Oct 27, 2020 | Employment Law
Why Employers Should Seek Professional Legal Advice Before Employee Termination
In a recent Federal Court case, a former senior employee of TechnologyOne has been awarded $5.2 million in damages (plus interest) under the general protections provisions in the Fair Work Act 2009 (Cth) as well as for a breach of contract with respect to incentive payments. The case, Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407, highlights the importance of investigating employee complaints, seeking legal advice before termination and ensuring that caution is taken when terminating employees.
Facts of the Case
Mr Roohizadegan commenced proceedings against TechnologyOne and Mr Di Marco, alleging that he was summarily dismissed on 18 May 2016 due to complaints he had made about workplace bullying. It was noted that TechnologyOne had both an ‘Open Door Policy’ and ‘Workplace Bullying Policy’ that were included in the contract of employment, meaning that Mr Roohizadegan was able to make these complaints as he was exercising a ‘workplace right’. The Respondents contended that the Applicant’s employment was not terminated due to the complaints but rather due to competing allegations made by other employees. However, the company had failed to complete an internal investigation in relation to the allegations made against Mr Roohizadegan, as suggested by their HR department.
Decision
The court found that the ‘Open Door Policy’ and ‘Workplace Bullying Policy’ were included in the contract of employment and that the Applicant was exercising his workplace right. The Applicant was successful in proving he was terminated as a consequence of him exercising this workplace right. In other words, the Court decided that an adverse action was taken against him for exercising his workplace right in contravention of s 340 of the Fair Work Act 2009 (Cth).
Comments at trial
The Court made several comments in relation to Mr Di Marco’s actions and decisions. Justice Kerr noted that ‘he twice rejected professional HR advice that it would be unfair to dismiss Mr Roohizadegan on the basis of mere allegations’ and that ‘his choice was to stand with the bullies rather than the bullied’. Justice Kerr stated that ‘to achieve effective deterrence, CEOs in like positions need to know that such temptations as he faced are to be resisted and that there will be a not insubstantial price for failing to do so’ in his consideration of the penalties against TechnologyOne.
Implications of the Case
The case highlights the importance of conducting a proper investigation of internal complaints and the significance of ensuring that, when terminating employees, the correct procedure is followed to ensure employers do not contravene the law. Moreover, it serves as a reminder that employers should always seek and follow professional legal advice in relation to employee disputes and termination.
How can we assist?
If you need assistance in dealing with workplace conflicts or you are dealing with workplace bullying, please contact us on (02) 9963 9800 or via our contact page to speak to our employment law solicitor.
Jun 3, 2020 | COVID-19, Employment Law
Several modern awards have been significantly varied by the Fair Work Commission (‘FWC’) to grant businesses and employees temporary measures to preserve the ongoing viability of businesses and jobs during the COVID-19 pandemic. In addition to the unpaid pandemic leave and annual leave flexibility that has varied over 99 awards since 8 April 2020, the NSW Government has inserted provisions in the Long Service Leave Act 1955 (NSW) relating to pandemic leave. Employers should become familiar with these important industry award changes which we will outline below.
Changes to Modern Awards in 2020
The Tranche 2 awards, including the following listed below, have been finalised and will come into effect from the 29 May 2020. In addition to unpaid pandemic leave, the following changes have been inserted that are temporary and will be reviewed on 30 June 2020:
1. Clerks — Private Sector Award 2010
Operational flexibility: employees can be asked by their employers to do any tasks that they have skill and competency for, even if they are not in their usual classification or normal work, given that the employee has the appropriate licenses and qualifications. If an employee is told to work above their usual classification for more than one day, they must be compensated by being paid at a higher rate.
Work from home agreements: Part-time employees can agree to have minimum engagements reduced from 3 hours per shift to 2 hours. Casual employees can agree to be paid for a minimum 2 hours’ work shift instead of 3 hours.
Ordinary hours change while working at home: Agreements can be made to allow employees to work between 6am to 11pm on Monday to Friday, and 7am to 12.30pm on Saturday.
Reduced hours: Any employee who has had their hours reduced can ask their employer for permission to find more work with another employer and/or access training, professional development and study leave through their employer.
See determination for further information.
2. Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010
Operational flexibility: An employee can perform any duties within their skill and competency provided that they are licensed and qualified to perform them. Employees engaged to perform higher duties must be compensated at a higher rate than their ordinary classification.
Working hours: An employer may direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week and be paid on a pro-rata basis. An employer may direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week (over the roster cycle).
Annual Leave: An employer may, subject to considering an employees’ personal circumstances, direct the employee to take annual leave with 24 hours notice.
See determination for the Hospitality Industry Award and the determination for the Restaurant Industry Award.
3. Educational Services (Schools) General Staff Award
Temporary reduced hours: An employer may issue a notice of intention in writing to direct an employee to reduce their ordinary hours by up to 25%. The direction will come into effect 5 days after the notice of intention was issued and will remain in force for a period of no more than 12 weeks.
Operational flexibility: An employee can perform any duties within their skill and competency provided that they are licensed and qualified to perform them. Employees engaged to perform higher duties must be compensated at a higher rate than their ordinary classification.
Other awards that have been varied include the Rail Industry Award, Contract Call Centres Awards and Manufacturing and Associated Industries and Occupations Award. See what other awards have changed in 2020 here.
Considerations for Employers
Employers must be aware of their changing obligations surrounding unpaid pandemic leave and any other laws, such as those relating to the JobKeeper subsidy. The greater flexibility in relation to job roles and duties, work hours and leave under some awards is a positive development towards enabling businesses to meet the challenges caused by the pandemic. However, employers must proceed with caution to ensure that their work agreements comply with these award variations.
Further Information
For further assistant on any matter relating to work from home policies or any workplace matter, please contact one of our experience employment and litigation solicitors on 02 9963 9800 or [email protected].
May 26, 2020 | Employment Law
The distinction between casual, full-time and part-time workers appears to be relatively straightforward. Casual workers are normally not entitled to paid annual or sick leave. Instead, they are paid casual loading of 25%. Recently, the Full Court of the Federal Court made findings in relation to the characteristics of a casual employee. It is common knowledge that certain benefits apply to different types of employment. However, a recent case in the Federal Court has addressed issues regarding casual workers and their entitlement to paid leave in certain circumstances. In this article, we review the meaning of a ‘casual worker’, the outcome of this recent case and what this case means for employees and employers alike.
Who is a casual worker?
A casual worker is an employee who does not have fixed obligations in relation to the length of time they will be employed and the hours they will work. They also do not receive paid leave such as sick or annual leave. A casual employee is usually required to work based on a roster, but this roster can change weekly and shifts are not guaranteed.
To compensate for the lack of commitment and uncertainty, casual workers are paid ‘casual loading’. Casual loading means the worker is entitled to a higher rate of pay than full-time or part-time employees working in a similar role.
A recent update in the law.
On 20 May 2020, the Full Court of Federal Court handed down a decision which affirmed that the casual workers who work with a predictable shift schedule and the commitment to work for a set period of time, or indefinitely were not casual workers despite how their employment contract classified them. These workers are entitled to paid leave, such as annual, sick and carer’s leave.
In this particular case, Mr Rossato, a coal miner, was employed for three and a half years by a labour hire company called ‘WorkPac’. Mr Rossato worked on a variety of different projects as a permanent employee despite being labelled ‘casual worker’ in his employment contract. Justice Bromberg found that the fact that Mr Rossato’s work pattern was assigned well in advance under a set roster, which necessitated on-going work during “the standard work week”, revealed that his employment was ‘regular, certain, continuing, constant and predictable’. These features were not that of a casual worker.
WorkPac argued that the total amount of casual loading paid to Mr Rossato ought to be off-set against the annual and sick leave to be paid to Mr Rossato. The Full Court rejected this argument.
What does this mean for employees and employers?
It is vital that employers review the working nature of their casual employees to ensure they meet the requirements of this work classification. If your casual workers appear to be working in a manner not consistent with a casual nature, you should discuss ways to fix this with your employee, perhaps through altering their employment contract to part-time or full-time employment.
Employees should firstly discuss their concerns with their employer if they feel they do not fall within the definition of a casual worker despite their classification under their employment contract. You should also consider seeking legal advice if you feel you are not receiving the correct entitlements.
Further Information
Navigating employment law issues can often feel daunting and overwhelming. If you would like more information on how we can assist you in regards to your employment law concerns, do not hesitate to contact one of our employment law solicitors on 9963 9800 or at [email protected]. For more information, check out our blog here.
Feb 14, 2017 | Employment Law
There are payment requirements in the building and construction industry that principals, head contractors, subcontractors and suppliers must follow. These are regulated by the Building and Construction Industry Security of Payment Act 1999 (the Act).
All contractors providing goods or services as part of construction work have the right to receive ‘progress payments’ for work delivered.
What To Do If You Have Not Been Paid
There are two steps to take if you have not received a payment schedule within the required number of business days after making a claim, or you have not been paid by the due date.
Step 1: Ensure you have made a claim for payment.
Step 2: Apply for adjudication.
Entitlement to Progress Payments
Contractors have a right to progress payments whether a contract is verbal, written or absent, and even if a contract states the contractor cannot claim progress payments. Unless otherwise stated in the contract, progress payment claims can only be made once per month.
The progress payment amount is calculated based on:
- The terms of the contract, or
- The value of the work carried out (if not specified in the contract terms).
Disputes
If there is a dispute over the amount of a progress payment owed, contractors can have an arbitrator determine the dispute under certain circumstances.
Summary of Key Deadlines
The tables below show the key deadlines that are set out in the Act for:
- Making a payment claim
- Responding to a payment claim with a payment schedule
- Applying for adjudication, and
- Making a payment withholding request.
Note your contract could specify shorter deadlines.
Payment Following a Payment Claim
After a payment claim is made for the construction work and services performed, the following due dates for payment apply.
| Payment Claim |
Key Deadlines/Due Dates* |
| Payment by Principal to Head Contractor |
15 days after claim is made |
| Payment by Head Contractor to Subcontractor (Non-Residential) |
30 days after claim is made |
| Payment by Head Contractor to Subcontractor (Residential) |
10 days after claim is made |
*business days.
Giving a Payment Schedule
A payment schedule may be given if the person responding to a claimant does not intend to pay the total amount claimed and states why. The payment schedule is only valid within the set periods outlined below.
| Payment Schedule |
Key Deadlines/Due Dates* |
| After claim is made before due date has expired |
10 days after claim is made |
| After claim is made after due date has expired |
5 days after receiving notice of intention to apply for adjudication |
*business days.
Adjudication Process
Only a claimant can start adjudication and they must apply within set periods. The key dates for the claimant, respondent and adjudicator in this process are listed below.
| Adjudication Application |
Key Deadlines/Due Dates* |
| Notice of intention to apply for adjudication |
20 days after due date has passed |
| Claimant receives payment schedule, does not dispute schedule but respondent fails to pay by due date |
20 days to lodge application |
| Claimant receives payment schedule, schedule amount is less than claim amount |
10 days to lodge application |
| No payment schedule received, due date has passed, respondent given notice of intention to apply for adjudication, respondent given further 5 days to give payment schedule |
10 days to lodge from last day of the 5 day notice period |
| Adjudicator acceptance |
Should be within 4 days of adjudication application, otherwise claimant can make new application |
| New adjudication application |
Within 5 days of becoming entitled to lodge new application |
| Adjudication response |
Due 5 days after receiving adjudication application from claimant, or 2 days after receiving adjudicator acceptance |
| Adjudicator’s decision |
Due within 10 days of adjudicator acceptance |
| Payment of adjudication amount |
5 days after release of adjudicator decision |
*business days.
Payment Withhold Request
A claimant who has made an adjudication application can serve a payment withholding request. This directs a principal contractor (above the respondent in a chain of contracts) to hold back a respondent’s payment, so there is enough money to cover a claim.
| Payment Withholding Request |
Key Deadlines/Due Dates* |
| Principal contract served with payment withholding request. If person no longer a principal contractor |
10 days to give notice to claimant |
| Claimant must serve adjudication determination on principal contractor |
Within 5 days of receiving determination |
| If adjudication application is withdrawn, claimant must notify principal contractor |
Within 5 days of the application being withdrawn |
| Claimant must serve notice of claim to principal contractor under Contractors Debt Act 1997 |
Within 20 days of serving adjudication determination on them |
*business days.
Please contact Etheringtons Solicitors if you want to utilise this regime by using the contact form or calling us on (02) 9963 9800.
