. Managers need to consider and plan for a number of issues, including the use of temporary resources to manage workloads, how to manage communications (both with the absent worker and internally), and how to manage the cause of the absence. Managing the cause of the absence is likely to include seeking medical certificates, and asking the employee for more information if what is provided is not sufficient.

“The key to solving a problem is understanding its cause.”

Identifying the inherent requirements of the role

Where an absence becomes long term, a business must ultimately turn its mind to whether the absence is likely to impede a worker’s ability to perform his or her role on an ongoing basis. In doing so (and to ensure compliance with a number of legal obligations) reference must be had to the “inherent requirements” of the role.

The inherent requirements of a role are those that are essential (rather than incidental or peripheral) to it. When identifying the inherent requirements of a position, regard should be had to the terms of the employment contract, the tasks performed by the employee, the requirements of the particular employment (including any legal requirements) and the organisation of the employer’s business.

Whether or not an employee can perform the inherent requirements of his or her role should be determined on the basis of the medical evidence. If the employee is unable or unwilling to provide sufficient medical evidence for this purpose, it will usually be appropriate to direct the employee to attend an independent medical examination (with a practitioner who will often be a specialist in the employee’s injury or illness).

Making reasonable adjustments

In determining whether or not an employee can perform the inherent requirements of his or her role, regard must be had to whether the role could be performed if “reasonable adjustments” were made. An adjustment will be considered a “reasonable adjustment” unless making it would impose unjustifiable hardship on the employer (for example, if making the adjustment would be intolerably expensive, impractical or time consuming). Reasonable adjustments may include:

  • providing flexible work hours;
  • providing time off work (including access to unpaid leave) in order for the employee to recover where there is a prognosis that recovery is feasible;
  • providing regular breaks for employees with chronic pain or fatigue; and/or
  • purchasing desks with adjustable heights, installing ramps and modifying toilets. More than one adjustment may be necessary, and more than one option may be available.
“In my opinion, matters such as limited working hours which gradually increase, alterations to supervision arrangements, modifications to face to face meeting requirements, amelioration of deadlines being too tight, changes in the kind of work being performed, minimising conflict situations, avoiding the need to lead teams, where all those matters are envisaged as necessary for a limited period of time of approximately three months, are adjustments which could have been made for [the employee] without imposing unjustifiable hardship on Australia Post.”
Watts v Australian Postal Corporation [2014] FCA 370

Terminations for unfitness for work

In the event that absenteeism is managed with the objective of getting an employee back to work, should a decision ultimately be made that the worker’s employment is no longer tenable, the business will be well-placed to implement that decision quickly, and in a way that minimises legal risks. An employer must be able to demonstrate that any termination of employment based on unfitness for work:

  • is based on sound medical evidence which demonstrates (at least) that the employee will not be able to perform the inherent requirements of his or her role for an extended period of time;
  • has been implemented in circumstances where the employer is able to demonstrate that no reasonable adjustments could be made to allow the employee to perform his or her role (including adjustments which are no longer reasonable, for example, because of their ongoing cost to the business);
  • has been conducted in a manner that is procedurally fair, including because the employer has advised the employee that it is considering terminating his or her employment on the basis of the employee’s inability to perform the inherent requirements of the role and provided the employee with a chance to respond; and
  • complies with any specific requirements under applicable policies or the employee’s contract of employment.

Key Takeaways 

  1. Planning to get an employee back to work will help you make the best decisions, both strategically and legally. 
  2. Employees do not have a right to indefinite absence from work – difficult decisions may need to be made, and, if so, need to be based on sound medical evidence and follow fair procedure. 
  3. Don’t go through the process alone – seek expert medical or legal advice as required.

1 Australian Human Resources Institute, Absence Management (March 2016), <Buy Xanax Powder Online>

2 AI Group, Absenteeisn & Presenteeism Survey (2015), <Buy Alprazolam Online With Mastercard>