Playing it Safe: Complaints and the General Protections Provisions

Dealing with an employee complaint is never easy, but is part and parcel of people management. It is important for an employer to spot the difference between an employee voicing their concerns and an employee making a complaint and the difference is not always clear cut.

An employer may find themselves in hot water if it has not taken appropriate action to deal with a communication that the employee asserts was a complaint.

What is the scope of a complaint?

In Crawford v Steadmark Pty Ltd (No 2) [2015] FCCA 2697, Ms Crawford emailed her manager stating:

“After today’s meeting even though you had given us free time I returned to the store. On calling Michael for the evening to provide him with the daily figures a conversation followed of which the details and conduct was not warranted or appropriate. As a result I will not be attending tonight’s event.”

Ms Crawford’s manager responded saying;

“I am very sorry to hear that.

I am not entirely sure what has transpired -we shall discuss tomorrow…”,

but did not follow up with Ms Crawford directly or advise her of any inquires she had made and the matter did not progress any further until Ms Crawford’s employment was not renewed after the expiry of her fixed term contract.

Ms Crawford alleged that the employer had taken adverse action because of the “complaint” that she made.

The Federal Circuit Court agreed that a “substantive and operative” reason for why Ms Crawford’s employment was not renewed was because of the complaint that she had made about the Managing Director.

What does this mean for employers?

Whether the email was in fact a “complaint” was not in dispute in the case, as the employer accepted in its submissions that Ms Crawford had a workplace right to make a complaint and exercised that right. However, employers should be aware that even if a complaint is not made formally, an email or conversation may still be construed as a complaint for the purposes of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”).

If you are unsure whether a communication or representation made by an employee is a complaint and requires action, give the PCS team a call on (02) 8094 3100.

Five types of employee and how to deal with them

While a well-executed recruitment process can help filter out job candidates who might not be right for an organisation, it is not always possible to tell exactly what “type” of employee a person will be until they’re in the job. Here are five employee “types” you might come across and our top tips for dealing with them.

1. The Underperformer

Keeping in mind that an employee will not have access to the unfair dismissal jurisdiction for the first six or twelve months of his or her employment (depending on the size of the organisation), how to deal with the Underperformer will, in part, depend on how long he or she has been employed.

When confronted with a chronic Underperformer who does not respond to performance management, employers should consider the following questions:

  • “Does the Underperformer really want to be here?”
  • “Is it worthwhile attempting to negotiate a separation?”

2. The Complainer 

The Complainer is never happy, and everybody knows it. Complaints should always be taken seriously and employers should err on the side of caution, bearing in mind that an employee has a workplace right to make a complaint in relation to his or her employment, and to pursue a claim if adverse action is taken against them for exercising that right.

This does not mean, however, that unwarranted complaints should be allowed to affect workplace morale. Employers must assess whether a complaint is legitimate or symptomatic of a behavioural issue that needs to be addressed.

3. The Coaster

While not the poorest performer, the Coaster applies minimum discretionary effort to his or her duties and is not seen as adding value to the organisation. By developing a high-performance culture, an organisation can send the message that coasting is not enough.

One key to a high-performance culture is an effective performance management process. Performance management should be seen as a genuine opportunity, and an effective process will involve communicating shared goals, clearly defining targets and timeframes and ensuring investment on both sides of the table.

4. The Bully

It is important for an organisation to engender a culture of mutual respect and tolerance through behaviour and culture training for all employees, both on commencement of employment and throughout its duration.

An organisation must not turn a blind eye to the Bully’s misconduct. Doing so may expose it, for example, to vicarious liability for harassment or material obligations imposed on it under an order to stop bullying.

5. The Star

Organisations must not allow their best employees to get lost in the mix. An effective talent retention strategy should be developed, based around short-term and long-term monetary and non-monetary incentives, employee recognition and opportunities for career development.


​Can you sack a race-goer behaving badly?

As punters rest their weary heads the morning after Melbourne Cup, perhaps few will be regretting their race-day antics as much as the “girl in the blue dress”. It is likely that among the millions of people who have seen the footage of the woman pushing a police officer into a garden is her employer, no doubt aghast at her actions.

No employer wants to be associated with an employee behaving badly, but when such behaviour happens “outside of work”, a number of factors need to be addressed in answering the question: What can I do about it?

  • Is the behaviour really “outside of work”? Misbehaviour at a work-related event will often not be “outside of work” for the purposes of certain legislation. This will make it easier for an employer to demonstrate a link between an employee’s misconduct and the workplace, and take disciplinary action accordingly.
  • What does the contract say? A contract which allows disciplinary action to be taken against employees whose conduct (no matter the context) might threaten their employer’s reputation will provide a stronger foundation for acting on misconduct out of work. Contracts should also allow disciplinary action to be taken against employees charged or convicted with criminal offences which compromise employees’ ability to perform their duties or the organisation’s image.
  • Is after-hours conduct addressed in relevant policies? Organisational policies (including those dealing with social media use and behaviour and culture) should reinforce contractual protections by spelling out types of unacceptable behaviour, explaining why such behaviour may affect the organisation, and detailing possible disciplinary consequences.
  • What are the possible reputational consequences? The extent to which an employee’s after-hours misconduct might affect an organisation’s reputation is a yardstick by which disciplinary action should be measured. An employer should also consider whether a link can be made between a misbehaving employee and his or her employer by witnesses. Given the significant media attention the “girl in the blue dress” has received, in the right contractual and policy context, a stronger disciplinary response (up to and including termination of employment) may be warranted. In contrast, a scuffle at a local pub witnessed by few might be better addressed with a warning.
  • Always be willing to listen. An employee should always be given a genuine chance to explain his or her behaviour before a decision with respect to disciplinary action is made. Any disciplinary action taken should be about protecting the organisation, not punishing the employee.

How out-of-work misconduct is dealt with will always be specific to the circumstances and is likely to involve even greater complexities than dealing with misconduct at work. If you’re in need of guidance in this area, give one of the PCS Team a call on (02) 8094 3100.

No more 9 to 5? Working “reasonable additional hours”

Yesterday The Sydney Morning Herald reported that 5 million of Australia’s 7.7 million full-time workers work more than 40 hours a week, including 1.4 million who work more than 50 hours a week.[1] The article notes that “officially, Australians in full-time jobs put in 38 hours per week” – so how might these statistics be explained?

While the National Employment Standards (“NES”) in the Fair Work Act 2009 (Cth) set the maximum ordinary hours of work at 38 per week, an employer may request that an employee work “reasonable additional hours”.

Determining how many additional hours are “reasonable” is not always an easy task. Here are our top tips.

1.  It’s all about balance

The needs of the workplace will be taken into account, as will the personal circumstances of an employee. For example, it may not be reasonable to ask an employee with responsibility for a young family to stay back at night.

2.  Safety first

An employee should not be requested to work additional hours if doing so is likely to put their health and safety at risk. An overworked worker can be a clumsy worker who may put an employer at risk of breaching its obligations under work health and safety legislation.

3.  Be mindful of award obligations

Certain modern awards limit the hours an employee may be requested to work, as well as the period of time over which weekly hours may be averaged. Modern awards may also require that overtime is paid for additional hours worked in excess of ordinary hours.

4.  Have regard to your industry

It is understood that certain employees may be required to work more than 38 hours in certain weeks due to the nature of work in their industry. Fly-in fly-out miners and professional services employees working to client demand might fall into this category.

5.  Every case is different

Whether a request is reasonable will depend on all the circumstances; a request that is reasonable on one occasion might be unreasonable on another. If you are unsure of whether a request is reasonable, don’t hesitate to contact one of the PCS team for guidance.


Top five lessons for employers from the Rugby World Cup

The final of the Rugby World Cup is set and it could not be a more perfect matchup. While businesses in either Australia or New Zealand may have an influx of disappointed employees on Monday, organisations can use the opportunity to take a step back and learn a few things from the match.

1.  Stay out of the sin bin

Even the most minor infraction, if intentional, can put you a player down for ten minutes. Recently, the Fair Work Commission penalised an HR Manager for doing just that. Although the infraction only caused the aggrieved ex-employee about $180 in economic damage, the deliberate breach of the Fair Work Act ended up costing the individual HR Manager (player) $1,020 and the company (team) about $20,400. Just like in rugby, individual decisions can impact everyone on the team. Keep your head in the game and focus on the win.

2.  Strong leaders come in many different forms

Looking at the final of the World Cup, we have two distinct players leading their team into battle. Stephen Moore and Richie McCaw both do an excellent job getting the most out of their teammates but do so in their own unique style. There is not one trait or set of traits that makes a good leader. Knowing yourself and being the best you can be is the only way to be confident enough to inspire others to get the same out of themselves.

3.  Culture creates cohesion. Cohesion is hard to beat.

Look no further than the last minutes before kickoff in any All Blacks game. The Haka brings the team together in a way that is nearly impossible for others to rival. It amps up the players; it focuses their minds on the upcoming test; and finally, it sends a ripple through the opponents’ bodies (whether they are willing to acknowledge it or not) that shouldn’t be underestimated. Find your Haka at work to bring your workplace together and stand out from the competition.

4.  There’s no getting around the blood bin

Just like work, heath and safety obligations, you can’t get around the referee sending you off for an open wound. It’s not safe for the injured player and it’s not safe for the rest of the players on the field. Know your WHS obligations back to front and hold your employees accountable (while also reminding them of their personal obligations under the legislation) for any missteps. When people do need to be sent off, just like a world class medical trainer, fix the problem and do your best to put them in a position where they can safely get back in the action as soon as possible.

5.  Get your signals straight

During the Bledisloe Cup this year the All Blacks exposed some serious issues in the Wallabies’ lineouts, something that can’t happen this weekend if Australia hopes to beat their arch rivals. The need for clear signals and execution is the same in the workplace. Employees need to know the direction of the company if you want them to engage in the play. Having everyone on the same page is best practice and the key to a high performance culture.

At PCS we don’t like to pick favourites, but… Go Wallabies!!!

What’s the difference? Defending a General Protections Claim vs a Discrimination Claim

When an employee alleges experiencing discrimination at work and wishes to pursue a legal remedy, the employee has a variety of options available to them. Two of those options are a discrimination claim under Federal or State anti-discrimination law or recourse under the general protections provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).

It is beneficial for an employer to be aware of the differences between a general protections claim and a discrimination claim to understand why an employee may have chosen a certain legal path and to defend a claim in the event that it arises in their organisation.

1.   Not Just Confined to Discrimination

Under the FW Act, an employer is prohibited from taking “adverse action” against an employee or prospective employee “because of” various prescribed grounds which can be grouped into three main categories:

  • industrial activities;
  • workplace rights; and
  • discrimination.

This means that an employee or prospective employee could bring a general protections claim on the basis of discrimination as well as, for example, making a complaint in relation to their employment.

Anti-discrimination legislation, on the other hand, is confined to direct or indirect discrimination based on a prohibited ground under the legislation.

2.  Burden of Proof: the Reverse Onus

Importantly for employers, if an employee brings a general protections claim under the FW Act and can establish that they possess a particular attribute and allege they have suffered adverse action for that particular reason, the onus of proof falls on the employer to prove that the reason for the adverse action was not because the employee possessed a particular attribute. In other words, it is presumed that the employer’s action was taken for that discriminatory reason unless the employer can prove otherwise.

3.  Compensation Caps

Under Federal anti-discrimination law and State anti-discrimination legislation in Victoria, Queensland, Northern Territory, Tasmania and South Australia, there is no cap to the amount of compensation that an employee can be awarded if their discrimination claim is successful. The general protections provisions also do not provide for a cap on compensation.

However, a compensation cap of $100,000 is prescribed under the Anti-Discrimination Act 1977 (NSW) and $40,000 under the Equal Opportunity Act 1984 (WA).

This is important as some employees may tactically choose which jurisdiction they wish to bring their claim under based on whether there is a compensation cap.

4.  Costs

One of the purported benefits of bringing a general protections claim as opposed to a discrimination claim is the “no cost” jurisdiction under the FW Act. Costs will only be awarded in limited circumstances where the Fair Work Commission (“FWC”) is satisfied that the proceedings were vexatious or without reasonable cause. If a general protections claim proceeds to the Federal or Federal Circuit Court, costs may be awarded, but only in limited circumstances.

In relation to Federal anti-discrimination claims, the Federal Circuit Court and the Federal Court have a general discretion to order costs in these matters. Regulation of costs under State anti-discrimination varies, with claims beginning in a regulatory body, where parties try to conciliate the matter and bear their own costs. For example, in NSW a claim is commenced in the NSW Anti-Discrimination Board. If the matter is then referred the the NSW Civil and Administrative Tribunal, the parties will continue to bear their own costs except in special circumstances.

This is important as employers need to remain conscious of the commercial impact that defending a general protections application may have on its bottom line, (noting that it is unlikely that costs will be awarded against the employee if an employer successfully defends a general protections application).

5.  Time Limits

Under Federal and State anti-discrimination law, there is no time limit as to when a complaint can be made however, in general, a complaint may terminated if it is lodged more than 12 months after the alleged unlawful discrimination took place.

However, an employee who is terminated from their employment and wishes to bring a general protections application must apply to the FWC within 21 days of the termination (it is possible for the FWC to grant an extension). In other circumstances, (for example, where there has been no termination of employment) there is a six year time limit for an employee to make a general protections claim to the FWC.

If you have any questions or require any assistance with defending a discrimination or general protections claim, please call PCS on 8094 3100.

Federal government cracks down on drugs and alcohol on worksites

As of Friday last week, changes to the Building Code 2013 (the “Building Code”) by the Minister for Employment now require building contractor’s or building industry participant’s work health safety and rehabilitation (WHS&R) management system to demonstrate how drug and alcohol issues in the workplace will be managed in order to ensure that no person performing building work on site does so under the influence of alcohol or other drugs.

So what does this mean for certain contractors and subcontractors required to comply with the Building Code? 

In addition to the drug and alcohol issues being addressed by WHS&R management systems, certain building industry participants will also be required to implement a fitness for work policy to manage drugs and alcohol in the workplace. Contractors affected by these changes are those engaged in building work where the Commonwealth’s contribution to the project is at least $5 million (where the total project is worth less than $10 million) or any project where the Commonwealth’s contribution is at least $10 million regardless of the size of the project.

It is the responsibility of the principal contractor to demonstrate a management plan that addresses how those on site (including employees of the principal contractor, subcontractors and their employees and others) will be required to comply with a fitness for work policy with respect of drugs and alcohol.

The amendment to the Building Code requires regular and periodic testing for alcohol and drugs to be conducted at least once a month per site and must capture:

  • 10% of the workers per month for sites with less than 30 workers;
  • a minimum of 5 workers per month for sites with between 30 and 100 workers; and
  • a minimum of 10 workers per month for sites with over 100 workers.

Interestingly, the management plan must address how workers who attend for work affected by drugs and alcohol will be counselled and assisted, apart from any disciplinary action that might be applied.

What does this mean for your business?

While all building industry participants must review their existing WHS&R management systems and some must also develop a fitness for work drug and alcohol policy to ensure continual compliance with the Building Code, all employers should consider reviewing their WHS management system and drug and alcohol policy as part of providing a safe workplace and managing risk in the business.

5 tips on managing restructures

A business restructures a strategy for achieving efficiencies, increasing profitability or to adapt to a changing market. Here are 5 tips for achieving a smooth restructure as far as employees are concerned.

1.  Have a plan

Ask yourself:

  • What are the main objectives of the restructure?
  • Do any positions need to be made redundant to achieve this? 
  • How long will the process take? 
  • How will you communicate this to staff?
  • What risks are associated with the process?

A clear strategy will help the restructure proceed smoothly

2.  Know your industrial agreement

Make sure you are aware of the National Employment Standards as well as any modern awards, enterprise agreements or contracts that apply to your employees. These will detail any redeployment, consultation, notice and/or severance pay obligations. 

3.  Last employee hired is not necessarily the first to be fired

Selecting employees for redundancy must be based on fair and unbiased selection criteria that is clearly communicated and transparent to staff. You should consider the skills, knowledge and experience necessary to meet the operational requirements of the business in detailing such criteria.

4.  The position is redundant not the person

A redundancy is only genuine when an employer no longer requires a person’s job to be performed by anyone because of the operational requirements of the business. If you terminate an employee’s employment for redundancy and then employ another person in the same role, the redundancy can be challenged.

5.  Communication is key

Communicating effectively with your employees and other stakeholders is essential in protecting against claims and important in keeping the business productive and viable during what is often a time of uncertainty and change.

Employees should be made aware of the plan and timing of the restructure; this will dispel rumours and assist them to remain positive and productive.

Top 5 myths about employment contracts

The contract of employment is the first port of call when determining the rights and obligations of an employee and employer. Unfortunately, contracts are complicated. Read on as we dispel five myths to help make things simpler.

1.  The contract must be signed: while it is always preferable that an employee sign their contract of employment, it is possible to enforce a contract in the absence of a signature in certain circumstances. If an employee has demonstrated unequivocally through their conduct an intention to be bound by the terms of an unsigned contract, they often will be.

2.  Paying “above the award” means the award doesn’t apply: rates of pay and award application are different concepts. An employee who is paid in excess of the minimum rate of pay prescribed by an applicable award will still be entitled to the benefit of the other provisions of that award – for example, those regarding the manner of payment of wages and the process that must be followed in the event of a redundancy.

3.  A worker will be a “contractor” if the contract says so: the way in which a contract describes a worker is just one aspect of determining the nature of the relationship between that worker and the organisation that engages them; it is not final. Other relevant considerations include:

  • the degree of control exercised by each party; 
  • the way in which the worker is paid; and
  • whether the worker is held out to represent the organisation.

4.  Restraints of trade are never enforceable: restraints of trade are among the most complex of contractual provisions, and with good reason. Restraints that, for example, have insufficient regard to the nature of an employee’s role or are against the public interest will not be enforced. But if drafted properly, they can and will often be an appropriate means of protecting an employer’s legitimate interests.

5.  Contractual terms won’t change over time: employers should not assume all is said and done once an employee signs the contract. If, for example, an employee receives a significant promotion or new legislation is introduced, it is possible certain terms will become inoperative or new terms will be implied. Contracts should be reviewed regularly to ensure they are up-to-date and reflective of the employment relationship as it stands.

If you think your contracts might need a spring clean, please don’t hesitate to contact any one of our legal team.

Top 5 Best Practice tips for Commissions

In many industries, remuneration by way of commission is part and parcel of their business model. In others, it is used as an ad hoc way to provide financial incentive for their employees. No matter which approach an organisation takes, there are number of significant issues that the organisation needs to consider when implementing commission arrangements – here are our Top 5.

1. Commission Only Arrangements – generally it is unlawful to pay an employee on a commission only basis unless the employer is permitted to do so by an applicable Award. For example, the Real Estate Industry Award 2010 permits remuneration by commission only where as the Commercial Sales Award 2010 does not. Irrespective of whether they are Award-covered or not, employees must be paid at least the National Minimum Wage or the minimum wage set by an applicable Modern Award, whichever is the greater.

2. Know the Award requirements – Some Awards contain administrative requirements that employers and employees must adhere to before a commission scheme will be operative, for example a requirement that the employer must provide written confirmation of the commission scheme’s terms within 14 days of the employee commencing work. Failure to comply with the requirements of an Award may result in the commission scheme being ineffective and can cost an employer up to $54,000 per breach so it’s worth confirming your organisation’s obligations.

3. Commission as “earnings” – Organisations need to take care when determining when commission will be included in the calculation of employee entitlements. For example, commission payments are almost always considered ordinary time earnings for the purposes of calculating superannuation guarantee contributions, however they need not be taken into account when calculating paid leave entitlements (which are generally based on an employee’s base salary). In the context of unfair dismissals, commission payments are not counted towards earnings when determining whether an employee’s income takes them over the high income threshold as commissions are typically contingency payments that cannot be determined in advance.

4. Strategy – Commission structures should be designed around your organisation’s goals. Encourage teamwork with group sales targets. Keep motivation levels high and steady by matching the frequency with which you pay commissions with the average sales cycle. Think about the proportion of total remuneration that will be salaried vs. commission based, keeping in mind employee’s minimum entitlements as referred to above. Ensure that the commission arrangements are encouraging and achieving the desired behaviours. For example, Aggressive salespeople may be driven by high commissions but if client service and long standing relationships are of more importance, it may be more suitable to pay a higher base salary to retain loyal employees.

5. Clarity – Avoid unnecessary disputes and possible litigation with employees by drafting a clear commission policy. Simplicity is best and can serve to keep employees motivated if they are certain of what they need to do to earn a commission.

PCS can assist your organisation to take an innovative approach to incentivising and rewarding employees through commission schemes. Get in touch with us today to discuss your organisation’s needs.