Dishonesty: a valid reason for termination or unfair dismissal?

Dishonesty: a valid reason for termination or unfair dismissal?

The Fair Work Commission recently handed down an interesting finding on the issue of dishonesty in the workplace as grounds for dismissal. Whilst the Commission had previously held that dishonest conduct was grounds for dismissal, the recent case discussed in this article exemplifies the need for a nexus between dishonest conduct and dismissal.

Valid reasons and unfair dismissal

Unfair dismissal claims lodged with the Fair Work Commission (FWC), including those involving genuine redundancies, can often be complex. To avoid a claim for unfair dismissal under the Fair Work Act 2009 (Cth), the termination must be made for a valid purpose and it must not be “harsh, unjust or unreasonable” or made for an unlawful reason.

Therefore, an important consideration for determining whether an employee’s termination constitutes unfair dismissal because it was harsh, unjust or unreasonable is whether there was a valid reason for that termination. We have provided examples of unlawful reasons and valid reasons for dismissal in another article concerning terminating an ex-partner’s employment.

Where the employee’s conduct is being used as a reason to justify the dismissal, it must be sufficiently connected to the employee’s employment and of sufficient gravity or seriousness to justify the dismissal as a “sound, defensible or well-founded” response. Applications to the FWC claiming unfair dismissal must be lodged within 21 days from the date the dismissal takes effect.

Previously, the Fair Work Commission has upheld that dishonest conduct in the recruitment process was grounds for dismissing an employee: see Garth Duggan v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945 (23 August 2018). In this case, the employee failed to disclose that he was subject to legal proceedings which would impact his ability to conduct work and was generally misleading during the formal interview process. The Fair Work Commission held that this dishonesty was a valid reason for dismissal, and is a timely reminder for all prospective employees to ensure they are accurately representing themselves to recruiters and employers.

Dishonesty and unfair dismissal claims

In the most recent case of Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, Mr Newton was dismissed by Toll Transport Pty Ltd from his employment as a truck driver after he was involved in a physical altercation outside of work. Mr Newton sought remedies for unfair dismissal with the FWC. In the initial proceedings, Deputy President Boyce found that Mr Newton had been dishonest to both Toll and the FWC, and that this, not the physical altercation outside of work, constituted a valid reason for dismissal. The Full Bench granted permission for Mr Newton to appeal this decision which was subsequently upheld.

The Full Bench held that Mr Newton’s dishonesty to the FWC could not constitute a valid reason for dismissal as this dishonesty did not occur at the time of the dismissal. Furthermore, it held that Mr Newton was not required to be honest in Toll’s investigation of his private conduct (the physical altercation), nor answer their questions, merely because these questions were asked at work. The fight had occurred outside of work and lacked a sufficient connection to his employment. However, the full bench held that an employee does have an obligation to answer their employee’s questions about private conduct honestly in some circumstances, such as if that conduct damaged the employer’s interests. In those circumstances, dishonesty would constitute a valid reason for dismissal. As the appeal was upheld, Mr Newton’s specific unfair dismissal matter is to be reheard.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with unfair dismissal claims or employment terminations. If you need further advice or assistance with employment matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Should You Be Keeping Your Pay a Secret?

Should You Be Keeping Your Pay a Secret?

Discussing salaries and remuneration is often a controversial and clandestine topic in the office. However, there has been a recent push towards greater pay transparency to allow for a more equal workplace in light of social and political changes concerning issues, such as the gender pay gap. This article will discuss whether an employer can enforce pay secrecy onto their employees, and what the potential advantages and disadvantages that having pay transparency can have.

The Legality of Pay Secrecy

The simple answer is: it is not illegal to discuss your pay. However, employers can restrict your ability to discuss your pay or remuneration within your employment contract. These clauses can be particularly common in industries where discretionary incentives are offered or where pay differentiates between employees based on performance.

Pay secrecy clauses have been banned in other jurisdictions, such as the United States and the UK, in order to reduce workplace discrimination. In 2015, Australia’s Gender Pay Gap Bill attempted to ban pay secrecy clauses, but it was unsuccessful. So whilst pay secrecy is still legal in Australia, it is important for businesses to make considerations based on their industry and business specifically, so it is important to seek personalised and experienced advice when making these decisions.

Advantages of Pay Transparency

As mentioned above, pay secrecy has been linked with actual or perceived workplace inequality. Actual inequality arises when businesses use pay secrecy clauses to unfairly differentiate the remuneration of employees based on discriminatory or unfair factors such as gender, ethnicity or age. Whereas perceived inequality occurs when employees assume that, due to the mere presence of a pay secrecy clause, that remuneration is unequal. Therefore, facilitating greater transparency can operate to quash any negative perceptions and demonstrate your business to treat all employees fairly.

Other advantages of pay transparency include:

  • Increasing employee motivation and job satisfaction;
  • Improve workplace culture;
  • Promoting flatter management structures; and
  • Improving the business’ reputation.

Disadvantages of Pay Transparency

Whilst there are clearly some advantages to abandoning pay secrecy clauses, these must be balanced with benefits that can come from enforcing pay secrecy in certain workplaces. These include:

  • Greater organisational control;
  • Less workplace conflict;
  • Protection of employee privacy; and
  • Maintaining greater employer bargaining power.

It is worth noting that pay secrecy will become more disadvantageous if competitors or the industry as a whole begin moving towards pay transparency, despite the advantages mentioned above.

How Etheringtons Solicitors can help

With over 30 years’ experience, Etheringtons Solicitors have a proven track record in providing tactical advice and representation in various contentious and non-contentious employment matters. Whether you are a business owner or an employee, our team are well placed to provide advice across a wide range of matters. If you or your business require further information in relation to pay secrecy, please contact us on (02) 9963 9800 or via our contact form here.

Employment Law Update: Casual Conversion and CEIS

Employment Law Update: Casual Conversion and CEIS

In March of this year, the government passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill which made significant changes to the Fair Work Act 2009 (Cth) regarding casual workers. Under the new laws, employers were given a 6-month grace period to make any adjustments to implement new rights for casual employees, and provide them with a Casual Employment Information Statement (CEIS). The deadline for this conversion is 27 September 2021, and this article will provide you with a brief guide on the legislative changes and what they mean for both employees and employers.

Changes to the Definition of Casual Employee

An employee will now be considered casual if:

  1. The employer makes no firm advance commitment to a continuing and indefinite pattern of work when offering employment; and
  2. The employee accepts the offer of employment on the basis that there is no firm advance commitment to a continuing and indefinite pattern of work.

Things to consider when determining if you have made a firm advance commitment to a continuing and indefinite pattern of work include the following:

  • Whether the employee can accept or reject work;
  • Whether the employee is entitled to casual loadings or specific rates of pay;
  • Whether the employee will work according to the needs of the employer; and
  • Whether the employment was described as casual employment.

Regular patterns of work will not in and of itself be indicative of a firm advance commitment to a continuing and indefinite pattern of work, however this may be the case in some circumstances. For example, if an employee is engaged on the basis that they will work a fixed amount of shifts on the same days each week for an indefinite period, this is unlikely to constitute casual employment under the new changes to the Fair Work Act.

Casual Conversion

Another key change relates to regular casual employees’ right to casual conversion. Essentially, a casual employee who has been employed for at least 12 months, or who has worked a regular pattern of hours in the past 6 months, has the right to be offered permanent part-time or full-time employment. Offers from employers for conversion must be in writing and given within 21 days from when the employee reaches 12 months of employment.

There are limited circumstances in which an employer is not required to make an offer for casual conversion. This will occur when there are reasonable grounds to not accept the offer based on facts that are known or foreseeable at the time of the decision. These include:

  • That the employee’s position will cease to exist within 12 months from when an offer should be made (i.e., once an employee is employed for 1 year) ;
  • The hours of work that the employee performs will significantly reduce within the next 12 months;
  • There will be a significant change to the days and times that the employee works; and
  • Making the offer would not comply with a recruitment or selection process required by law.

If an employer has reasonable grounds to not make an offer, they must provide written notice with detailed reasoning of why the offer is not being made within 21 days from which the employee reaches the 1 year mark.

In the instance an employer does not make an offer or provide notice detailing that they will not offer casual conversion, a casual employee has the right to request an offer for conversion if they meet the above eligibility requirements and:

  • The employee has not refused a previous offer of casual conversion in the past 6 months; and
  • The employer has not refused a previous request for casual conversion.

This request must be in writing and should appropriately coincide with the regular pattern of hours they have been working. Under the new legislative provisions, employers must provide a written response to a request for conversion within 21 days. If an employer chooses to grant a request, their response must detail in writing:

  • The type of employment (full-time or part-time) that the employee will be converting to;
  • The employee’s work hours after the conversion takes place; and
  • The date when the conversion will take place.

An employer can only refuse a request upon consultation with the employee and if there are reasonable grounds to refuse the request based on the circumstances known or foreseeable at the time of refusal.

Given the complexity of these new provisions, it is crucial that small business owners and employers begin assessing the eligibility of existing casual employees for conversion before 27 September 2021 to better manage their obligations to make offers or receive requests for conversion.

Casual Employees Information Statement

The Fair Work Ombudsman has introduced the Casual Employees Information Statement (CEIS) which must be given to all casual employees. The CEIS covers information about the rights of casual employees including:

  • the definition of a casual employee
  • when an employer has to offer casual conversion
  • when an employer doesn’t have to offer casual conversion
  • when a casual employee can request casual conversion
  • casual conversion entitlements of casual employees employed by small business employers
  • how the Fair Work Commission can act in dealing with disputes about casual conversion

These statements should be provided to all existing casual employees as soon as possible before 27 September and to all new casual employees moving forward. An employer can provide a copy of the CEIS to staff via:

  • mail;
  • email;
  • in person;
  • by fax; or
  • by emailing a link to a copy of the CEIS available on the employer’s intranet.

How Etheringtons Solicitors can help

Given the various legislative changes in recent times concerning casual employment, it is important to seek legal advice if you are unsure about your employment contract or concerned about your potential liability as an employer. You can contact the highly skilled employment law team at Etheringtons solicitors via our contact form or call 02 9963 9800 for a no-obligation discussion.



Can Your Employer Force You To Take Leave During Lockdown?

Can Your Employer Force You To Take Leave During Lockdown?

As NSW and other parts of Australia are plunged into another stay-at-home period due to the Covid-19 outbreak, businesses are once again likely to be feeling the pinch. Whilst many are able to work from home, some employers may look to ask employees to take annual leave if the company has ceased operations as a result of the lockdown. This article will address whether an employer can force an employee to take annual leave during lockdown, and the obligations of both parties in these circumstances.

How does annual leave work?

Annual leave allows an employee to be paid whilst having time off work. Generally, full time and part-time employees are eligible for a minimum of 4 weeks annual leave based on their ordinary hours of work, however the courts have also recently recognised a casual worker’s right to annual leave in some circumstances. Generally, annual leave is taken upon agreement between an employer and the employee. However, in unusual or extenuating circumstances, your employer may direct you to take annual leave.

Can my boss force me to take annual leave during lockdown because of COVID-19 restrictions?

In short, yes. An employer can direct employees to take some leave in limited circumstances such as when the business shuts down. Whilst this is common during the Christmas/New Year period, business have been extending this principle when COVID-19 restrictions force business shutdowns.

However this directive must be considered reasonable. Factors considered when determining reasonableness include:

  • Needs of the employee and the employer’s business
    • Agreed arrangements with the employee
    • Custom and practice of the business
    • Timing of the direction or requirement to take leave
    • Length of the period of notice given

Therefore, employers should be mindful to give notice as soon as practicable if such a directive will be issued to employees and specify the period for which they will be required to take leave. Employers can also ask you to take annual leave where you have an excessive annual leave balance, which is generally 8 weeks or more of accrued leave.

What if my employer is covered by JobKeeper?

If your employer is an eligible JobKeeper recipient, they can ask you to take paid annual leave, provided you keep a balance of at least two weeks paid leave. Generally, if your employer requests you to take annual leave that will not deplete your paid leave balance below two weeks, this is not unreasonable under the COVID-19 scheme. If you believe that the request is unreasonable, you can refuse to take leave, however this may not be advantageous to you. It is important to consider practical circumstances such as your working relationship with your employer, and speak to them about any concerns in the first instance.

Contact Etheringtons Solicitors

We represent both employers and employees in the changing landscape of the COVID-19 pandemic, so if you or your organisation needs further advice or assistance in relation to annual leave or other workplace entitlements, please call Etheringtons Solicitors on (02) 9963 9800 or fill out a contact form.

Does Unvaccinated Equal Unemployed?

Does Unvaccinated Equal Unemployed?

In light of the most recent COVID-19 outbreak in Sydney, there is widespread discourse surrounding the vaccine rollout in Australia. Whilst the COVID-19 vaccination is currently voluntary, the NSW Government has recognised there may be future circumstances in which proof of vaccination is necessary; for example, border entry or intrastate travel. Further, many industries such as the aged care sector have begun considering mandatory COVID-19 vaccines for all staff in order to prevent further outbreaks in vulnerable communities. So it begs the question, can an employer force an employee to get vaccinated?

Can my employer enforce mandatory vaccinations?

Mandatory vaccination policies can be considered lawful and reasonable, based on industry-specific considerations. In an era before COVID-19, this was only ever contested with the annual flu vaccine. But now, it has become strongly encouraged for aged care workers to get the COVID-19 vaccination, and some workers are objecting. This is particularly relevant as one of the pre-requisites of getting the COVID-19 vaccine is that you haven’t had a flu vaccine, creating competing priorities for health conscious individuals, as well as those who fall under the industry-specific ambit.

Whilst the issue of mandatory COVID-19 vaccines remains undetermined at this stage, Courts have recognised the ability of employers to terminate employment for failure to comply with other mandatory vaccination programs.

Recent Case Studies

The Fair Work Commission recently held in Barber v Goodstart Early Learning [2021] FWC 2156 that breaching a childcare employer’s mandatory vaccination policy constituted grounds for fair dismissal. In this case, Barber objected to the vaccination due to a “sensitive immune system” and other medical grounds, but failed to obtain a medical certificate exempting her from requiring the vaccine. In determining that the mandatory vaccination policy was reasonable, the Fair Work Commission considered various factors including;

  • Goodstart’s occupational health and safety obligations under the relevant legislation;
  • Government advice encouraging vaccination;
  • The unique risk to certain children cannot get vaccinated due to their age;
  • Whether the policy allowed for medical exemption; and
  • Whether the cost of vaccination was covered by the employer.

This finding was based on the previous case of Arnold v Goodstart Early Learning [2020] FWC 6083, in which Ms Arnold pursued an unfair dismissal claim after being dismissed for failing to comply with the directive that all employees receive a flu vaccination. Ms Arnold’s objection was not based on medical reasons, but rather she relied on international human rights instruments to justify her refusal. The Fair Work Commission observed that Goodstart’s policy regarding vaccination was ‘lawful and reasonable in the context of its operations’ and ‘necessary to ensure the company met its duty of care to the children in its care’.

Considerations for employers

Whilst the above cases illustrate that mandatory vaccination programs can be legal, this is dependent on the specific circumstances of the employee and their role. Generally, employers cannot introduce blanket mandatory vaccination programs unless there are genuine health or compliance justifications. In the context of COVID-19, it is important for employers to consider the concerns held by employees in relation to access to vaccines and potential side effects and allow employees to express their concerns where they exist to avoid feelings of discrimination.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of employment law matters, whether you are the employer or employee.

If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

The Pros and Cons of choosing a Self-Managed Super Fund

The Pros and Cons of choosing a Self-Managed Super Fund

Superannuation is a large component of building long-term wealth and retirement planning. Self-managed super funds are becoming increasingly popular as the investment structure for those who prefer greater autonomy and control over how their funds are being invested and accumulated. However, whilst self-managed super funds can be effective for building wealth and minimising tax burdens, they must be properly executed and managed in order to protect you and your family’s interests. Etheringtons Solicitors have a team of experienced solicitors who can assist you in a range of wealth management matters in a strategic and compassionate manner.

What is a self-managed super fund?

self-managed super fund (“SMSF”) is a private superannuation fund where the members are usually the trustees. Members of the SMSF run it for their benefit and are responsible for complying with the relevant laws. A SMSF can have up to four members, but it is quite common for there to be just one member.

A SMSF trustee is the person responsible for ensuring the SMSF is maintained for the purpose of providing retirement benefits. The trustee can be a company or an individual. For a single member SMSF, there must be two individual trustees, the other trustee must either be related to the member or be another person who is not an employer of the member.

Benefits in establishing a self-managed super fund?

1. Control and Choice of Investment

The primary benefit of a SMSF is the control and choice you have over how the funds are invested. For example, SMSF’s can invest in commercial properties, term deposits, shares and derivatives. SMSF’s are recommended for small business owners as the fund can receive steady income from the SMSF when the business property owned by the SMSF is leased back to the business.

2. Tax Minimisation

SMSFs grant greater flexibility than other superannuation structures to minimise overall tax payments. If you are a SMSF trustee, you are entitled to the reduced superannuation tax rate. Provided the SMSF complies with legislation, your investment return would therefore be taxed at a maximum of 15% in Australia.

The tax-free benefits are highly attractive. Benefits received after the age of 60 and pension payments received from the fund are tax-free. A SMSF with multiple members can also allocate earnings from members who are not retired to any retired members to realise additional tax advantages.

We highly recommend that you seek advice in relation to SMSFs as they may also be utilised for tax strategies around capital gains and franking credits.

3. Life Insurance

The following forms of personal insurance can be paid through a SMSF:

  • Life Insurance;
  • Total and Permanent Disability Insurance; and
  • Income Protection Insurance.

Life policies are often held in SMSFs because the funding of premiums can become tax deductible if certain contributions are allocated to fund the premiums. The level of cover and insurance needs are unique to each individual. Professional advice must be sought prior to taking out a life insurance policy through a SMSF.

Whilst there are clear benefits to having a SMSF, there are important factors to consider when deciding if it is the appropriate wealth building strategy for you.

Important Considerations

1. Time and effort of managing a SMSF

SMSFs require the trustee to take responsibility for all investment decisions, unlike an industry or retail fund. A sound understanding of investment options and markets is required to be a trustee of an SMSF. Poor decisions will impact the assets of the fund and the retirement savings of its members.

Furthermore, trustees are responsible for ensuring that their fund complies with legislation. If the ATO rules that there has been a breach of these obligations, it may impose high penalties on trustees who will be personally liable.

2. Cost of running a SMSF

The costs of running a SMSF are fixed and therefore can be disadvantageous when the assets held within the SMSF are low in value. The costs reduce in proportion to the value of the fund, and it is advised that the fund should contain at least $250,000 worth of assets to ensure the costs of running the SMSF are worthwhile.

3. Estate Planning

The superannuation benefits of a SMSF are not assets that automatically fall within the ownership of a person’s estate upon their passing. Allocation of benefits is decided by the trustee unless written direction is provided. Without careful consideration and planning, your superannuation funds may not end up where you want them to after your death.

You may properly document where superannuation benefits are to be directed upon the death of a beneficiary through a binding death nomination. A binding death nomination must be renewed every 3 years while a death benefit agreement is permanent until revoked, unless it is a non-lapsing nomination.

Contact Etheringtons Solicitors

Wealth management and estate planning takes careful contemplation. If you or someone you know requires more information or needs advice in relation to self-managed super funds, please contact us on (02) 9963 9800 or via our contact form.